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NEWS ANALYSIS

Surprises Are Likely to Continue

The Bryant case hearing resumes amid accusations from prosecutors that the defense misrepresented evidence.

October 15, 2003|Steve Henson | Times Staff Writer

EAGLE, Colo. — Kobe Bryant's court case resumes today, six days after a drama-filled, five-hour session ended in fireworks. Legal analysts are expecting more incendiary surprises from the Laker star's defense attorneys.

How much of the testimony the public will be privy to, however, won't be decided until moments before the preliminary hearing resumes.

Prosecutors on Tuesday asked Judge Frederick Gannett to examine in closed session the admissibility of "certain sexual history evidence," and they accused defense attorney Pamela Mackey of "conscious misrepresentation of the evidence in order to smear the victim publicly."

The preliminary hearing, usually a perfunctory exercise, began Thursday with often-riveting testimony by Eagle County Sheriff's Det. Doug Winters, who said the 19-year-old accuser stated that she was in Bryant's hotel room when he grabbed her around the neck and raped her after she said no.

Mackey had barely begun her cross-examination when a volatile exchange with Winters brought the proceeding to an abrupt halt.

Winters said a nurse who examined the woman July 1 told him the woman had vaginal injuries consistent with penetrating genital trauma and not consistent with consensual sex.

"Are they consistent with a person who had sex with three men in three days?" Mackey asked.

Prosecutors objected, Gannett called a recess and instructed the attorneys to join him in his chambers.

A gag order prohibits lawyers and others from discussing the case publicly, but legal analysts say attorneys from both sides may emerge from today's proceedings having accomplished their goals.

The prosecution, based on Winters' testimony describing the woman's version of events, has almost certainly met the relatively low standard of probable cause that would send the case to trial. And experts say that the defense has laid the foundation for an acquittal based on reasonable doubt in what appears to be a classic he-said versus she-said.

Bryant, 25, has been free on bail since he was charged July 18 with felony sexual assault for the alleged rape at a resort in Edwards, Colo., the night of June 30. He has acknowledged having sex with the woman, a hotel concierge, but says it was consensual. If convicted, he faces four years to life in prison.

Mackey will resume cross-examining Winters today. Sources close to the defense say Mackey also is expected to argue that the accuser must testify before probable cause can be established. Gannett, who weeks ago denied a defense motion asking that the woman appear, is unlikely to agree.

The defense is not expected to call witnesses, sources said, because doing so would give prosecutors an opportunity to cross-examine them.

"It's like a boxing match," said Jack Earley, the incoming president of California Attorneys for Criminal Justice. "Both sides are feeling each other out. It's not meant as a final act."

Additional testimony pertaining to the woman's alleged sexual history probably will be done in closed session, experts say, because Gannett used similar rationale to keep testimony of Bryant's statements to Winters private.

The defense contends that the statements Bryant made July 1 to Winters are inadmissible at trial because he had not been read his Miranda rights. Similarly, there is a question whether the woman's sexual history should be admissible at trial because of rape-shield laws.

"Prosecutors have a good basis for asking that any discussion of promiscuity be in private," said Craig Silverman, a former Denver chief deputy prosecutor. "The damaging statement made by Kobe Bryant may be subject to suppression, therefore it was not made public. This evidence of alleged promiscuity is also subject to possible suppression, so it too should not be available to the public."

Under Colorado's rape shield law -- considered one of the nation's strongest -- most of an accuser's sexual history is not admissible at trial. However, there is an exception for evidence that shows a previous sexual act with someone other than the defendant could have caused injuries.

At trial, prosecutors must be given a 30-day written notice and a chance to argue against such revelations, but the law does not apply to preliminary hearings. Prosecutors indicated in their filing Monday that Mackey's question was unexpected.

"The people certainly expected an attack on the evidence presented at the hearing," Deputy District Atty. Ingrid Bakke wrote. "But ... it was quite unexpected that Ms. Mackey would in such a deliberate and calculated manner attempt to elicit such evidence regarding the victim without notice in open court attended by the media."

Some legal analysts say prosecutors have no one to blame but themselves for giving Mackey an opportunity to question the woman's sexual history. The photos of vaginal lacerations that prompted her question did not need to be presented to establish probable cause, according to Earley.

"Did they really need this as part of their case?" he asked.

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