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Bryant Might Not Have a Preliminary Hearing

Prosecutor's failure to file a motion puts proceedings on Oct. 9 in jeopardy. Judge bans cameras on that day.

September 09, 2003|Steve Henson | Times Staff Writer

EAGLE, Colo. — Cameras will not be allowed at Kobe Bryant's Oct. 9 preliminary hearing on a felony sexual assault charge, a judge ruled Monday, although there is no guarantee the court appearance will take place because of what legal experts say was a mistake by the prosecutor.

Dist. Atty. Mark Hurlbert could have ensured a hearing by filing a motion within 10 days of Bryant's initial court appearance Aug. 6. Because Hurlbert failed to do so, Bryant's attorneys can waive the preliminary hearing and allow the case to proceed directly to an arraignment.

"This is where the D.A. screwed up," said David Lugert, a former Eagle County deputy district attorney now in private practice.

"Now the defense can waive it and the D.A. can't do [anything] about it. All because he didn't file a little piece of paper saying he wanted a preliminary hearing too."

A spokeswoman for Hurlbert said he made a conscious decision not to make the request.

"He could have made certain that there would be [a preliminary hearing], but it was not anything that slipped his mind," Krista Flannigan said. "I'm not able to address the reasons behind his specific strategy."

Experts are divided on whether it is in Bryant's best interests to waive the hearing, during which a judge determines if enough evidence exists for a trial. The testimony and physical evidence Hurlbert is expected to present is already known to the defense.

Bryant is charged with sexually assaulting an Eagle woman June 30 in a room in a mountain resort at Edwards, Colo., where she worked and he was a guest. He says they had consensual sex.

"There is a significant chance the preliminary hearing won't occur," said Craig Silverman, a former Denver deputy district attorney. "The defense might feel there is more to lose than to gain. All that is going to happen is investigators will get up there and read the reports, which the defense has already read."

However, Bryant's attorneys, Pamela Mackey and Hal Haddon, might believe the case could be dismissed at a preliminary hearing. They also could subpoena Bryant's 19-year-old accuser to test her resolve on the witness stand.

At Bryant's news conference at Staples Center on the day he was charged, Mackey opined that the evidence was weak: "No prosecutor should file charges unless the evidence is so strong that the case can be proven beyond a reasonable doubt. The evidence in this case falls far, far short of that standard."

The decision by Eagle County Judge Frederick Gannett to prohibit courtroom cameras might nudge Mackey and Haddon toward holding the hearing.

"[The graphic details are] going to come out at some point anyway and the defense is going to have to deal with it," said Karen Steinhauser, a University of Denver law professor. "Their job is to make sure they are giving their client the best possible defense. And if that means putting officers on the stand and cross-examining them to test the adversarial process, that's what they will do."

Should the defense waive the hearing, Hurlbert can ask that it take place. But the judge can ignore the request -- something he could not have done had Hurlbert asked for the preliminary hearing before Aug. 16.

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