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Bryant Is Seeking Closed Hearing

Accuser's attorneys use previous argument by defense to support the position that she shouldn't have to testify.

September 13, 2003|Steve Henson | Times Staff Writer

In related strategic moves, Kobe Bryant's defense team asked that next month's preliminary hearing be closed, while attorneys for the woman who has accused him of felony sexual assault used the words of the Laker star's own counsel to argue against her testifying.

Bryant's attorneys stated in briefs Friday that media coverage would threaten their client's right to a fair trial and sharply criticized how a recording of a statement by Bryant was obtained. They also strongly suggested that a closed proceeding would eliminate the apprehension the woman feels about appearing -- thus removing her reason for not wanting to testify.

"Closure of the preliminary hearing thus would serve two purposes," attorney Hal Haddon wrote. "Safeguarding Mr. Bryant's constitutional rights and preventing the 'anxiety' that the prosecution claims the complaining witness in this case would experience if she were to testify."

Hours earlier, an attorney for Bryant's 19-year-old accuser argued against her testifying by pointing out that Haddon's firm took a similar position while representing an accuser in another sexual assault case.

A Haddon associate wrote in a 2001 brief that a defendant had no right to subpoena the accuser for a preliminary hearing or subsequent motion hearings, and that doing so amounted to "a fishing expedition."

Haddon and Pamela Mackey, Bryant's Denver-based attorneys, have issued a subpoena for the NBA star's accuser to testify at the Oct. 9 preliminary hearing.

"Given their involvement in [the 2001 case], defense counsel ... is aware of the controlling law and their attempts to compel the victim to testify at the preliminary hearing cannot be in good faith," wrote John Clune, an attorney representing Bryant's accuser.

Dist. Atty. Mark Hurlbert also has asked that the woman not be required to testify. Hurlbert was unavailable for comment, and his position on closing the preliminary hearing is unknown. Earlier, he sided with Bryant in wanting court files to be kept from public view.

Haddon argued that allowing an open preliminary hearing would needlessly make public court records and other evidence sealed by Judge Frederick Gannett in August.

Gannett would determine at the preliminary hearing whether enough evidence exists for a trial. Prosecutors plan to present a videotaped interview with the accuser, photographs of her injuries and a recorded interview with Bryant. They also expect to call Det. Doug Winters to outline the case against the five-time NBA All-Star.

Haddon wrote that the interview with Bryant is inadmissible as evidence "because it is the product of a surreptitious tape recording during the custodial interrogation of defendant without any advisement of his Miranda rights.

"The public revelation of this potentially inadmissible statement is a compelling ground for closing the preliminary hearing."

Keeping the hearing out of public view increases the possibility -- regarded as slim by legal experts -- that Gannett would require the accuser to testify, giving Haddon and Mackey an opportunity to cross-examine her. If Gannett rules that she does not have to appear, the defense is expected to consider waiving the hearing.

Mackey and Haddon also on Friday issued more subpoenas, asking that undisclosed people at the Vail police department, the Eagle County sheriff's office, the Best Western Eagle Lodge and the Resource Center of Eagle County testify at the preliminary hearing.

The Vail police department handles and keeps records of emergency calls from various law enforcement and fire agencies. The Resource Center operates a crisis hotline. The defense already issued subpoenas requesting the accuser's medical records.

In its final action of the day, the defense opposed a motion by a media group to allow audio and video transmission of the preliminary hearing to a second courtroom that would house overflow media.

If convicted, Bryant, 25, faces a sentence of 20 years to life. He admits having sex with the Eagle woman at a resort June 30, but says it was consensual.

Bryant, who is free on $25,000 bond, had been in Colorado to have knee surgery.

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