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Despite outcry, sexual evidence in Bryant case could be admissible

By Matt Bean

Kobe Bryant
Kobe Bryant

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(Court TV) -- It's been called a "smear campaign," a "conscious misrepresentation," and a "fishing expedition."

But, despite the outcry from critics, the push by Kobe Bryant's lawyers to admit evidence of his alleged victim's sexual history may get support from the very law that protects sexual assault victims from having their sexual histories used against them.

In an exception to Colorado's tough rape shield law, evidence of an alleged victim's sexual activity -- from semen stains to pregnancies -- is admissible as long as it is "offered for the purpose of showing that the act or acts charged were or were not committed by the defendant." In other words, the law doesn't shield an alleged victim from all mention of prior sexual activity. (More on the law)

"The rape shield law is not an absolute bar to any evidence," said Karen Steinhauser, a former Denver prosecutor specializing in domestic violence and a professor at the University of Denver College of Law.

Bryant's lawyers used that exception at his preliminary hearing this week to rebut prosecution testimony about genital injuries sustained by the alleged victim.   

The "compelling evidence" they have linked to other sexual encounters included a pair of yellow, knit panties the 19-year-old hotel employee wore to her examination the day after the alleged assault.

The panties, admitted sheriff's detective Doug Winters on cross-examination, bore semen and pubic hair that could not be matched to Bryant, as well as the woman's blood. The woman also said she'd had sex with her boyfriend two are three days before the alleged attack, Winters said.

If the hotel employee had sex with more than one man during that time, Bryant's lawyers argue, she could have sustained her sexual injuries from any of those encounters.

Judge Frederick Gannett is expected to rule Monday on whether prosecutors showed they have sufficient evidence to hold a full-scale trial in district court. If he decides they have, as many expect he will, Gannett will touch off a behind-the-scenes battle over the controversial evidence.

But courtroom observers are divided over how influential the evidence will be.

"I think it decimates the prosecution's case," said Jeralyn Merritt, a Denver defense attorney.  "How is the jury going to determine beyond a reasonable doubt that she's telling the truth when one or two other people could have caused these injuries?"

"It's not a bombshell," countered the former prosecutor, Steinhauser. "What if she had sex with 100 men in a hundred days? Does that say whether Kobe Bryant forced her to have sex or not?"

Defense lawyer Pamela Mackey surprised many when, while cross-examining Detective Winters last Friday, she asked whether the woman's injuries could have been caused by having sex with three different partners in three days.   

Prosecutors immediately objected, citing pre-hearing discussions about what was, and what wasn't, fair game for open court.

"That's exactly what the judge was trying to prevent at the inception of the preliminary hearing by setting ground rules," said Norm Early, a former Denver prosecutor.

Gannett cut short the day's proceedings and solicited motions from both sides on whether the evidence should be admitted.  

In his filing, prosecutor Mark Hurlbert called the move "a conscious misrepresentation of the evidence in order to smear the victim publicly."

But Mackey and Haddon said prosecutors were the ones twisting the evidence, by bringing up the blood on the panties but not the semen.

"The clear implication of this testimony was that the accuser was bleeding due to the alleged sexual assault," said the lawyers in their brief.  "The prosecution deliberately mischaracterized that evidence by consciously failing to put before the Court all of the evidence concerning those panties."

Gannett's Wednesday decision to allow the testimony was issued behind closed doors, so it remains unknown whether the defense convinced him that the evidence satisfied an exception to the rape shield law, or whether he decided that Colorado's rape shield law does not apply to preliminary hearings. (Unlike in other states, Colorado's law does not specifically address preliminary hearings.)

Free to continue her cross-examination, Mackey brought up the yellow panties, revealing the basis for her three-men-in-three-days question.

"The first would be the June 27 sex with her boyfriend that she acknowledged to the detective, the second would be Kobe, and the third would be whoever's DNA was in her underwear," surmised Merritt.

Merritt believes that prosecutors opened the door to the rape shield exception when they charged Bryant with the level-three sexual assault charge. The level-three charge includes an element of physical assault, whereas the level-four charge (which carries the same maximum, life in prison, but a lighter, two-year minimum sentence) does not.

"The issue here is that Kobe Bryant is not just charged with sexual assault by overcoming the accuser's will, he's charged with overcoming the accuser's will through the application of physical force," said Merritt. "Once they introduce that, [Bryant] has a right to show that he isn't the person that committed the act of force."

Bryant's attorneys will have to file written notice within 30 days of the start of a trial offering proof that the material is relevant, and then win a face-off with prosecutors at a special pretrial hearing in district court.

That hearing, too, will take place behind closed doors. But regardless of its outcome, the damage to the prosecution's case may have been done when the evidence was revealed during the preliminary hearing, according to former prosecutor Early.

"You can't unring a bell," Early said.

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