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Transcripts: Prosecution Feared Evidence Rulings Favoring Kobe

Defense Expert Says DNA Proves Accuser Had Sex After Her Encounter With Bryant

POSTED: 9:41 pm MDT August 2, 2004

UPDATED: 6:15 pm MDT August 3, 2004

DENVER -- A spokeswoman for Kobe Bryant's prosecution team said Tuesday that newly released transcripts provide only limited details from a closed hearing on the sex life of the woman accusing the NBA star of rape.

"It is one-sided information and we hope that people will keep that in mind," spokeswoman Krista Flannigan said. "That's what the trial is for."

District Judge Terry Ruckriegle redacted 68 lines out of some 200 pages of June 21-22 testimony dealing in part with Colorado's rape-shield law and its role in preventing the accuser's sex life from being admitted as evidence. The majority of the transcripts were released late Monday.

The documents include a candid assessment by the prosecution about its chances should the judge rule on a number of key evidentiary issues.

"If in fact you were to rule that all of the rape-shield evidence were going to come in this case, I'm thinking the prosecution is going to sit down and re-evaluate the quality of its case and its chances of a successful prosecution," Prosecutor Ingrid Bakke told the judge.

The transcripts were mistakenly e-mailed by a court reporter to The Associated Press and six other news organizations, which battled Ruckriegle to the U.S. Supreme Court to publish the contents.

In releasing the transcripts, Ruckriegle said he concluded he must disclose the details despite concerns about compromising the privacy rights of the accuser and Bryant's right to a fair trial.

"It is with great reluctance that this court releases these transcripts," Ruckriegle wrote. "The effect of this release is to present narrowly limited, one-sided evidence and argument to the public prior to the selection of a jury and without reference to the totality of the evidence."

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The voicemail of the accuser's attorney, John Clune, was full and a second attorney, Lin Wood, did not return a call.

Nathan Siegel, an attorney for the media groups, said: "We're pleased that Judge Ruckriegle makes clear that our persistence in pursuing this to the Supreme Court has led to releasing a significant amount of information that had been restrained."

Bakke's comments came near the end of a hearing that dealt primarily with the accuser's sexual activities around the time of her June 30, 2003, encounter with Bryant.

The defense has claimed the woman, who is now 20, had multiple sexual partners in the three days surrounding her time with Bryant. It has suggested her injuries could have been caused during sex with someone other than the Los Angeles Lakers star.

It has long been known that another man's semen was found on the alleged victim and her underwear during her hospital exam following the alleged assault.

Prosecutors have theorized that the woman might have put on underwear that hadn't been washed before going to the hospital, thereby transferring semen from the man identified as "Mr. X" to her body.

However, during the June hearing, defense expert Elizabeth Johnson said she didn't think that was likely because none of that semen was found on Bryant during his exam, suggesting the encounter with the other man followed her encounter with the NBA star.

Prosecutor Mark Hurlbert asked Johnson whether some of Mr. X's DNA could have been transferred to her body from a yellow pair of underwear she wore to her hospital exam.

"Now, in your hypothesis you said that the -- the transfer really couldn't have happened, essentially, correct? Or highly unlikely? Is that a better way to put it?" Hurlbert asked.

"No, I said it couldn't explain the presence of Mr. X's sperm everywhere in the absence of it on other strategic items of evidence," Johnson said.

The defense also plans to have a Colorado Bureau of Investigations expert testify on their behalf on the issue. Defense lawyer Pamela Mackey asked to have Yvonne Woods testify at the June hearing but Ruckriegle said she should submit her testimony in writing instead.

The woman's lawyer has denied she had sex after the alleged assault.

A court filing made public Tuesday indicated prosecutors would present their own DNA expert if the defense presents evidence of unidentified semen in the woman's underwear. The expert would testify that semen stains on cotton can persist long after washing, the filing said. Flannigan said she could not provide more details on the expert's background.

Bryant, 25, has pleaded not guilty to felony sexual assault, saying he had consensual sex with the woman, now 20, at a Vail-area resort last summer. If convicted, he faces four years to life in prison or 20 years to life on probation, and a fine up to $750,000.

Ruckriegle late last month said the defense can present evidence about the woman's sexual activities in the three days before a July 1, 2003, hospital exam, saying it is relevant to help determine the cause of her injuries, the source of DNA evidence and her credibility.

Also in July, the judge allowed Bryant's tape-recorded statements to investigators and a T-shirt stained with the accuser's blood to be admitted. He has not yet ruled on a prosecution request to limit testimony about the woman's mental health, including what friends described as two suicide attempts.

During the June hearing, Bakke told the judge the prosecution's case could be damaged if one or more of those decisions favors the defense.

"That ruling, the ruling on the mental health issues and the suppression of the defendant's statements make a significant change in the case, meaning the parties may have more or less willingness to negotiate based on that," she said at the time.

Ruckriegle told Bakke he understood but he would not allow plea negotiations once a trial date was set. Three days later, he set an Aug. 27 trial date. He has twice extended the deadline for a plea deal, most recently to July 28.

During the hearing, District Attorney Mark Hurlbert said there were brief discussions about a plea deal, but the two sides were "very far apart." The defense team has never commented on the possibility of a plea deal and legal experts say there is little chance they would seek one.

While the information is damaging to the prosecution, it could also potentially hurt Bryant, according to Craig Silverman, a Denver defense lawyer and former prosecutor who has been following the case.

With three weeks left before Bryant is set to go on trial, Silverman said potential jurors could reach strong conclusions about the alleged victim or prosecutors based on the new information and such people will not be allowed to serve on the jury.

"People are allowed to view publicity as long as they can commit to set it aside. Given the strength of what I've seen (in the transcripts), some people will form an unshakable conclusion that this young lady lacks credibility or that the prosecution is flawed," Silverman said. "Kobe Bryant would have preferred jurors to have reached that conclusion during trial."

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