Craig's Court: DA Calls Time Out -- What Is Going To Happen Now

Posted March 10, 2004

A week ago, Kobe Bryant got badly hurt in the first minute of an NBA game. His right shoulder was injured again and the prognosis was for him being out at least a month. Tonight, he was back playing.

Although he shot four for 16, Bryant had double-digit assists and his Lakers won. Kobe Bryant thinks he can win games with one good arm -- even if it is not his shooting arm. He never likes to come out of the game. He always wants the game to continue.

Not so for the Eagle County DA. He is constantly calling time out. Mark Hurlbert asked Judge Ruckriegle for a time out on March 2, 2004 as the rape shield hearing got underway. That request for a stay was denied by the Chief Judge for the Fifth Judicial District. As a result, a procession of witnesses who saw the accuser lick and be licked at a Calgary nightclub several weeks after the alleged rape were called to testify. (See Globe cover of a couple weeks ago.)

The Eagle County DA is apparently not fighting the defense request to find out at a private hearing about the sexual conduct of the 19-year-old Eagle County alleged victim from June 28 to July 1, 2003. The big dispute now is whether the defense can go beyond that in their rape shield presentation.

Lots of reasons have been set forth by Bryant's defense team to justify this intrusive inquiry. Much has been made of the manner of sex and how the rapidity and manner of the sexual intercourse is suggestive of rape. But what if the defense has evidence from other men that this young lady likes fast rear penetration sex while being bent over a piece of furniture? What if the accuser had sex with one or more prosecution witnesses? What if she lied to the rape kit nurses when asked about other sexual encounters? There are lots of ways to knock aside this shield.

Unhappy with the trial court's unwillingness to grant his time out, the DA has gone to the Supreme Court for a stay and a reversal of Judge Ruckriegle's decision to allow an expansive rape shield hearing. It is like the NFL's Instant Replay rule. I do not expect the Supreme Court to act unless it has indisputable evidence that the referee on the field (Ruckriegle) made a mistake.

What will happen next? The Colorado Supreme Court can agree or disagree to hear the appeal (known as an original proceeding). Team Kobe cannot even respond unless the high court asks them to. The Colorado Supreme Court can issue an opinion or not. Here are the critical components of Colorado Appellate Rule 21 which makes clear what we can next expect:

g) Stay; Jurisdiction.

    (1) The filing of a petition under this rule does not stay any proceeding below or the running of any applicable time limit. If the petitioner seeks a temporary stay in connection with the petition pending the court's determination whether to issue a rule to show cause, a stay ordinarily shall be sought in the first instance from the court or tribunal. If a request for stay below is impracticable or not promptly ruled upon or is denied, the petitioner may file a separate motion for a temporary stay in the Supreme Court supported by accompanying materials justifying the requested stay.

    (2) Issuance of a rule to show cause by the Supreme Court automatically stays all proceedings below until final determination of the original proceeding in the Supreme Court unless the court, sua sponte, or upon motion, lifts such stay in whole or in part.

(h) No Initial Responsive Pleading to Petition Allowed. Unless requested by the Supreme Court, no responsive pleading to the petition shall be filed prior to the court's determination of whether to issue a rule to show cause.

(i) Denial; Rule to Show Cause.

    (1) The court in its discretion may issue a rule to show cause or deny the petition without explanation and without an answer by any respondent.

    (2) The clerk, by first class mail, shall serve the rule to show cause on all persons ordered or invited by the court to respond and shall provide copies to the judge or other officer in the proceeding below.

(j) Response to Rule to Show Cause.

    (1) The court in its discretion may invite or order any person in the proceeding below to respond to the rule to show cause within a fixed time, and may invite amicus curiae participation. Any person in the proceedings below may request permission to respond to the rule to show cause but may not respond unless invited or ordered to do so by the court. Those ordered by the court to respond are the respondent.

    (2) The response to any order of the court shall conform to section (c) and (d) of this rule.

    (3) Two or more respondents may answer jointly.

(k) Reply to Response to Rule to Show Cause. Petitioner may submit a reply brief within the time fixed by the court.

(l) No Oral Argument. There shall be no oral argument unless ordered by the court.

(m) Opinion Discretionary. The court, upon review, in its discretion may discharge the rule or make it absolute, in whole or in part, with or without opinion.

The prosecution probably feels this is a gamble worth taking. It costs them nothing but taxpayer money -- just like everything the government does. It was the Colorado Supreme Court that issued the recent opinion of People v. Harris which some have read to preclude any discussion of other sex acts by an alleged rape victim when the defense is consent. Here is the headnote explaining in brief the Colorado Supreme Court opinion:

    Defendant was convicted following a jury trial in the trial court of first-degree sexual assault. Defendant appealed. The Court of Appeals reversed and remanded for a new trial. The State petitioned for a writ of certiorari. After granting certiorari review, the Supreme Court, Mullarkey, C.J., held that: (1) evidence that rape victim had engaged in consensual sexual intercourse four days prior to the rape was inadmissible under the rape shield statute; (2) evidence that rape victim had an abrasion on her vaginal wall did not "open the door" to allow admission of evidence that the victim engaged in consensual sexual intercourse four days prior to the rape; (3) the trial court's denial of defendant's request to cross-examine rape victim as to her prior sexual activities did not deny defendant his Sixth Amendment right to confront witnesses against him.

Here is how I read Harris. The trial judge, dealing with a late effort by the defense to pierce the rape shield, made the call to preclude evidence of other sexual conduct. The trial court is vested with sound discretion to make relevancy calls. The Court of Appeals had no business finding an abuse of that discretion. The Colorado Supreme Court was telling the ref on the field to stop worrying about appellate courts second guessing their judgment calls. As stated in headnote one of the Harris opinion:

    The Supreme Court reviews a trial court's factual determination as to the relevance of evidence for abuse of discretion; under this standard, the trial court's sound discretion will not be overturned on appeal unless the court's evidentiary ruling was manifestly arbitrary, unreasonable, or unfair.

Harris does pose problems for the defense. A lot of loose expansive language was used in that case which involved a clearly guilty and nasty habitual criminal who wanted to ask questions about consensual sex his accuser had with her boyfriend four days prior to the rape. This editorial commenting is known in the law as dicta. It is dicta which gives the Eagle County DA such hope in the high court. The American heritage dictionary defines dicta as "a judicial opinion expressed by judges on points that do not necessarily arise in the case, and are not involved in it." It is a form of pontification that is unnecessary to decide the case at hand. It is the kind of politically correct speech one generally sees from politicians.

Will the Colorado Supreme Court recognize all the ways this Kobe Bryant case is different that the case involving Mr. Harris? We may or may not soon find out.

Craig Silverman is a legal analyst for 7NEWS. He will be contributing his thoughts on the Kobe Bryant case in the months to come. He works for the downtown Denver law firm of Silverman and Olivas, P.C., which you can contact through their Web site or by calling (303) 595-0529. You can read Craig's bio here.

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