By Steve Henson
Times Staff Writer
March 2, 2004
EAGLE, Colo — Kobe Bryant's attorneys went on the offensive Monday, making controversial allegations about the sexual activity of the woman who has accused the Laker star of rape.
The defense claimed during a pretrial hearing and in a court filing that the woman has had sex with two prosecution witnesses and that she also had intercourse only hours after her encounter with Bryant.
Defense attorney Hal Haddon told Judge Terry Ruckriegle that swabs of semen taken from the neck,
thigh and vaginal area of the 19-year-old accuser during an examination 15 hours after the alleged rape were from a man other than Bryant.
Eagle County Dist. Atty. Mark Hurlbert objected to the comment, prompting an extended private conversation between the judge and attorneys. Haddon did not mention the woman's sexual conduct again, but in a court document filed over the weekend and made public Monday while court was in session, he offered several reasons why it is relevant and should be an exception to the rape-shield law.
Prosecutors say that the woman's sexual past is not relevant to whether she was raped and that it should not be allowed to be a topic at trial.
The woman says she was assaulted on the night of June 30 at the Edwards, Colo., resort where she worked. Bryant, 25, says they had consensual sex. He faces four years to life in prison or 20 years to life on probation, if convicted.
The woman had been scheduled to testify today, during her first appearance in court. Early Monday, Ruckriegle denied a motion by the prosecution to limit defense questioning of the woman. But after the lunch recess the judge rescinded that decision.
It was not entirely clear why the judge had a change of heart, but some observers suggested he might have taken exception to Haddon's written motion. Acting on a request from Hurlbert, Ruckriegle said he would take the motion under advisement and postponed the woman's testimony until at least March 24, the date of the next scheduled hearing.
Haddon's filing reiterated earlier descriptions of defense strategy and added details based on new evidence. He said testing of physical evidence from the rape kit by the Colorado Bureau of Investigation last week revealed the semen from an unidentified man.
In addition, Haddon said the defense had established:
• Evidence that the accuser engaged in multiple acts of sexual intercourse within the two days preceding her encounter with Bryant as well as within 15 hours afterward.
• There is "factual similarity" between the woman's sexual acts with other men and the circumstances of her intercourse with Bryant. The acts also show the "accuser's knowledge, intent, common plan, pattern and modus operandi with respect to whether she consented to having sex with Bryant," the defense said.
• There is evidence that the woman had sexual relationships with two prosecution witnesses. A source close to the prosecution said the men are the woman's ex-boyfriend, Matt Herr, and hotel bellman Bobby Pietrack. The woman called Herr on her cellphone while driving home from her encounter with Bryant. Pietrack followed her home in his car.
The sexual history between the woman and those witnesses is relevant to their credibility, Haddon said. Pietrack's testimony is especially important because he is the first person the woman spoke to after leaving Bryant's hotel room.
Haddon also said that evidence of sexual conduct soon after the alleged rape should be admissible to rebut a contention by prosecutors that the woman was diagnosed with post-traumatic stress disorder.
The defense contends that the woman schemed to have sex with Bryant to attract attention from an ex-boyfriend — probably Herr, whom she dated for two years. The woman overdosed on pills in February and May 2003 in purported suicide attempts, which Bryant's attorneys characterize as attention-getting acts.
Some observers were appalled that the defense made such strong allegations in court and in writing.
"I'm seeing once again the defense throwing out information we don't know is true just to discredit the victim in the court of public opinion," said Cindy Stone, spokeswoman for the Colorado Coalition Against Sexual Assault.
Haddon's mention of another man's semen came during the first hearing of the day. Hurlbert argued unsuccessfully that prosecutors were not required to provide the defense with two pairs of underwear worn by the woman the night of the alleged sexual assault and during the rape examination.
After testimony from defense expert Dr. Elizabeth Johnson, Ruckriegle ordered Hulbert to turn over the underwear within 24 hours and for the defense to return it by April 30.
Ruckriegle also chastised Hurlbert when the prosecutor said he had not handed over the underwear because an earlier order by the judge was unclear. It did not appear that Hurlbert scored points with the judge at any juncture of the open portion of the proceeding.
One bright spot for prosecutors came when Bryant bodyguard Troy Laster testified during part of a hearing on whether statements Bryant made to investigators July 1 should be suppressed because he was not read his Miranda rights.
Laster, an off-duty LAPD officer, did not have a clear recollection of many details, and his testimony did not appear to help Bryant's assertion that he believed he was in custody at the time of the interrogation.
A portion of the suppression hearing was conducted after lunch in closed session and it should be completed today.
A hearing on whether the defense should gain access to the woman's medical records was concluded in closed court. Testimony was taken from an Eagle County detective and Johnray Strickland, another ex-boyfriend of the alleged victim, and Ruckriegle will issue a written decision.
Ruckriegle also will make a decision on whether upcoming hearings on the admissibility of the woman's medical and mental health records and of her alleged drug and alcohol use will be conducted in closed court.
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