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Basketball: prosecutors are worried about transcripts

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posted on Aug, 3 2004 @ 07:23 PM
DENVER -- Kobe Bryant's prosecutors called newly released details addressing the accuser's sex life "one sided" on Tuesday, saying they shouldn't be used to judge the merits of the sexual assault case against the NBA star.

Some 200 pages from a closed hearing in June were released late Monday by District Judge Terry Ruckriegle under pressure from the state and U.S. Supreme Courts. The documents mistakenly e-mailed to ESPN, The Associated Press and five other news organizations in June were released after the media won a First Amendment fight that went to the U.S. Supreme Court.

The documents include testimony from a DNA expert for the defense, Elizabeth Johnson, who says she is convinced the accuser had sex with someone after Bryant and before she contacted authorities -- a claim the woman's attorney, John Clune, has vehemently denied. She cites DNA evidence found during hospital examinations.

The defense wants to use the expert's testimony to back its claim that the woman's injuries could have been caused during sex with someone other than the Los Angeles Lakers star.

Prosecutors have suggested the woman put on underwear that hadn't been washed before going to the hospital, transferring semen from a man identified only as "Mr. X" to her body, where it was found during a rape-kit examination.

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 happened afterward. The defense also plans to have a Colorado Bureau of Investigations expert, Yvonne Wood, testify on their behalf on the issue.

"It is one-sided information and we hope that people will keep that in mind. That's what the trial is for," prosecution spokeswoman Krista Flannigan said. There was no testimony in the documents from a prosecution expert on the issue.

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.
The judge has 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.

Legal analysts were divided on what impact the new information would have once it is introduced as evidence.
Larry Pozner, past president of the National Association of Criminal Defense Lawyers, said a jury may not believe the alleged victim's testimony if she had sex before contacting authorities.

"If the jury concludes she had sex after Kobe, and that she lied to the investigators, that is such a blow that I don't know that the case recovers. If this was all that the defense has, they have enough," he said.

Karen Steinhauser, a former prosecutor who has handled numerous rape cases, disagreed.
"It [the released information] only shows the defense expert," she said. "It doesn't show other explanations for this evidence, which creates unfairness.

Steinhauser said not all alleged rape victims react the same way; some don't want to be touched for months, others go into denial and pretend nothing happened. She said defense attacks on the character of the accuser could backfire, and make a jury sympathetic to her.

John Clune, who represents the alleged victim, did not return calls seeking comment.

In all, the judge redacted 68 lines out of hundreds in the transcripts he reluctantly released. Attorneys for the media groups said Tuesday they would not ask Supreme Court Justice Stephen Breyer to order the disclosure of the redacted information.

"We are gratified that Judge Ruckriegle has responded to the directives of Justice Breyer and the Colorado Supreme Court, and has lifted the prior restraint," said Steven Zansberg, one of the media attorneys.

Jane Kirtley, a professor of media ethics and law at the University of Minnesota, defended the media's role in forcing the release of the information. She said it may be distasteful, but it was important to preserve the right to publish information that authorities want withheld.

"The issue was not so much the content of these transcripts but unconstitutional prior restraint," said Kirtley, former executive director of the Reporters Committee for Freedom of the Press.

With the government restricting more information after the Sept. 11 attacks, this is not the time to allow further erosion of First Amendment rights, she said.

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.


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