Center Court: The Kobe Hearing
Prosecutors accused Kobe Bryant's attorneys of deliberately smearing the reputation of his accuser Tuesday as they asked a judge to make sure any evidence about her sexual history is heard behind closed doors.
In a sharply worded court filing, prosecutors said defense attorney Pamela Mackey stepped over the line last week when she asked a detective at the preliminary hearing whether injuries to the 19-year-old accuser were "consistent with a person who had sex with three different men in three days."
That question prompted Eagle County Judge Frederick Gannett to end the hearing, which resumes Wednesday and will determine whether the NBA superstar will stand trial on a sexual assault charge.
"The issue now is no longer whether the judge will find probable cause to hold Bryant over for trial. He almost certainly will," says CBS News Legal Analyst Andrew Cohen. "The priority instead for both sides is to affect public perceptions going forward. The defense wants to cast doubt on the alleged victim's story. Prosecutors want potential jurors thinking that Bryant was and is capable of rape."
Tuesday, prosecutors revealed that they had received medical records mistakenly released by a hospital where the alleged victim was examined after the encounter, and passed those records on to Bryant's lawyers as part of the normal exchange of evidence.
Prosecutors had subpoenaed the examination records from Valley View Hospital in Glenwood Springs. They received those records and records from an earlier visit by the woman, prosecution spokeswoman Krista Flannigan said.
She declined to comment on the date or the nature of the earlier visit. "They were records they should not have given us," Flannigan said.
The mistake was first reported by KCNC-TV in Denver.
Hospital administrator Gary Brewer did not return calls from The Associated Press.
Flannigan said prosecutors complied with the hospital's request to return the mistakenly released records and to destroy any copies. She didn't know if defense attorneys complied but said ethical standards would require them to.
Mackey's voice mail said she would not return reporters' calls. The judge has issued a gag order prohibiting those involved in the case from commenting on it.
Prosecutors said Mackey's question Thursday about the alleged victim's sexual history was a "deliberate and calculated" attempt to elicit testimony on evidence that is irrelevant this early in the case.
"What was even more unexpected was her conscious misrepresentation of the evidence in order to smear the victim publicly," prosecutor Ingrid Bakke wrote. "The bell cannot be unrung. It will be difficult enough to overcome Ms. Mackey's misstatement of the facts."
Mackey's voice mail said she would not return calls from reporters.
Prosecutors want Gannett to hold discussions about the accuser's sexual history in private, if he determines the evidence is relevant.
Bakke said prosecutors believe that sort of evidence is protected by Colorado's rape shield law, which bars the use of an alleged victim's sexual history in rape cases with few exceptions.
Attorney Tom Kelley, who represents several media organizations including The Associated Press, said he will fight the prosecution's request for a closed hearing.
"It's not as though a lot of sensitive material has not been presented to the public already, it just happens to be unfavorable to Kobe Bryant," Kelley said. "I don't think the process ought to be about presenting unfavorable information about only one side."
Kelley said he will meet with Gannett and attorneys from both sides shortly before the preliminary hearing resumes. Bryant's attorneys have already asked the judge to close all or part of the remainder of the hearing.
The hearing began last week with sheriff's Detective Doug Winters describing the alleged assault in graphic detail. He said the small-town teenager was flattered by attention from Bryant and agreed to his request to come to his room late one night.
After chatting for a while, they began kissing consensually before the incident spun out of her control, Winters testified. He said the woman told Bryant no at least twice before he began raping her against a chair.
It was Mackey's cross-examination of Winters that prompted the judge to end the hearing.
Legal experts said Gannett might give Mackey a chance behind closed doors to provide information to back up her suggestion the accuser had other sexual partners before her June 30 encounter with Bryant.
Mackey and defense attorney Hal Haddon also might want to call their own witnesses, which is unusual in preliminary hearings.
"The reason we have a preliminary hearing after all is to give the defense a chance to say, `This case should not even go to trial, it's so weak,"' said Christopher Mueller, a professor at the University of Colorado law school.
Gannett had earlier thrown out subpoenas issued by Bryant's attorneys for the woman's medical records, saying if the case goes to trial, the trial judge should determine whether those records should be turned over.
Friends of the woman have said she tried to commit suicide in February and again in May.
Bryant, who is free on $25,000 bond, must return to Eagle for the hearing.
Bryant did not play when the Lakers went up against Phoenix Tuesday, although he did work out with the team, riding a stationary bicycle.
Coach Phil Jackson decided there was no point in having Bryant board the team bus and ride to San Diego for the exhibition game against the
"Didn't want him here. If he's not going to play in the ballgame, ultimately it's very difficult for the fans," said Jackson. "These people really want to see Kobe play and I know he'd be a distraction."
Bryant, 25, faces up to life in prison if convicted of the single count of felony sexual assault against him. He has said he and the woman had consensual sex while he stayed at the mountain resort in Edwards where she worked.
Gannett has said he will not rule at the close of the hearing on whether the case should be sent to a higher court for trial. He plans to issue a written decision later.