Thursday, the judge chastised prosecutors for waiting until the last minute to challenge DNA evidence the defense says shows Bryant's accuser had sex with someone else hours after her encounter with the NBA star.
In an often testy exchange, Judge Terry Ruckriegle told prosecutors he should deny their request for a hearing because it was likely to delay the trial. But he gave them until Tuesday to provide more information to help him make his decision on what could turn out to be a key point in the outcome of the trial.
Attorneys are expected to begin closed-door questioning of individual jury candidates Monday, but attorneys for news organizations including The Associated Press have asked the judge to open much of those sessions. The judge agreed to hear arguments Monday on that issue.
Thursday, the judge held a closed-door session with prosecutors and defense attorneys to discuss the 82-item questionnaire that prospective jurors will fill out. About 500 prospective jurors are expected to arrive at the Eagle County courthouse Friday; opening statements are not expected before Sept. 7.
"Jury selection in this case is going to be difficult but not impossible for the lawyers and the judge," says. "No one is going to expect a potential juror to say that he or she has never heard of Kobe Bryant or this rape case. The hope is to find jurors who know about the case but who are willing to hear and see the evidence with an open mind and from a blank slate."
The case continues to fire up public opinion and will doubtless fuel much speculation over the potential significance of the gender, race, and income of the jurors, but such talk, says Cohen, isn't likely to reliably predict what will happen in court.
"This trial isn't going to be won," says Cohen, "by giving an obscene amount of money to a bunch of jury consultants so that they can try to identify generalities about jurors. It is going to be won, or lost, based upon how a series of facts and legal theories comports with the sensibilities of the Bryant jury."
"The prosecution's case against the Los Angeles Lakers star is either going to make sense to jurors or it won't," Cohen continued. "If it does, Bryant could very well be convicted. If it doesn't, he walks. Either the alleged victim's story is credible or it is not. If it is, Bryant's in trouble. If it isn't, Bryant walks."
Bryant, 26, has pleaded not guilty to felony sexual assault, saying he had consensual sex with the then-19-year-old employee of a Vail-area resort where he stayed last summer. If convicted, the Los Angeles Lakers star faces four years to life in prison or 20 years to life on probation.
Thursday, prosecutor Dana Easter told Ruckriegle that DNA test results from laboratories hired by Bryant's attorneys indicate there was contamination in control samples intended to ensure accurate testing.
She said that threw into question the reliability of conclusions made by a defense DNA expert, Elizabeth Johnson, who has testified she believes the accuser had sex with someone else soon after her encounter with Bryant. The woman's attorneys have denied that claim.
Easter said she could not have questioned the results earlier because the defense dragged its feet in providing information needed to evaluate DNA test results.
"We have acted as well as we can," she said. "The prosecution has not had $12 million to pay for experts."
Ruckriegle asked Easter whether prosecution experts had concerns with the statements and conclusions of the defense's DNA experts. When she said her experts did have concerns, Ruckriegle asked her to identify them.
"I cannot at this time reveal who we are consulting with," she said.
"Then I can't evaluate it," Ruckriegle responded.
Defense attorney Hal Haddon criticized prosecutors, saying their actions were intended primarily to inflame public opinion on the eve of trial.
"These motions are humbugs designed to distract us from trial preparation, designed to generate cheap headlines and most of all designed to confuse the jury," he said.
The dispute over the DNA evidence, says Cohen, could be a critical issue in the outcome of the trial.
"Either there is good evidence that the alleged victim had sex with another man after she was with Bryant but before her rape exam or there isn't," says Cohen. "If there is, Bryant probably walks. If there isn't, he's in trouble."