Bryant prosecution loses round on sexual history

Three days of woman's sexual activity allowed

Monday, August 16, 2004 Posted: 1:42 PM EDT (1742 GMT)


EAGLE, Colorado (CNN) -- The prosecution in the Kobe Bryant sexual assault case lost another legal round Monday when the Colorado Supreme Court refused to consider an appeal involving the accuser's sexual history.

The trial court judge ruled last month that Bryant's attorneys can present evidence of the woman's sexual activities around the time of the alleged assault.

District Judge Terry Ruckriegle's decision covers the three days before the accuser's July 1, 2003, hospital exam, a time which he said is relevant to help determine the cause of her injuries, the source of DNA evidence and her credibility.

Bryant, 25, pleaded not guilty May 11 to felony sexual assault, saying he had consensual sex with the woman.

The judge has apologized to the woman after transcripts from a closed-door hearing dealing with her sex life were accidentally e-mailed to reporters.

But in addition to her humiliation, the release could hurt the prosecution's case.

The material released included a defense expert explaining her examination of DNA evidence, indicating the accuser had sex with another man after Bryant but before her hospital exam.

"In a 'he said/she said' case, credibility is everything. Dr. Johnson's testimony undermines the credibility of the alleged victim," former Denver district attorney Craig Silverman said.

Prosecutors are asking the judge to be allowed to present their own expert who would testify that DNA can remain on cotton cloth for months -- even after washing it repeatedly. That would explain the presence of a second man's DNA on her clothes.

Jury selection in Bryant's criminal case is set to begin August 27.

If convicted, the Los Angeles Lakers star could be sentenced to four years to life in prison or 20 years to life on probation, and fined up to $750,000.

On Friday, Ruckriegle rejected a prosecution request for a delay in the trial, saying there was no reason to do so. (Full story)

"In summary, this court cannot conclude that the juror pool in Eagle County has been improperly or unduly influenced," the judge ruled.

The prosecution is obligated to proceed to trial within six months of Bryant's not-guilty plea or the government must set him free.

Ruckriegle did rule in favor of the prosecution on one key aspect last week. The accuser's mental health and medical history will not be allowed in the trial.

But the woman is considering withdrawing from the case, her attorney has said.

She filed a lawsuit last week in federal court in Denver against the basketball star, seeking unspecified monetary damages.

The suit, named Jane Doe v. Kobe Bryant, alleges Bryant raped the woman, then 19, in his hotel room.

In their filings to oppose a delay in the criminal case, his attorneys said that particularly damaging to the prosecution's case is "the accuser's filing of a civil suit, thereby exposing her motivation to pursue her false accusation -- the hope of a large monetary reward."

Silverman has said the prosecution's attempt to seek a trial delay may be part of a plan to drop the case.

"Even though there are some good bases for this motion to continue, it seems like part of a well-orchestrated strategy for this criminal case to go away," he said. "In all likelihood, the judge will deny the motion to continue and then the prosecution may throw up its hands and say, 'We're not going to proceed. We dismiss the case.' "