- The Washington Times - Thursday, August 12, 2004

DENVER — Prosecutors have asked the judge in Kobe Bryant’s sexual assault case to put the trial on hold indefinitely, saying courthouse gaffes have crippled the chances of seating an unbiased jury and suggesting the accuser is not ready to testify against the NBA star.

After the request was made public yesterday, prosecutors appealed a key ruling in the case to the Colorado Supreme Court. The appeal, if accepted, could lead to a weeks-long delay even if the trial judge denies the request for an indefinite postponement.

Most of the appeal — arguing that the accuser’s sexual activities should not be admitted as evidence — was filed under seal. Prosecution spokeswoman Krista Flannigan said some details would be released later.

Legal experts say the request for a delay could be the first step toward dropping the case altogether now that the accuser has sued Bryant in civil court for monetary damages. They said the civil case will hurt prosecutors because the defense can argue that the 20-year-old woman is simply after Bryant’s money.

“If prosecutors are looking for a face-saving way out, this is it,” legal analyst Andrew Cohen said.

Jury selection in the criminal case is scheduled to begin Aug.27, little more than two weeks away. It was not known when the judge might rule on the request.

In a court filing made public, prosecutor Dana Easter said the recent release of closed-door testimony hurt the chances of getting a fair jury. She also said the judge has not yet decided whether the woman’s mental health and medical history will be admitted as evidence, leaving prosecutors in limbo on whether to hire more expert witnesses. Easter also accused defense experts of waiting too long to turn over DNA test results.

Easter singled out transcripts from a June hearing that were mistakenly e-mailed to seven news organizations, including the Associated Press. The media outlets won a court fight with the judge to publish the details, including a defense expert’s explanation on why she believes the accuser had sex with someone after her encounter with Bryant and before she was examined at a hospital — a claim the woman’s attorney has denied.

The widely publicized charge was “extremely harmful” to the prosecution’s case, Easter said, and District Judge Terry Ruckriegle’s strict gag order has prevented prosecutors from responding.

“The release of this information 28 days prior to trial will have the effect of tainting the jury pool and impact the ability of the prosecution to obtain a fair jury at this time,” Easter wrote.

Prosecutors filed their request for a delay Tuesday, the same day attorneys for the accuser filed the civil lawsuit against Bryant in federal court in Denver seeking compensatory damages of at least $75,000 and unspecified punitive damages.

Attorneys for the accuser and Bryant did not return messages. Flannigan declined to elaborate on the filing, but said a trial was still planned.

“We are still moving forward; nothing has changed,” she said.

Bryant has pleaded not guilty to felony sexual assault. He has said he had consensual sex with the woman, then 19, at the Vail-area resort where she worked last summer. The Los Angeles Lakers star faces four years to life in prison or 20 years to life on probation if convicted.

Experts said it was unlikely Ruckriegle will agree to a delay at such late notice. Nearly 1,000 Eagle County residents have been mailed jury summonses, witnesses from around the country have been scheduled to testify, and the judge and attorneys on both sides have cleared their calendars for September, said Craig Silverman, a former prosecutor following the case.

“It is an incredible logistical task to reschedule all of this,” he said. “What will happen is once the continuance is denied, I would not be surprised if the prosecution throws up its hands and says ‘Well, then, we cannot proceed.’.”

Norm Early, a former Denver district attorney, suggested prosecutors would like more time for publicity on the closed-door hearing details to fade.

“It will be like so many other things in this case where people remember having heard something, are not sure what it was and are left with an impression,” Early said. “That is a situation with which the prosecution I think can live. However, having that information as immediate and as fresh as it is is quite another story.”

The accuser’s attorneys last week questioned whether she could get a fair hearing because of court mistakes, and said her best chance to air her side of the story could be in civil court. The woman’s name was mistakenly included in filings posted on a state court Web site even before the court reporter’s accidental e-mail to the media.

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