Bryant Prosecutors Seek Delay Amid Signs of Trouble

Just weeks from a trial date, the Kobe Bryant sexual assault case has taken another unexpected turn, with the district attorney’s office making a series of moves that have experts increasingly convinced that the prosecution is faltering.

In a motion made public Wednesday, prosecutors asked the judge for an indefinite continuance, saying the inadvertent release of sealed testimony about the accuser’s sex life had tainted the jury pool.

Then, in a separate action, they appealed to the Colorado Supreme Court, arguing that details of the woman’s sexual activity should not be admitted as evidence.

These steps -- coming after the alleged victim filed a civil suit against Bryant -- raised doubts among legal analysts.

“They’re hoping for lightning to strike and something good to happen,” said Larry Pozner, a Denver attorney and former president of the National Assn. of Criminal Defense Lawyers. “They’re doing anything they can to stay out of that courtroom right now.”

With the appeal, prosecutors are seeking to reverse a major courtroom setback in which Judge Terry Ruckriegle decided to allow evidence of the woman’s sexual history with two key witnesses, plus her sexual conduct in the 72 hours before her medical exam.

If the state Supreme Court agrees to hear the appeal, most of which was filed under seal, the process could take weeks.

In the meantime, Ruckriegle was expected to give the defense an opportunity to respond to the prosecution’s motion for continuance. As of late Wednesday, there was no deadline for that response.

Prosecutors in Eagle County, Colo., did not return phone calls and Bryant’s attorneys declined to comment. The court has ordered everyone associated with the case not to speak publicly.

Bryant has pleaded not guilty to felony sexual assault, saying he had consensual sex with the woman, who was 19 at the time of the incident and has since turned 20.

If convicted, he faces four years to life in prison or 20 years to life on probation.

With jury selection scheduled to begin Aug. 27, analysts did not expect the trial to be postponed.

The high court is unlikely to hear the appeal, they said, and the motion for continuance conflicts with Bryant’s right to a speedy trial under Colorado law. Unless he waives that right, experts said, the trial must begin by mid-November.

“The defense will scream bloody murder,” said Craig Silverman, a Denver lawyer and former prosecutor who has followed the case. “Team Kobe will not agree to this.”

Even a short delay could pose significant logistical problems.

“The court has sent out subpoenas to dozens and dozens of witnesses who are planning on showing up,” said Karen Steinhauser, a Denver law professor. “These people have arranged their schedules and set aside time. I don’t see how the judge can grant the request.”

Prosecutors, who earlier had been eager to set a trial date, have another option. They can drop the charges and, even if the judge grants what is known as a dismissal with prejudice, they might be able to refile in the future. Double jeopardy does not apply until a jury is sworn in, Silverman said.

But legal analysts said a dismissal probably would signal that the accuser is less than determined to proceed, which would handicap any future case.

In a letter published on the Vail Daily website Wednesday, the woman’s father criticized Ruckriegle, writing: “My family and I have lost trust that we can obtain a fair trial in your court.”

Last week, her personal attorneys delivered a similar message on national television, saying that their client had a greater chance of pursuing justice in civil court because of mistakes made by criminal court personnel, including the release of her name.

Also, the standard of proof is lower in civil court, where a plaintiff must prove only that it is more likely than not that the defendant caused harm. In a criminal case, prosecutors must prove guilt beyond a reasonable doubt.

“The victim has a right to seek justice in any form they can,” said Cynthia Stone, a spokeswoman for the Colorado Coalition Against Sexual Assault.

There has been some speculation that all parties involved might be working behind the scenes toward a settlement that would encompass both matters.

Ultimately, the decision on whether to prosecute lies with the district attorney’s office, which could choose to proceed without the accuser’s cooperation. Steinhauser said: “I don’t get the sense that the prosecutors and her attorneys are talking about the best way to proceed. If they were, the civil case would not have been filed.”

That case, brought in Denver on Tuesday, requests a jury trial for unspecified compensatory and punitive damages. Legal analysts said it hurts the prosecution because it would allow the defense to tell jurors that Bryant’s accuser is seeking money.

The district attorney’s office delivered its motion to Ruckriegle the same day, though it wasn’t made public until Wednesday.

The three-page document cites the inadvertent release of graphic testimony by Elizabeth Johnson, a DNA expert who detailed why the defense believes that the woman had sex with someone else in the hours between the alleged assault and her rape examination.

“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,” prosecutor Dana Easter wrote.

In addition, prosecutors complained that the defense was slow to turn over scientific evidence and that the court had yet to rule on various motions regarding the accuser’s background.

Ruckriegle must decide whether to allow evidence of the woman’s multiple suicide attempts, mental health and drug and alcohol use.

“Lack of a timely ruling has prejudiced the People in their preparation for the trial,” the motion stated, adding, “Delayed rulings on these two issues have had a substantial impact on the victim’s ability to anticipate and prepare her testimony.”

Experts dismissed the prosecution’s complaint about the released transcript, saying that because of other rulings the jury would hear the evidence anyway.

On the issue of the delayed rulings, Steinhauser said that prosecutors have been aware of evidence relating to the accuser for some time and could have prepared.

Meanwhile, court business went on as usual Wednesday, with a media group requesting that the court unseal Bryant’s statements during an interview with police and Ruckriegle giving attorneys from both sides until next Wednesday to respond.

A pretrial hearing is scheduled for Monday and experts said the judge might take that opportunity to rule on the motion for a delay.

Either way, Steinhauser said, prosecutors “have to be reassessing their case ... looking at the evidence, figuring out if the alleged victim is still 100% on board.”