The trial judge in the Kobe Bryant case denied the prosecution's request for a trial delay today. Jury selection is set to begin August 27. He also denied a defense request to admit evidence of the accuser's alleged suicide attempts and alcohol, drug and medication usage--or her mental health issues.

The timing is curious. The prosecution requests a trial delay based in part on the fact that the Judge hadn't ruled on the defense request to admit the mental health and medication evidence, saying it needed more time to prepare for trial if this evidence was going to come in. The Judge was able to refute the prosecution's need for a delay by ruling the evidence couldn't come in.

The prosecution's request was a bogus one. It didn't need more time to prepare its case if this evidence came in. It would have come in through defense witnesses after the prosecution rested. The prosecution is well aware of the defense witnesses on the topic and should have been prepared to cross-examine them at trial. Or to have its own experts ready in rebuttal.

Also, the prosecution made a lame argument that releasing the one-sided transripts of the accuser's alleged post-Kobe but pre-rape exam sexual activity prejudiced its case. What the district attorney avoids mentioning is that at that hearing, it had the opportunity to cross-examine the defense expert on the issue--and chose not to--despite having two of its own experts present in the courtroom (pdf). So the reason the transcript was one-sided is because that is the strategic choice made by the prosecution.

Update: The accuser's lawyer sought advice on filing a civil suit over a year ago--from former NY sex crimes prosecutor Linda Fairstein:

But a civil action has also apparently been contemplated for much longer than only a few days. One of the woman's lawyers, John C. Clune, who filed the civil suit, called a prominent former sex crimes prosecutor, Linda Fairstein, more than a year ago to solicit her advice about a possible civil case, Ms. Fairstein said in an interview today.

Ms. Fairstein, who led the sex crimes unit of the Manhattan District Attorney's office for 26 years, said that Mr. Clune had not asked that their conversation be kept confidential. But she said that she had not publicly discussed her two conversations with Mr. Clune in July 2003 until a reporter contacted her this afternoon seeking her views on the lawsuit. Mr. Clune did not return telephone calls seeking comment.

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Kobe Bryant's accuser had made good on her intentions and filed a civil suit for compensatory and punitive damages against him in federal court. In the lawsuit, she describes the encounter with Kobe as a rape, similarly to the way the prosecution in the criminal case does.

What does the filing of the civil suit mean? For one, it's more fodder for Kobe's lawyers on cross-examination of the accuser--now there is no question she is after big bucks. It may make the criminal case less likely to go forward. It gives the prosecution an out--they may say her reluctance to continue to participate in the criminal case combined with her filing a suit for money reduces the chances of a conviction. Well, the chances were only borderline before, so who can blame them if they bail?

Kobe Bryant's accuser wants the gag order lifted on her lawyers. The lawyers argue the gag order prevents them from criticizing the court for mistakenly releasing her name and a transcript in which a defense expert testified she believed the accuser had sex in the 13 hour period between her encounter with Kobe and her rape exam.

The lawyers really want to tell her story--not just criticize the court. With the trial being so close, the gag order is appropriate. The accuser is the complaining witness. Her story should be told in the courtroom, not on television. If Kobe's lawyers can abide by the gag order, and they have, scrupulously so, the accuser should be held to the same standard. The Prosecution speaks for the accuser in their pleadings. How many mouthpieces does she need?

By statute, the accuser has the right to be treated with fairness. But Kobe's constitutional right to a fair trial is paramount. Her lawyers' motion is replete with references to Kobe as the "rapist" and the accuser as the "victim." She's an alleged victim. He's a defendant, not a rapist, and he's presumed innocent. Her lawyers are grandstanding to prejudice the jury pool. Their request should be denied.

In other Kobe news today, the Judge has rejected a request by the accuser's lawyers that the Court cease posting documents online at the court's web site. Another correct ruling.

Lawyers for Kobe Bryant's accusers Wednesday said she is re-evaluating whether she wants to continue to participate in the criminal proceeding against him. They said she may rather bring a civil suit against him.

One of the accuser's attorneys, Atlanta civil attorney Lin Wood said, "I'm of the mind that she's only going to be treated fairly in a civil case, where the playing field is level and Mr. Bryant's life will be scrutinized." Wood joined the case several weeks ago. According to legal experts, his hiring by the accuser's family indicates more emphasis is being spent on the civil portion of the case.

Legal analysts aren't surprised. The case against Kobe has been going downhill for some time. With the release of a pre-trial hearing transcript containing testimony by a defense expert that she believes the accuser had sex after the encounter with Kobe and before she arrived at the hospitial for her rape exam, a conviction will be hard to obtain.

But the same credibility problems that have plagued the accuser in the criminal case will follow her into the civil case. Unless a settlement is agreed upon, I don't see a civil case coming out in her favor. This sounds like a last-ditch attempt at a graceful exit strategy.

The Judge in the Kobe Bryant case released all but 68 lines of the 200 pages of sealed hearing transcripts from the rape-shield hearing. The transcripts address the accuser's sexual history and were mistakenly mailed to media outlets.

The Judge later ruled that evidence of her sexual activity within 72 hours of the time she arrived at the hospital for her rape exam, is relevant and admissible.

Ruckriegle late last month said the defense can present evidence about the woman's sexual activities in the three days before a July 1, 2003, hospital exam, saying it is relevant to help determine the cause of her injuries, the source of DNA evidence and her credibility.

Thus, by order of the Colorado Supreme Court, he had to make available the transcripts, striking only parts that pertained to information he ruled inadmissible. Here's one exchange that took place:

"If in fact you were to rule that all of the rape-shield evidence were going to come in in this case, I'm thinking the prosecution is going to sit down and re-evaluate the quality of its case and its chances of a successful prosecution," Prosecutor Ingrid Bakke told the judge.

Another section of the transcript contains:

....detailed comments from a defense expert who says she believes Bryant's accuser had sex with someone else after her encounter with the NBA star and before she went to police, a claim that has been vehemently denied by the woman's attorney.....Johnson, however, said the woman told police she showered the morning of June 30 and put on clean purple underwear. But she said her laboratory and the Colorado Bureau of Investigation both found genetic material matching Bryant and a man identified as "Mr. X" on that garment.

In a 4-3 split decision, the Colorado Supreme Court today upheld a trial court's order in the Kobe Bryant Case prohibiting the media from publishing or disclosing the contents of transcripts of a sealed hearing disseminated to the media through a mistake by the court reporter--even though it is a prior restraint of press.

"This prior restraint is necessary to protect against an evil that is great and certain and would result from reportage," the court ruled.

Justice Michael Bender (formerly an esteemed Colorado criminal defense lawyer) wrote the dissenting opinion:

Justice Michael Bender .... said it was unfair to hold the media responsible if a court failed to do its job to protect confidential information. "The power the majority authorizes is the power of the government to censor the media, which is precisely the power the First Amendment forbids," Bender wrote.

The text of the decision is available here.

The Judge in the Kobe Bryant case has ruled on the defense motion to suppress his statements and the clothing he turned over to the detectives in his hotel room. Motion denied. Why? In a nutshell, and we just finished reading the very long ruling which is not yet available online because of a court website malfunction, here's why. The Judge found:

1. Kobe was not in custody and a reasonable person in his situation would have felt free to leave.

2. He consented to talking to the police officers and allowing them to accompany him to his room and he voluntarily turned over the clothing they were seeking.

3. There was no need to rule on whether the search warrant was valid or not because the cops said they never executed it. The prosecution relied solely on consent, and the Judge sided with them.

4. As to credibility issues, there were some differences between what Kobe's bodyguards said happened and what the detectives said happened with respect to how the questioning came about, and the Judge sided with the detectives.

This is the smartest move the accuser in the Kobe Bryant case has made to date: She's added Atlanta libel guru Lin Wood to her legal team. Lin Wood is the lawyer for John and Patsy Ramsey and Richard Jewell, among others. He will be a forceful advocate for her privacy rights. In addition to trying to keep the media from publishing the mistakenly released sealed transcripts of the rape-shield hearing, he'll likely begin scrutinizing all media comments for potential libel lawsuits.

As a legal analyst, the hiring won't silence us or change our commentary, we'll just be on high alert (as opposed to our current state of "cautious") as to how we phrase it from now on. As we told the Los Angeles Times the other day:

....Merritt said that too often the public thinks defense lawyers are attacking an accuser's character when instead the issue is their credibility. In rape cases that hinge on consent, she said, witnesses' credibility is crucial...."The defense attorney has an obligation to bring out any facts to the jury that support his or her client's defense," she said. "The defense lawyer is not needlessly attacking the victim of a rape. They're going after that person because her story doesn't ring true."

Ampersand politely disagrees with us. We understand her position. But credibility is fair game.

Big news in the Kobe Bryant case. Mark Hurlburt, the elected DA who made the decision to charge Kobe, has announced he won't be trying the case, but leaving it to the deputy
DA's. He's decided his county needs him to do administrative work.

While its not unusual for elected DA's to spend more time on administrative matters than trying cases, they often try the high profile ones. Here, the citizens of the 5th Judicial District are paying Hurlburt to be the prosecutor--yet Hurlburt has decided to spend the district's money importing two prosecutors from Boulder and Jefferson County. If Hurlburt were really concerned about conserving the district's resources, he'd send the two prosecutors back and try the case himself.

On the other hand, we commend Hurlburt for recognizing there are other cases and people in his district in need of prosecution services and that far too many of the district's resources, both in time and money, have been spent on Kobe's case. How many prosecutors does it take to try a rape case?

The Denver Post has more here.

It's official...Jury selection in Kobe Bryant's trial on a sexual assault charge begins August 27. The Judge expects jury selection to last four to five days. The trial likely will last between two and four weeks.

In other case news, the court reporter made a big mistake and sent transcripts of sealed hearings to 7 media outlets. The Judge ordered the media to destroy the transcripts and not distribute them.

The trial should be over by the beginning of basketball season. Reporters have been asking us if we think there is any chance of a plea bargain. In our view, the only deal that would be acceptable would be a misdemeanor plea to a non-sex offense. The only way we can see that being put on the table is if the Judge were to rule Kobe's statements inadmissible --and the accuser's contemporaneous sexual activity and medical history admissible.

The setting of a trial date suggests to us that several key rulings, including on the three issues just mentioned, will be released shortly. More hearings are set for July 19 - 21.

Two days of hearings wrapped up Tuesday in the Kobe Bryant case. No trial date has been set, although late August is a possibility. The significant motions over suppression of evidence and admission of other sexual activity of the accuser are still under advisement by the Judge. Here's some news: The clerk will send out 1,000 jury summonses for the trial. In an ordinary trial in Eagle county, a max of 250 might be sent out.

The Judge in the Kobe Bryant case today issued an order (pdf.) directing the prosecution to show cause why they haven't complied with his latest order regarding DNA testing--and to establish why sanctions shouldn't be imposed .

Because the DNA testing is so critical, Bryant defense attorneys Pamela Mackey and Hal Haddon have requested that their DNA expert, Dr. Elizabeth Johnson, be present at DNA testing done by the prosecution. Ruckriegle granted that request in early May and said that a defense expert should be allowed to view the prosecution testing. Prosecutors assured the defense that their expert could be present.

But earlier this week, Mackey and Haddon said they were notified by letter that the prosecution had chosen, in direct violation of Ruckriegle's order, a lab that won't permit their expert to witness the prosecution DNA testing. On Wednesday, they informed Ruckriegle of the violation and asked that he find out why the violation was occurring. And today, Ruckriegle gave prosecutors until Tuesday to tell him why they failed to select a laboratory which would permit the defense expert to be present. He also asked them to show why he shouldn't impose sanctions.

We note that Kobe's lawyers didn't ask for sanctions, the Judge acted on his own initiative in asking why they shouldn't be imposed.