The prosecution in the Kobe Bryant case has filed a motion accusing the defense of leaking details of the semen found on the accuser's underwear that did not match Kobe Bryant. The origninal news article publishing the details is here.

The source of the information, a retired Colorado Judge, has stated that the reporter mis-stated his comments and that he (the Judge) has not spoken with defense attorney Hal Haddon in ten years. The prosecution alleges the Judge is lying, but does not set forth facts to support the allegation--other than that the reporter says he got the quote right. Also, there is no time frame for the alleged statement from Haddon to Retired Judge Jones. What basis does the prosecution have for alleging the comment, if made, was made after the July 24 Order limiting extra-judicial comments? And what evidence does it have that if the statement was made by a member of the defense team or someone associated with it, that the statement was not made in confidence rather than intended for dissemination?

In other Kobe news, now that the Kobe Bryant case has been transferred from county court to district court, a new judge will be taking over. There are 22 districts in Colorado. Each district is made up of one or more counties. In districts with multiple counties, the counties are within close geographic proximity to each other. The Fifth judicial district includes Eagle, Clear Creek, Lake and Summit Counties. Each district has a chief judge. In the 5th District, the chief Judge is Terry Ruckriegle of Summit County (Breckenridge and Georgeown).

In the ordinary case, a district court judge from Eagle would preside over Kobe Bryant's trial. That would be Judge Richard Hart or Thomas Moorhead.

It was announced today that Fifth District chief Judge Terry Ruckriegle will preside over the Kobe trial. The Eagle county district court judges are being bypassed.

Does Ruckriegle intend to grant a change of venue to Breckenridge? In a locally high profile murder trial last year, Ruckriegle moved the trial from Breckenridge to Eagle and presided over the trial there.

Not surprisingly, the Judge issued its ruling today finding probable cause to make Kobe Bryant stand trial. Here is the ruling.

The Judge defines the probable cause standard as evidence, that when viewed in a light most favorable to the prosecution, would induce a reasonable belief that the defendant committed the charged crime.

Update: Our view:

Jeralyn Merritt, a Denver defense lawyer and legal commentator, said this "was one of the weakest findings of probable cause I've seen."

"This order sends a clear message to prosecutors - that they better have something substantially more significant than what they presented at the preliminary hearing or the case is going nowhere."

Rita Cosby on Fox News is reporting new information about the accuser's yellow panties that she wore to her rape exam the day following the encounter with Kobe. "Sources close to the prosecution" now tell Rita that these were dirty panties lying around the accuser's room that she just happened to put on. Panties that were dirty from a sexual encounter that had happened weeks earlier. Isn't this in violation of the gag order?

This is laughable. We repeat, the prosecution wants to say the accuser wore dirty underwear she had laying around her room for weeks following another sexual encounter to her rape exam. Talk about damage to the accuser's reputation....who wants to be known for having such poor personal hygeine that you leave dirty underwear around your room for weeks - and then re-wear it?

But more troubling is Rita's repeated references to "sources close to the prosecution." All law enforcement, prosecutors and court personnel are effectively gagged by the court's July 24 Order. The Order also directs prosecutors to maintain a tight lid on their investigators and employees. Time for another investigation.

Some people just can't count. Today's big Kobe Bryant news claims the accuser in the case wasn't harmed by allegations that she had had sex with boyfriend a few days before her encounter with Kobe. The articles quotes a former prosecutor (and oddly, only a former prosecutor, who is also a victim's rights advocate, not quite fair and balanced) who says the evidence shows only that the accuser had sex with her boyfriend and with Kobe.

Here's the evidence that was presented at the hearing, all from the prosecution witness and his reports:

• The accuser told the officer she had consensual sex a June 27 or June 28, two to three days before her encounter with Kobe on June 30. Her partner was wearing a condom.

• June 30: Sex with Kobe. The officer says the accuser provided him with the underwear she wore durign the encounter when he went to her home to interview her on the afternoon of July 1.

• July 1: Later on July 1, the accuser goes to Valley View Hospital for her rape exam wearing yellow knit underwear that is not the same underwear she wore during the encounter with Kobe, which she had already provided to the police. The yellow underwear contains blood and semen. The semen is tested for DNA and it is not Kobe's semen. A caucasian pubic hair is also found in her underwear.

If the partner in encounter number 1 was wearing a condom, the logical inference is there would be no semen in her underwear afterwards--particularly three days afterwards. Thus, three men in three days.

The number of men is not important except to show repetitive sex within a short period of time. The defense is arguing there was no sexual assault by anyone. The injuries were not the result of the application of physical force by Kobe or anyone else. They will likely present expert testimony at trial to show that repetitive consensual sex within a three day period can cause bruising and slight bleeding and the kind of pin-point lacerations on the posterior fourchette as experienced by the accuser.

For the first time in ages, we missed an entire day of blogging. Between court for clients in the morning, and coveriing the Kobe Bryant hearing in the afternoon and evening, we just didn't get to a computer. We're amazed that our site stats show that 7,500 unique visitors stopped by anyway. Thanks to all of you readers, that feels really good.

As to Kobe Bryant, here's the top five news items from today's hearing:

1. The detective testified that the accuser went to her rape exam the day after the event wearing panties that contained blood and semen from someone other than Kobe Bryant. These panties were yellow, and not the same as the ones she was wearing during the encounter with Kobe, which she also turned over to police. Also, there was a caucasian hair found in her pubic area at the time of her rape exam, about 18 hours after her encounter with Kobe.

2. The detective testified that the accuser said she had consensual sex with another partner two or three days before the incident with Kobe, during which her partner wore a condom.

3. The detective testified the accuser did not tell him in the first interview that she said "no" to Kobe during their five minutes of intercourse. It wasn't until a later interview that she added that she said "no." In the first interview, she told the detective that Kobe stopped when she resisted.

4. The night auditor of the hotel saw the accuser right after the incident and says she did not appear distraught and it did not seem like anything was amiss.

5. Kobe Bryant was examined from head to toe and had no marks on him.

The Judge refused the People's request to close today's hearing and allowed Pamela Mackey to resume questioning where she left off last week - with evidence of the woman's sexual activity that occurred near the time of her encounter with Kobe.

All in all, the Judge will bind the case over because the burden of proof is so low at a preliminary hearing, but a conviction seems less and less likely. All of the evidence today came from prosecution reports turned over to the defense. We haven't even seen an iota of what the defense investigation has revealed, and we bet its considerable.

The Judge is expected to rule on the issue of probable cause by Monday. Relevant news articles can be found here and here.

We'll be back tomorrow with non-Kobe related coverage.

Update: The prosecution has just filed a request to close the portions of the preliminary hearing addressing the accuser's sexual conduct. The response alleges that Pamela Mackey consciously misrepresented the evidence "in order to smear the victim publicly." [Shouldn't they have waited until they hear from her witness(es) before making that allegation?]

Yet, the People implicitly acknowledge that the advance notice requirement of the rape shield law doesn't apply at preliminary hearings. They say an in camera hearing is in line with "the intent" of the Rape Shield statute--not the language of the act. Big difference. Also, they attach a sealed "offer of proof" to the motion that they say supports their position that the accuser's sexual conduct "arguably" is protected by the Rape Shield act and ask for an in camera (closed) hearing on the issue.

Update: CBS analyst Andrew Cohen provides a good analysis of the issues here. AP article on the proseuction's motion is here.

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Original post:

The defense may call witnesses at tomorrow's continuation of the Kobe Bryant preliminary hearing. Colorado rules specifically allow for the defense to present evidence at such hearings.

As if the bombshell unleashed by the defense at yesterday's preliminary hearing in the Kobe Bryant case wasn't enough to shock the media, there's more. We're not going to reprint the new details here, so go read the article. Then read the rest of what we have to say.

The hearing has been continued to this coming Wednesday. The prosecution, which last week opposed a defense motion to close the courtroom, has now filed its own motion seeking closure of portions of the upcoming hearing.

Tom Kelley, an attorney representing the media including The Denver Post, said that it was an "interesting flip-flop" and that the judge was being asked, in essence, to let the prosecution present its case publicly and then require the defense to issue a rebuttal behind closed doors.

Victims rights groups are up in arms against Kobe's lawyers. They are quick to shout "rape shield law violation," apparently without having read the actual text of the law. Colorado's law has no requirement that the Judge be advised of the intent to introduce evidence of prior or subsquent sexual conduct at a pre-trial hearing. In addition, the rape shield law provides that while evidence of prior or subsequent sexual conduct is presumed irrelevant and inadmissible, there are exceptions. Here's the actual text of the statute:

Bump and Update: The defense dropped a bombshell. We agree with the legal analysts quoted in the article who speculate it helped Kobe. The hearing will continue next Wednesday. [link fixed.]

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1/9 3:33 pm
Update: Ugly details are coming out. But so far, it's just the direct examination of the detective, no cross yet. People are speculating that Kobe himself might testify.

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original post, 1:30 pm

Contrary to prevailing legal speculation, including our own, Kobe Bryant's attorneys are proceeding with the preliminary hearing in the case. It just started and is expected to last two hours. No reports yet on what portions of the hearing, if any, will be closed to the public. That was decided at a hearing in the last hour. Clearly, if the defense is going forward, they aren't worried about what will come out in the public domain today. The defense is expected to call at least one witness that will challenge the accuser's credibility.

Earlier report is here.

Bump and Update: Fox News reports that the hearing will go forward and the defense plans on calling witnesses to attack the accuser's credibility. We'll try to post updates throughout the day. If you're not into Kobe news, just scroll past this.

Kobe Bryant has arrived at the Eagle County courthouse for his court hearing scheduled to begin at 3 pm ET but whether it goes forward remians unclear.

Will it go forward? Hard to say. Up until yesterday, we were pretty sure the Judge's recent rulings that the accuser did not have to be present or testify and refusing to close the courtroom to the public would result in a waiver of the hearing. Now, it's anybody's guess.

Kobe Bryant has returned to basketball...for now. In a candid interview with reporters in Honolulu, Kobe describes the toll the criminal charges have taken on him and his family. He says he's "terrified" for his family and that basketball now comes second.

A telephone status conference is set for Tuesday of this week. Kobe's preliminary hearing is set for Thursday. An hour before the hearing the Judge will entertain motions to close specific portions of the hearing to the public.

If the preliminary hearing goes forward, it will not be a long one. The investigator who interviewed the accuser will testify as to what she told him. He will also testify as to what a nurse told him about the accuser's physical condition the night after her and Kobe's encounter, when she went to the hospital for an examination. Photographs showing the accuser's physical condition will be introduced in evidence. Whether those will be made public is yet to be determined.

The prosecution will not be introducing the accuser's videotaped statement to investigators or Kobe's audio statement. They bartered these away to bolster their argument for a public hearing. (See page 13, Paragraph 2 of the Judge's order.)

CBS's " 48 Hours" tonight presents an interview with a former boyfriend of Kobe Bryant's accuser. We've seen advance clips. The young man, Johnray Strickland, states that the accuser asked him to present her side of the story because she feels she's being unfairly treated in the media. Among other details, Strickland says the accuser would love to see Kobe Bryant in jail; that she is definitely a victim and not just an accuser; that she was sexually assaulted by Kobe; and that the reason she went back to Kobe's room alone after getting off work that night was because she felt safe with him, primarily because she knew he was married. He also confirms her two prior overdoses on pills.

We hope people avoid watching the interview. Mr. Strickland wasn't there, didn't see anything, and is only repeating what the accuser told him and what she wants repeated. It's tabloid trash, not news, and we're suprised and disappointed a national network like CBS is running it.

Our legal view (as reported in today's Los Angeles Times):

The interview with a friend of Bryant's accuser that will air tonight on CBS' "48 Hours Investigates" is troubling to legal analysts, because Johnray Strickland said the woman asked him to go public.

"I'm appalled by it," said Jeralyn Merritt, a Colorado defense attorney. "It smacks of unfairness. We have no way of knowing that what she said to him is truthful."

The judge presiding over the case issued a gag order July 24, but it appears to apply only to attorneys and law enforcement officials — not to Bryant's accuser or other witnesses.

"She made a serious charge and should let it work through the courts," Merritt said. "If it doesn't violate the letter of the gag order, it violates the spirit."

Key rulings came down in the Kobe Bryant case today:

The Judge will not allow the defense to call the accuser at the preliminary hearing. The Prosecution has agreed not to introduce the accuser's videotaped statement.

The preliminary hearing will be open. However, the Judge will entertain motions to close parts of it. The parties will meet with the Judge just before the hearing to discuss this.

The Judge refused a defense request for the accuser's prior medical records, saying the request should be made later before the trial judge. (This judge loses jurisdiction over the case once it's bound over for trial after the preliminary hearing or waiver of preliminary hearing.)

The Judge also set a telephone status conference two days before the preliminary hearing. We suspect that is for the defense to advise the Court if they still wish to go forward with a preliminary hearing. Without the accuser's availability for cross-examination, we see no benefit to a preliminary hearing. We think the defense will waive it. Or seek a stay while it appeals today's decisions to a higher court.

We will be discussing these developments tonight with Dan Abrams on MSNBC's Abrams Report (9 - 9:30 pm ET.)

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