DENVER - Kobe Bryant could learn this week whether he will be tried on charges he sexually assaulted a 19-year-old hotel worker.

An Eagle County judge was expected to rule as early as Monday, with many legal analysts and even Bryant's defense attorney predicting the NBA star would be ordered to stand trial.

"The sole question before the judge is does he have any evidence that matches the elements of the crimes charged against Kobe Bryant — that's any evidence whatsoever," defense attorney Larry Pozner said Monday.

"Because the complaining witness has said Kobe Bryant is the person, it happened in Eagle County, Colorado, and she was sexually assaulted, our strong belief here is that he will bind the case over for trial."

That doesn't necessary mean there will be a trial, Pozner told NBC's "Today" show. He said the case could still end up being settled out of court.

A preliminary hearing that ended last week revealed graphic and sometimes conflicting evidence about the June 30 encounter between Bryant and his 19-year-old accuser.

Bryant, 25, has said the sex was consensual. His attorneys have attacked the woman's credibility by questioning her sexual history and bringing out evidence indicating she had sex with another man shortly before the alleged attack.

Prosecutors tried to portray Bryant as an arrogant athlete who held the woman down and raped her, concerned only that she might talk about the encounter.

A relatively low threshold of proof is required at a preliminary hearing before a case can go to trial. Under state law, evidence at such a hearing must be considered in a light most favorable to prosecutors.

If the judge decides to dismiss the charge against Bryant, he will put the decision on hold for 10 days to give prosecutors time to ask a district judge to take the case. Without such a request, Judge Frederick Gannett said he would dismiss Bryant's $25,000 bond.

If a trial is ordered, Bryant's attorneys could appeal, but legal experts say that would be unusual. The case could send the player to prison for life if convicted.

Bryant worked out with the Los Angeles Lakers (news)' younger players on Saturday in El Segundo, Calif., but didn't play in an exhibition game against Cleveland on Sunday night.

Despite outcry, sexual evidence in Bryant case could be admissible

By Matt Bean
Court TV.com

(Court TV) --It's been called a "smear campaign," a "conscious misrepresentation," and a "fishing expedition."

But, despite the outcry from critics, the push by Kobe Bryant's lawyers to admit evidence of his alleged victim's sexual history may get support from the very law that protects sexual assault victims from having their sexual histories used against them.

In an exception to Colorado's tough rape shield law, evidence of an alleged victim's sexual activity -- from semen stains to pregnancies -- is admissible as long as it is "offered for the purpose of showing that the act or acts charged were or were not committed by the defendant." In other words, the law doesn't shield an alleged victim from all mention of prior sexual activity. (More on the law)

"The rape shield law is not an absolute bar to any evidence," said Karen Steinhauser, a former Denver prosecutor specializing in domestic violence and a professor at the University of Denver College of Law.

Bryant's lawyers used that exception at his preliminary hearing this week to rebut prosecution testimony about genital injuries sustained by the alleged victim.

The "compelling evidence" they have linked to other sexual encounters included a pair of yellow, knit panties the 19-year-old hotel employee wore to her examination the day after the alleged assault.

The panties, admitted sheriff's detective Doug Winters on cross-examination, bore semen and pubic hair that could not be matched to Bryant, as well as the woman's blood. The woman also said she'd had sex with her boyfriend two are three days before the alleged attack, Winters said.

If the hotel employee had sex with more than one man during that time, Bryant's lawyers argue, she could have sustained her sexual injuries from any of those encounters.

Judge Frederick Gannett is expected to rule Monday on whether prosecutors showed they have sufficient evidence to hold a full-scale trial in district court. If he decides they have, as many expect he will, Gannett will touch off a behind-the-scenes battle over the controversial evidence.

But courtroom observers are divided over how influential the evidence will be.

"I think it decimates the prosecution's case," said Jeralyn Merritt, a Denver defense attorney. "How is the jury going to determine beyond a reasonable doubt that she's telling the truth when one or two other people could have caused these injuries?"

"It's not a bombshell," countered the former prosecutor, Steinhauser. "What if she had sex with 100 men in a hundred days? Does that say whether Kobe Bryant forced her to have sex or not?"

Defense lawyer Pamela Mackey surprised many when, while cross-examining Detective Winters last Friday, she asked whether the woman's injuries could have been caused by having sex with three different partners in three days.

Prosecutors immediately objected, citing pre-hearing discussions about what was, and what wasn't, fair game for open court.

"That's exactly what the judge was trying to prevent at the inception of the preliminary hearing by setting ground rules," said Norm Early, a former Denver prosecutor.

Gannett cut short the day's proceedings and solicited motions from both sides on whether the evidence should be admitted.

In his filing, prosecutor Mark Hurlbert called the move "a conscious misrepresentation of the evidence in order to smear the victim publicly."

But Mackey and Haddon said prosecutors were the ones twisting the evidence, by bringing up the blood on the panties but not the semen.

"The clear implication of this testimony was that the accuser was bleeding due to the alleged sexual assault," said the lawyers in their brief. "The prosecution deliberately mischaracterized that evidence by consciously failing to put before the Court all of the evidence concerning those panties."

Gannett's Wednesday decision to allow the testimony was issued behind closed doors, so it remains unknown whether the defense convinced him that the evidence satisfied an exception to the rape shield law, or whether he decided that Colorado's rape shield law does not apply to preliminary hearings. (Unlike in other states, Colorado's law does not specifically address preliminary hearings.)

Free to continue her cross-examination, Mackey brought up the yellow panties, revealing the basis for her three-men-in-three-days question.

"The first would be the June 27 sex with her boyfriend that she acknowledged to the detective, the second would be Kobe, and the third would be whoever's DNA was in her underwear," surmised Merritt.

Merritt believes that prosecutors opened the door to the rape shield exception when they charged Bryant with the level-three sexual assault charge. The level-three charge includes an element of physical assault, whereas the level-four charge (which carries the same maximum, life in prison, but a lighter, two-year minimum sentence) does not.

"The issue here is that Kobe Bryant is not just charged with sexual assault by overcoming the accuser's will, he's charged with overcoming the accuser's will through the application of physical force," said Merritt. "Once they introduce that, [Bryant] has a right to show that he isn't the person that committed the act of force."

Bryant's attorneys will have to file written notice within 30 days of the start of a trial offering proof that the material is relevant, and then win a face-off with prosecutors at a special pretrial hearing in district court.

That hearing, too, will take place behind closed doors. But regardless of its outcome, the damage to the prosecution's case may have been done when the evidence was revealed during the preliminary hearing, according to former prosecutor Early.

"You can't unring a bell," Early said.

You sound as sane as Timothy O'Leary in his prime.

Timothy O'Leary, BA (UCD); MA (Paris X); PhD (Deakin)

Timothy O'Leary left Ireland in 1989 having completed a BA at University College Dublin, and went to Paris where he did a Maitrise de Philosophie at the University of Paris X.

In 1992 he went to Australia, where he completed a PhD on ethics and aesthetics in Foucault's late work. A book based on this research was published in 2002 (Foucault and the Art of Ethics, Continuum).

He taught at several Australian universities before joining the Department of Philosophy at the University of Hong Kong in January 2001. His major research interests are in the fields of ethics, politics, and the philosophy of literature, with a particular focus on 20th century European philosophy.

In recent years he has published in the area of the philosophy of literature, especially in relation to the works of contemporary Irish writers. He is currently working on a book on literature and the transformation of experience. This book will bring together the philosophy of Foucault and Dewey with readings of contemporary poetry and fiction.

He has recently been a Visiting Research Fellow at the School of Philosophy, University of New South Wales, Sydney. In July 2003 he is a Visiting Fellow in the Department of Philosophy, University of Sydney.

E-mail: teoleary@hkucc.hku.hk

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