Defense tests rape-shield law

The Denver Post ^ | 01/14/2004 | Steve Lipsher

[Therapist]

Kobe Bryant's defense attorneys asked the judge in his sexual-assault case Tuesday to allow them to cite the accuser's sexual encounters around the day of the alleged incident.

They also want to explore her use of psychiatric drugs to treat manic-depression.

The defense team is seeking to pierce the state's rape-shield law, which generally prevents introducing an alleged victim's sexual history, and which prosecutors earlier in the week vehemently defended. They argued that other sexual encounters could have caused her injuries.

"There is substantial evidence that the accuser had multiple sex partners within the 72 hours preceding her physical examination (for rape) at Valley View Hospital," defense attorney Pamela Mackey wrote in one of several motions released Tuesday by the court. "The medical literature and standard medical texts explain that ... injuries are expectable, even likely or common, as a result of consensual sexual intercourse."

Additionally, Mackey argued, because the woman wore supposedly clean panties to the rape exam that later were determined to contain semen and pubic hair from someone other than Bryant, she likely had sex after the encounter with Bryant. And that could be another possible source of the injuries, Mackey said.

The defense also is seeking to reveal the mental-health history of the 19-year-old woman. They want to suggest that the sexual encounter with Bryant was during a "manic" phase followed by the remorse or depression often seen in bipolar disorder. The woman's perception, the attorneys argue, may have been altered by drugs or alcohol.

"Treatment of mental illness with drugs is admissible on the issue of the accuser's credibility and ability to perceive and recall," Mackey wrote. "The facts of this case strongly suggest that the accuser was either in a manic state or experiencing rapid cycling of manic and depressive states at the time of the incident with Mr. Bryant."

She indicates that the woman is reported to have taken the antidepressant Wellbutrin and the antipsychotic medication Seroquel, both commonly prescribed for manic-depression.

Bryant, 25, has admitted to committing adultery with the employee of the upscale Lodge & Spa at Cordillera near Edwards on June 30 while he was in the area for minor knee surgery, but said the liaison was consensual.

Krista Flannigan, spokeswoman for District Attorney Mark Hurlbert, said she could not comment on how the defense may have gotten supposedly confidential medical information or even if it is accurate. But she noted that some people claiming to be friends of the alleged victim have said the woman may suffer from bipolar disorder.

Prosecutors previously argued the rape-shield law precludes the defense from a blanket inquiry into the woman's sexual history.

But they have indicated they intend to rely on the testimony of a sex-assault nurse examiner to explain the woman's injuries, and the defense wants to be able to ask the nurse about other sexual encounters immediately before and possibly after the encounter.

Eagle County defense attorney Dave Lugert said even if the motions to introduce the evidence aren't allowed, Mackey's allegations clearly are intended to cast doubts among the public and the jury pool.

"All of this, of course, is great fodder for Kobe Bryant," he said.

[Therapist]

Author Linda Fairstein, "The Kills", was on Imus this morning. She prosecuted sex crimes in New York City for thirty years. During that time she never encountered a so-called "victim" that had sex shortly after being raped. She also questioned why the "victim" went to Kobe's room three times and why the bellhop drove her home. Did the bellhop drive her home in other ways?

Not to mention that the "victim" told the lead investigator that she did not say "No".

The Eagle County D.A. appears to have ignored many red flags in making this charge. Is he making a name for himself in order to run for governor?

[af_vet_1981]

Why do you think people are compelled to shill for rapists ?

[Therapist]

Linda Fairstein, an obviously qualified expert, has no ulterior reason to show support for Bryant. She is now a wealthy, successful author.

What is your excuse for your position?

[AZFolks]

I am and have been deeply troubled by this case. Last week I was watching one of the myriad of shows dealing with this topic and everyone referred to the woman as "the victim" and Kobe Bryant as "the rapist." Gone was the word "alleged." Terrorists get the term alleged but Kobe does not! Everyone is worried about the emotional trauma this young lady will suffer if pressed. No one seems to worry that Kobe Bryant could spend the rest of his life in jail. The sixth amendment gives the accused the right to confront his accuser in a court of law. Since this is a he said, she said, how can the evidence be suppressed that this woman may be mentally unbalanced? We are told that past sexual conduct, state of mind or activity leading up to a case of alleged rape is not relevant. Does that really make sense? If the information is suppressed, is Kobe Bryant really being allowed to defend himself? Is it because she is a female and Kobe is a male (? black male)? Paranoia from a male reader or honest concern?

[Therapist]

A local sports radio station announced last week that the sports story of the year was the rape "conviction" of Kobe Bryant. This was on several times until it was changed to "allegegations" against Kobe Bryant. Unbelievable!

I would hope that the Bryant team goes after the Eagle County prosecutor.

[af_vet_1981]

I don't like rapists. I don't like people who support rapists. They offend me. They offend G-d.

Rapists Hall of Shame
1. Kobe Bryant
2. Bill Clinton
3. Andrew Luster
4. Mike Tyson
5. David Westerfield

[cyncooper]

It hasn't been established the girl had sex after the Bryant encounter.

And what's with the "or alcohol" business?

[cyncooper]

Not to mention that the "victim" told the lead investigator that she did not say "No".

Wrong.

[cyncooper]

Linda Fairstein, an obviously qualified expert, has no ulterior reason to show support for Bryant. She is now a wealthy, successful author.

Then she ought to stick to facts.

What do you base your comments on?

[Therapist]

No, you are wrong. She changed her story. Probably saw the $.

[cyncooper]

Most people except the Lakers fans who chanted "Guilty" at his last game uses the word "alleged" when speaking of Bryant. Conversely the girl is not getting an easy ride.

Paranoia from a male reader or honest concern?

If she is lying he does not deserve to be called a rapist. But the fact remains, if he had not had the encounter with her, even it was "consensual", he would not be in the predicament.

[cyncooper]

No, I am right.

As usual.

[Therapist]

Linda Fairstein is far more qualified than you or I. Not to mention that she has many more years of experience than the Eagle County DA.

[cyncooper]

Linda Fairstein is far more qualified than you or I.

Obviously from what you have posted about her comments regarding the case she is not "qualified" as an expert in this instance, since according to your account she misstated the facts and then rendered an opinion based on that erroneous basis.

Sorry, you are still wrong.

Note: That does not mean I have concluded Bryant committed rape or if the girl in fact had sex afterwards. It certainly has not been established, though, and until *facts* are presented in such a manner that are convincing either way I will not make a conclusion.

But this Farstein woman has made several errors in her recounting of what the state of the record is, if you have represented her appearance on Imus correctly. Therefore I will disregard her opinion.

[AZFolks]

Fascinating discussion concerning the facts. Doesn't Kobe Bryant have a right to allow the facts to come out to a jury with people under oath so there will be no errors or misinterpretations? If he is guilty, he deserves punishment but I still do not believe the truth will out until all dirty laundry is hung out.

[cyncooper]

Fascinating discussion concerning the facts. Doesn't Kobe Bryant have a right to allow the facts to come out to a jury with people under oath so there will be no errors or misinterpretations?

Is this how you form your opinions? By leaping and bounding to unsupported conclusions?

Who on God's green earth said Bryant shouldn't have the right to allow the facts to come out to a jury?

[AZFolks]

I was referring to the discussion as to whether she said "no." Please see the above notes. The facts I am not certain about: 1. Did she try to really commit suicide or was she hospitalized for exhaustion as reported?, 2. Is she really bipolar?, 3. Did she say "no"?, 4. Is she as sexually active as reported? 5. Did she have sex with three men in a brief period of time?, 6. Whose DNA is in her underwear?, 7. Did she really acted dazed after the incident as the bellhop says or did she go back to work as has been alleged?, 8. Has she ever made this kind of a claim before? What I said is that we really do not know the facts and people are spinning and talking the case to death. In a courtroom the truth will come out. In reality, I am not jumping to conclusions but rather asking everyone to allow the facts to come out!

[GladesGuru]

It sounds like you have had far too much coffee this morning. Do calm yourself and read before posting as your arguments so far sound like they are straight out of the mouth of some femi-nazi caracature.

As I read the Constitution, an accused has the right to compell witnesses. It's there - read it.

As an American, I am disturbed that you would post a list of rapists before the case in question has even opened, much less any evidence presented.

Should you continue such posts, the FR community may assume you to be a socialism impaired substitute for a FR participant, and a likely recent arrival from some mis-begottten land where the concept of 'assumption of innocence' has never been heard. Surely, this isn't what you want.

[goldstategop]

The victim's prior sexual history can't be raised by the defense in court. Only her prior sexual history with the defendant can be presented by the defense and they'd want to do that to show the subsequent act was in fact an act
of consensual sex.

[cyncooper]

I agree with wanting the answers to all those questions. And your point about a jury is right on. Having a witness testify and being cross-examined, and not going just by defense or prosecution representations, is the way to go.

I am confident all of that will come out, including any sexual activity around that time, because in my mind they need to establish she received the injuries from Bryant. And if she had sex after being with Bryant, that would be it...I don't see how anyone could convict if she did that.