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Kobe Bryant Preliminary Hearing Resumes Today

Aired October 15, 2003 - 07:14   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


SOLEDAD O'BRIEN, CNN ANCHOR: Let's go to Colorado now, where Kobe Bryant returns to court today for the resumption of his preliminary hearing. Details of the sexual assault case against him were made public for the first time last week. Now, prosecutors are accusing the defense of trying to smear at accuser.
CNN's Gary Tuchman joins us live in Eagle, Colorado, with the very latest on this case.

Gary -- good morning.

GARY TUCHMAN, CNN NATIONAL CORRESPONDENT: Soledad, good morning to you.

The Los Angeles Lakers star will be here again today for preliminary hearing part two, but it's not expected to start routinely. That's because on the eve of this hearing last night, the prosecution filed a complaint with the judge saying that Kobe Bryant's defense attorneys last week made quote -- "a conscious misrepresentation of the evidence in order to smear the victim publicly."

Well, now, 45 minutes before this hearing starts, both sides will meet with the judge privately to discuss the complaint.

(BEGIN VIDEOTAPE)

TUCHMAN (voice-over): It is Kobe Bryant who is being prosecuted, but it's his attorney, Pamela Mackey, who managed to take some of the attention away from him by putting it on herself.

DAVID LUGERT, COLORADO DEFENSE ATTORNEY: She was sending a message to the public that she's going to zealously represent her client and pull out all the stops in representing him.

TUCHMAN: After being warned not to do so, Pamela Mackey said the alleged rape victim's name multiple times in open court. She also made insinuations about the woman's sexual history.

This all came after a prosecution witness, sheriff's detective Doug Winters, testified about his interview with the accuser, who said Kobe Bryant forced himself on her. The detective showed pictures of injuries to her jaw and private area, and testified that nurses stated the injuries were not consistent with consensual sex, which led to defense attorney Pamela Mackey asking the detective if they were -- quote -- "consistent with someone who had sex with three different men in three days." That comment led to an angry judge ending the hearing for the day. When it resumes on Wednesday, Bryant's attorney will continue her cross-examination of the detective. If defense attorneys have any other surprises, they're not saying.

Bryant went back to California after last week's court session, but will be back for this one. The judge pledging it will not go into a third day.

(END VIDEOTAPE)

Now, after this tension-filled session last Thursday, prosecutors said they wanted the remainder of the preliminary hearing to be closed to reporters. We expect them to go into the courthouse today and tell the judge the same thing -- that they want the remainder of the hearing closed. That's ironic, because originally the defense said they wanted the hearing closed. The judge ruled it would be open. So, we'll be anxious to see what the judge has to say about it today.

The hearing is scheduled to begin at 11:00 Eastern time.

Soledad -- back to you.

O'BRIEN: CNN's Gary Tuchman for us. Yes, we will all be waiting to hear what the judge has to say in that case. Gary, thanks.

Well, what can we expect today in court? Joining us this morning is Linda Fairstein. She is a former prosecutor of sex crimes here in New York.

It's nice to have you. Thanks for joining us. And I want to get you to weigh in with your experience on this case.

First, the defense seems to be operating under the theory that a strong offense is the best defense here. Do you think today we're going to see the shock of the allegations or sort of the drama in the courtroom that we saw last week?

LINDA FAIRSTEIN, FORMER PROSECUTOR OF SEX CRIMES: I think last week's shocker was the question about sexual acts allegedly within three days with three other men before the attack. And I think they're going to calm down a bit today in court, because I think the motion filed by the prosecution last night is to put an end to that kind of shot across the bow in public.

O'BRIEN: So, give me a sense, then. And Gary Tuchman just moments ago mentioned that motion, but I'll repeat it. They say -- quote -- "Defense attorneys made a conscious misrepresentation of the evidence in order to smear the victim publicly." One, I'm curious to know if you agree with that statement.

FAIRSTEIN: I think that's probably why the defense did it. I think, one, to send a message to the complaining witness in this case that it's hardball; that this is going to be a very tough process. And, two, we had her statement last week through the detective, and this was a way of saying, let me tell you something else about her. Rape shield laws, we've used that expression a lot in covering these hearings. Rape shield laws don't mean that there is nothing about the victim's sexual history that can come into evidence, but there's a proper way for a defense attorney to do it. And that's to file a motion with the court asking to have an in-camera, a private hearing, about what their good-faith basis is for making these points, and there may be something very relevant. If a defense attorney can prove that an injury was caused by another sexual partner, they have a right to introduce that evidence.

But, first, you make that application behind closed doors. I think this judge is likely to come down pretty hard on Ms. Mackey, who has a great reputation as an aggressive, tough defender, but may have stepped over the line.

O'BRIEN: Come down hard, meaning what? What do they do to her?

FAIRSTEIN: He could hold her in contempt.

O'BRIEN: Meaning what? I mean, throw her in jail?

FAIRSTEIN: He could do that, absolutely. Or sanction her or fine her. Or he may just send a very strong message back that he's not tolerating this again. Apparently in court last week, he told her not to use the complaining witness's name, and she did repeatedly. So, the judge may just clamp down a little harder.

O'BRIEN: Now, this statement that you talked about that everybody was talking about last week, this three different men over three days sort of thing, does the defense attorney, Mackey, have to explain it? Does she have to bring it back again? Does she have to avoid it? What happens to that statement that to some degree is just sort of floating out there with no one commenting on it in any official capacity?

FAIRSTEIN: Well, this may be part of last night's motion. The prosecution may be demanding what we call a good-faith basis in private before the judge. You tell us why you're saying this. You know, the old question used to be, a defense attorney would say, and, sir, when did you stop beating your wife? It would imply that it had ever occurred.

So, if this is just a really tasteless baseless attempt to just make her look promiscuous and there is no basis in fact for it, the judge may find that Ms. Mackey's in contempt.

O'BRIEN: Former prosecutor Linda Fairstein, thanks so much for your insight in this. It's a very interesting case certainly just in learning about the legal process as well, I think.

FAIRSTEIN: You'll learn a lot more over the next few months.

O'BRIEN: I bet we will. Thanks so much.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com.






Aired October 15, 2003 - 07:14   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
SOLEDAD O'BRIEN, CNN ANCHOR: Let's go to Colorado now, where Kobe Bryant returns to court today for the resumption of his preliminary hearing. Details of the sexual assault case against him were made public for the first time last week. Now, prosecutors are accusing the defense of trying to smear at accuser.
CNN's Gary Tuchman joins us live in Eagle, Colorado, with the very latest on this case.

Gary -- good morning.

GARY TUCHMAN, CNN NATIONAL CORRESPONDENT: Soledad, good morning to you.

The Los Angeles Lakers star will be here again today for preliminary hearing part two, but it's not expected to start routinely. That's because on the eve of this hearing last night, the prosecution filed a complaint with the judge saying that Kobe Bryant's defense attorneys last week made quote -- "a conscious misrepresentation of the evidence in order to smear the victim publicly."

Well, now, 45 minutes before this hearing starts, both sides will meet with the judge privately to discuss the complaint.

(BEGIN VIDEOTAPE)

TUCHMAN (voice-over): It is Kobe Bryant who is being prosecuted, but it's his attorney, Pamela Mackey, who managed to take some of the attention away from him by putting it on herself.

DAVID LUGERT, COLORADO DEFENSE ATTORNEY: She was sending a message to the public that she's going to zealously represent her client and pull out all the stops in representing him.

TUCHMAN: After being warned not to do so, Pamela Mackey said the alleged rape victim's name multiple times in open court. She also made insinuations about the woman's sexual history.

This all came after a prosecution witness, sheriff's detective Doug Winters, testified about his interview with the accuser, who said Kobe Bryant forced himself on her. The detective showed pictures of injuries to her jaw and private area, and testified that nurses stated the injuries were not consistent with consensual sex, which led to defense attorney Pamela Mackey asking the detective if they were -- quote -- "consistent with someone who had sex with three different men in three days." That comment led to an angry judge ending the hearing for the day. When it resumes on Wednesday, Bryant's attorney will continue her cross-examination of the detective. If defense attorneys have any other surprises, they're not saying.

Bryant went back to California after last week's court session, but will be back for this one. The judge pledging it will not go into a third day.

(END VIDEOTAPE)

Now, after this tension-filled session last Thursday, prosecutors said they wanted the remainder of the preliminary hearing to be closed to reporters. We expect them to go into the courthouse today and tell the judge the same thing -- that they want the remainder of the hearing closed. That's ironic, because originally the defense said they wanted the hearing closed. The judge ruled it would be open. So, we'll be anxious to see what the judge has to say about it today.

The hearing is scheduled to begin at 11:00 Eastern time.

Soledad -- back to you.

O'BRIEN: CNN's Gary Tuchman for us. Yes, we will all be waiting to hear what the judge has to say in that case. Gary, thanks.

Well, what can we expect today in court? Joining us this morning is Linda Fairstein. She is a former prosecutor of sex crimes here in New York.

It's nice to have you. Thanks for joining us. And I want to get you to weigh in with your experience on this case.

First, the defense seems to be operating under the theory that a strong offense is the best defense here. Do you think today we're going to see the shock of the allegations or sort of the drama in the courtroom that we saw last week?

LINDA FAIRSTEIN, FORMER PROSECUTOR OF SEX CRIMES: I think last week's shocker was the question about sexual acts allegedly within three days with three other men before the attack. And I think they're going to calm down a bit today in court, because I think the motion filed by the prosecution last night is to put an end to that kind of shot across the bow in public.

O'BRIEN: So, give me a sense, then. And Gary Tuchman just moments ago mentioned that motion, but I'll repeat it. They say -- quote -- "Defense attorneys made a conscious misrepresentation of the evidence in order to smear the victim publicly." One, I'm curious to know if you agree with that statement.

FAIRSTEIN: I think that's probably why the defense did it. I think, one, to send a message to the complaining witness in this case that it's hardball; that this is going to be a very tough process. And, two, we had her statement last week through the detective, and this was a way of saying, let me tell you something else about her. Rape shield laws, we've used that expression a lot in covering these hearings. Rape shield laws don't mean that there is nothing about the victim's sexual history that can come into evidence, but there's a proper way for a defense attorney to do it. And that's to file a motion with the court asking to have an in-camera, a private hearing, about what their good-faith basis is for making these points, and there may be something very relevant. If a defense attorney can prove that an injury was caused by another sexual partner, they have a right to introduce that evidence.

But, first, you make that application behind closed doors. I think this judge is likely to come down pretty hard on Ms. Mackey, who has a great reputation as an aggressive, tough defender, but may have stepped over the line.

O'BRIEN: Come down hard, meaning what? What do they do to her?

FAIRSTEIN: He could hold her in contempt.

O'BRIEN: Meaning what? I mean, throw her in jail?

FAIRSTEIN: He could do that, absolutely. Or sanction her or fine her. Or he may just send a very strong message back that he's not tolerating this again. Apparently in court last week, he told her not to use the complaining witness's name, and she did repeatedly. So, the judge may just clamp down a little harder.

O'BRIEN: Now, this statement that you talked about that everybody was talking about last week, this three different men over three days sort of thing, does the defense attorney, Mackey, have to explain it? Does she have to bring it back again? Does she have to avoid it? What happens to that statement that to some degree is just sort of floating out there with no one commenting on it in any official capacity?

FAIRSTEIN: Well, this may be part of last night's motion. The prosecution may be demanding what we call a good-faith basis in private before the judge. You tell us why you're saying this. You know, the old question used to be, a defense attorney would say, and, sir, when did you stop beating your wife? It would imply that it had ever occurred.

So, if this is just a really tasteless baseless attempt to just make her look promiscuous and there is no basis in fact for it, the judge may find that Ms. Mackey's in contempt.

O'BRIEN: Former prosecutor Linda Fairstein, thanks so much for your insight in this. It's a very interesting case certainly just in learning about the legal process as well, I think.

FAIRSTEIN: You'll learn a lot more over the next few months.

O'BRIEN: I bet we will. Thanks so much.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com.