Originally created 10/13/03

Bryant's defense team lives up to reputation for surprise



EAGLE, Colo. -- Dozens of reporters scribbled furiously in the tense courtroom as the first details emerged about the rape allegations against Kobe Bryant - described by an investigator as a friendly encounter that quickly veered out of control.

Then Pamela Mackey stood.

She referred to the alleged victim six times by name and dropped a bombshell question to the detective: Could the woman's injuries be consistent with a person who had sex with three different men in the three days? A frustrated, angry judge halted the preliminary hearing until Wednesday.

Legal observers say the move was vintage Mackey - a carefully crafted line of questioning designed for maximum impact and backed up by a thorough knowledge of the prosecution's evidence. Critics say she violated the spirit of laws designed to protect the disclosure of the sexual history of rape victims.

"She wanted the public to talk about the victim being sexually promiscuous and poison the jury pool," said Wendy Murphy, a former prosecutor and a professor at the New England School of Law. She thinks the tactic may have backfired and instead made people feel sympathy for the woman.

Mackey apologized for using the victim's name, saying she would write herself a note to stop. The judge offered her a muzzle instead.

The 47-year-old defense attorney has a reputation as a zealous advocate for her high-profile clients, including former Colorado Avalanche goaltender Patrick Roy, whom she represented in a domestic violence case where charges were dismissed.

Karen Steinhauser, a University of Denver law professor and former prosecutor, said whether Mackey's question was ethical depends on if she and partner Hal Haddon, 62, have evidence to support it.

"This law firm has never had a reputation for doing sleazy things. They've never had a reputation for doing unethical things," she said.

Colorado's rape shield law generally prevents an alleged victim's sexual history from being discussed but there are exceptions - including if it casts doubt on whether injuries may have been sustained during sex with someone else.

To raise the issue at trial, defense lawyers must file a motion explaining their reasons and a judge must find the information credible and relevant. Preliminary hearings, however, are not mentioned in that statute.

Mackey will face a difficult battle to persuade a judge to allow evidence of the accuser's sexual history at trial, legal analysts said. She would need to offer physical evidence or testimony from a medical expert or a witness with firsthand knowledge of the woman's activities.

"There is no question it will be difficult. The rape shield law was designed to prevent the sullying of reputations of victims," former Denver District Attorney Norm Early said. "In this country we know that even prostitutes can be raped."

Even if the defense finds evidence of multiple sex partners, convincing a judge of the relevance may be difficult because it might be trumped by blood from the alleged victim that prosecutors say was found on Bryant's T-shirt, said Wendy Murphy, a professor at the New England School of Law.

The preliminary hearing had been expected to be an easy victory for prosecutors.

Larry Pozner, a former president of the National Association of Criminal Defense Lawyers, said the prosecution made a tactical error by asking a detective about a nurse's conclusions regarding the woman's injuries.

Armed with two large binders of documents, Mackey then methodically asked the detective about the nurse's conclusions. Sometimes, she had to tell him which page to look at when he said he didn't recall.

"She showed them in 20 minutes there's a bunch of facts they didn't know," Pozner said.

Bryant, 25, faces up to life in prison if convicted of the single count of felony sexual assault against him. He has said he and the 19-year-old Eagle woman had consensual sex June 30 while he stayed at the mountain resort where she worked.

Bryant, who returned to practice with the Los Angeles Lakers on Friday, is free on $25,000 bond. He must return to Eagle for the hearing.

Associated Press Robert Weller in Denver contributed to this report.



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