Bryant's attorneys seek details to look into accuser's sex life

Friday, May 28th 2004, 5:45 am

By: News On 6

EAGLE, Colo. (AP) _ The woman who accused Kobe Bryant of rape last summer might have misstated how many sexual partners she had around that time, and DNA samples from a co-worker and a former boyfriend of hers could prove it, the NBA star's attorneys say.

Defense attorney Hal Haddon asked a judge Thursday to order the men to submit DNA samples to try to match their genetic profiles to sperm and semen found during the investigation.

Bob Pietrack, a former bellman at the resort where the 19-year-old woman worked last summer, has agreed to submit to testing, Haddon said. Prosecution spokesman Krista Flannigan later confirmed that one of the witnesses, whom she declined to identify, consented.

The other man, former boyfriend Matt Herr, should not be forced to cooperate, his attorney argued.

Keith Tooley told the judge that whether his client had sex with the woman near the time of her encounter with Bryant has no bearing on the ultimate question in the case: whether she consented to sex with the Los Angeles Lakers guard.

``My client is a 19-year-old young man,'' he said. ``Twice he had to go on the witness stand and talk about intimate details of his life going back years. At some point, enough is enough.''

Bryant, 25, has pleaded not guilty to felony sexual assault. If convicted, he faces four years to life in prison or 20 years to life on probation and a fine up to $750,000.

After spending about six hours in court, Bryant left for Los Angeles and scored 31 points in an NBA playoff game against Minnesota. The Lakers won 92-85, and lead the series 3-1.

It was the fifth time the Lakers star has played in a game the night after appearing in court.

The woman's sexual history is key, if the judge decides it can be admitted at trial: The defense says injuries found on her body could have been caused by other sexual partners in the days surrounding her June 30 encounter with Bryant.

The defense has suggested one of those liaisons happened after she had sex with Bryant and before her hospital examination _ a claim the woman's attorney has vehemently denied.

``In any consent case, which this is, any other evidence of consensual sex is irrelevant,'' District Attorney Mark Hurlbert said. ``Without reasonable suspicion there is a crime, they (the defense) wants to compel the state to go to a citizen and take their DNA. As a public servant, this really churns my stomach.''

Bryant's accuser has told police she had sex with another man two days before June 30 and that he used a condom. But investigators say semen and sperm that do not match Bryant's genetic profile were found on her body and on two pairs of her underwear _ one worn that night and the other worn to the hospital exam.

District Judge Terry Ruckriegle did not immediately decide whether to require the DNA samples.

Haddon told the judge that Bryant's right to obtain possibly exculpatory evidence and avoid the possibility of life in prison outweighs Herr's right to refuse to provide a DNA sample, which would be obtained by swabbing the inside of his cheeks.

``We have shown pretty dramatically in sealed submissions that it is directly relevant to the truth-seeking function of this case,'' he said.

Tooley denied that Herr lied during earlier hearings to help the judge determine whether the woman's sexual history is relevant to the case.

Legal experts disagreed on whether Herr should be forced to submit samples.

``I think the defense argument certainly prevails,'' said Robert Pugsley, a professor at the Southwestern University School of Law. ``The right to a fair trial certainly trumps the (former) boyfriend's resistance.''

Former Denver prosecutor Karen Steinhauser said Herr's constitutional rights are absolute.

``This guy isn't a party to anything, he's not suspected of any type of crime,'' she said. ``That doesn't justify violating his Fourth Amendment rights'' against unreasonable search and seizure.

Earlier in the day, Ruckriegle granted a defense request to order AT&T Wireless Communications Inc. to provide him with records of text messages sent between Herr, the accuser and another unidentified person in the hours after the alleged attack. Ruckriegle said he would review the messages in private to determine whether they are relevant.

``To the extent the text messages might impeach statements or testimony, it's highly relevant,'' Ruckriegle said. ``Courts have a duty to ensure that evidence which might relate to a defendant's innocence is not withheld from the defense.''

Tooley had argued against that motion as well, saying the defense should not be allowed to go on a ``fishing expedition.''

In other action, Ruckriegle reprimanded prosecutors for failing to provide detailed information about witnesses they plan to call to rebut defense experts. He set new deadlines for prosecutors to submit detailed explanations about their witnesses' testimony.

Among the topics expected to be debated by the experts are the adequacy of the sheriff's investigation, genital trauma, a small bruise found on the alleged victim's jaw, strangulation and DNA testing, Ruckriegle said.