Prosecution charges 'smear' campaign tactics by defense

EAGLE, Colorado -- The second day of a preliminary hearing in the sexual assault case against basketball star Kobe Bryant began Wednesday with prosecutors alleging that Bryant's lawyer tried to smear the alleged victim during last week's proceedings.

Prior to the hearing prosecutors and defense attorneys had met in a closed session with Eagle County Judge Frederick Gannett, well past the scheduled 9 a.m. (11 a.m. EDT) beginning of the hearing to discuss whether to keep the proceedings open.

The closed-door meeting came as a result of a Tuesday night filing by that claimed that Bryant's defense attorneys at last week's hearing made a "conscious misrepresentation of the evidence in order to smear the (alleged) victim publicly." Prosecutors asked for a chance to tell Gannett why defense attorney Pamela Mackey's comment, "particularly at the probable cause stage, is irrelevant," in accordance with Colorado's rape shield law. 

Given the events of last week, when Mackey angered Gannett with her questioning of a police detective and caused the relatively routine legal proceeding to be halted and delayed, it may take little to close Wednesday's hearing, said legal analyst Jeffrey Toobin.

As the hearing began last week, details emerged about the rape allegations against Bryant, with a prosecution witness describing a friendly encounter that went out of control.

But Gannett halted the hearing after Mackey questioned the sexual history of the woman accusing Bryant. Mackey asked whether the woman's injuries would be "consistent with a person who had sex with three different men in three days?"

Toobin said that if Mackey pursues her line of questioning about the woman's sexual past, the judge might close the rest of the hearing, particularly in light of Tuesday's filing by prosecutors.

"Certainly some of it may be open," Toobin said. "But I think given the amount of publicity the last hearing got, and the unfortunate repetition of the woman's name by the defense, the judge may be open to arguments to close it."

Christopher Mueller, a University of Colorado School of Law professor, said Gannett would probably ask Mackey to provide him with information to back up her suggestion of promiscuity, according to a report from The Associated Press.

"And she can't really do that in an open hearing if you're going to try to protect the (alleged victim) against embarrassment," Mueller told the AP.

While Gannett had already ruled against having cameras in court, the defense had originally said it also wanted no reporters at the preliminary hearing, but Gannett did not agree. Reporters and members of the public were allowed in at last week's session.

Bryant, who is free on $25,000 bond, is expected to return to the Eagle, Colorado, County Courthouse for Wednesday's hearing.

An all-star guard for the Los Angeles Lakers, Bryant is accused of sexually assaulting the woman June 30 when he was a guest at a mountain lodge where she worked as a clerk in Edwards, Colorado, west of the Vail ski resort. Married and the father of a young girl, Bryant has acknowledged having had sex with the woman, but insists it was consensual and says he did not assault her.

Bryant faces one count of felony sexual assault, which carries a maximum sentence of life in prison.

Sanctions possible for Bryant attorney

At last week's hearing Mackey also named Bryant's accuser six times in open court last week after being warned not to do so. David Lugert, a former Colorado prosecutor turned defense attorney, said Mackey's conduct in court was a show of force on Bryant's behalf.

"She was sending a message to the public that she's going to zealously represent her client and pull out all the stops in doing so," Lugert said.

But Linda Fairstein, a sex crime prosecutor in the New York district attorney's office, said Mackey could face sanctions from the judge after last week's proceedings.

"The old question used to be, a defense attorney would say, 'And sir, when did you stop beating your wife?' It would imply that had it ever occurred," she said. "If this is just a really tasteless, baseless attempt to make her look promiscuous, and there's no basis in fact for it, the judge made find that Miss Mackey is in contempt."

When Wednesday's hearing resumes, the most significant piece of evidence expected to be introduced is the statement Bryant made to police, Toobin said. An actual tape of the basketball star's statement may be played, police may read back Bryant's statement, or the judge may close the hearing as the statement is introduced, Toobin said.

The same witness who testified last week -- Eagle County Sheriff's Detective Doug Winters -- is expected to continue testimony, Toobin said.

But some analysts suggest Mackey may have another surprise -- a rare subpoena for witnesses to testify. Typically, only the prosecution calls witnesses at a preliminary hearing.

But "the rules specifically allow the defense to put on its own evidence," Denver defense attorney Dan Recht said in a report by the AP.

Gannett is not expected to decide Wednesday whether to send Bryant's case to state district court. The judge has said he plans to issue a written decision later, most likely next wee