The Message

The Thong Show

On a recent episode of HBO's Real Time, comic Bill Maher suggested that the young woman who accuses basketballer Kobe Bryant of raping her last year is named "Looney McSlut." Amid audience laughter, he added, "I think it is, actually. They weren't supposed to release it, but..."

Thanks to Maher and his fellow yuksters, Eagle County District Court, the original legal home of the Bryant matter, became a national laughingstock for accidentally discharging confidential information on multiple occasions. But these screw-ups proved handy for the woman's lawyers, who've lately been lusting after a civil suit. During an August 4 appearance on Good Morning America, attorneys L. Lin Wood and John Clune said their client might be forced to make just such a move because of the court's gaffes. Six days later, on August 10, they pulled the trigger, filing suit against Bryant in U.S. District Court in Denver.

Wood, of course, provides a telling link between Colorado's latest tabloid sensation and the mother of them all; he represented John and Patsy Ramsey following the murder of their daughter, JonBenét. As such, he's grown adept at reading the writing on the wall, not to mention the testimony from a pre-trial hearing on June 21 and 22. The general public got a chance to peruse much of this material as well, thanks to more court bungling and the willingness of several media organizations, including the Denver Post, to challenge an attempt to close the barn door after the horse was loose.

The star of the show on the days in question was Dr. Elizabeth Johnson, a defense expert who discussed semen from two men that was found in a purple thong worn by the woman on the night she says the rape occurred. Johnson noted that one sample could be traced to Bryant, while the other came from an unknown individual she identified by the comic-book-like handle Mr. X. Since none of Mr. X's DNA was found on Bryant, Johnson surmised that the woman had intercourse with this third party mere hours after her encounter with the Los Angeles Lakers star.

Suggestions that Bryant's legal team, headed by attorneys Hal Haddon and Pamela Mackey, planned to level such charges are nothing new. Cynthia Stone, spokeswoman for the Colorado Coalition Against Sexual Assault (CCASA), believes that Haddon and Mackey have been trying to "taint the jury pool and discredit this young woman in the public's mind" by putting incendiary and inappropriate material into pre-trial motions, which are public in Colorado. This "loophole," as Stone calls it, was recently closed in California, and Russ Bogh, the assemblyman who introduced the bill that plugged the gap there, told the Los Angeles-based Daily Bulletin in June that the excesses of Bryant's lawyers helped motivate him to act.

Attempts to pass similar legislation in Colorado have gone nowhere. Nevertheless, Mr. X might have remained a mystery until trial was under way if, on June 24, court reporter Michelle Goodbee hadn't accidentally e-mailed a mammoth 206 pages worth of transcripts concerning him to seven news organizations: the Denver Post, the Los Angeles Times, CBS, ESPN, Fox News, the Associated Press and the offices of TV's Celebrity Justice. This blunder led to a series of legal maneuvers that didn't end until August 2, when Eagle County Judge Terry Ruckriegle reluctantly issued a slightly sanitized version of the disputed documents.

Previously, Ruckriegle demanded that media outlets obliterate the misdirected e-mails. Post editor Greg Moore construed this order to be prior restraint -- the censoring of material before it's disseminated, in possible violation of the First Amendment. "The principle here is whether a judge could dictate to the press whether the press could or couldn't print something," he says. "We believe there's a good, solid body of law that says you can't do that."

Indeed, the U.S. Supreme Court's 1971 decision in favor of the New York Times, which obtained a damning government study dubbed the Pentagon Papers at the height of the Vietnam War, set the prior-restraint bar awfully high. Even so, CCASA's Stone regards any attempt to equate the Pentagon Papers with the Bryant transcripts to be patently absurd. "There's quite a difference between going after corrupt government officials and going after the sex life of a nineteen-year-old," she says. "Will this really further an intelligent discourse on either the issue of sexual assault or this case in general? No, it won't."

Lucy Dalglish, executive director of the Arlington, Virginia-based Reporters Committee for Freedom of the Press (RCFP), which supported the Post's position, counters that such distinctions are secondary to the legal standards at stake. "The only times prior restraint has been upheld have been in cases where there was a competing constitutional interest," she maintains. "And a statute in Colorado that protects a victim's identity doesn't rise to the level of the First Amendment." In her view, Ruckriegle's order was "like trying to unring the bell."

At first glance, it appears that the Post could have avoided a six-week slog through the judicial system had it been quicker on the draw. According to a June 25 article by the paper's Steve Lipsher, who's done a fine job on this story, court reporter Goodbee e-mailed the forbidden file at 1:19 p.m. on the 24th -- and her follow-up message, which read, in part, "The transcripts sent earlier today are SEALED and should be deleted," didn't arrive for another four hours. A subsequent command from Ruckriegle to "delete and destroy any copies and not reveal any contents" of the e-mail or risk a contempt-of-court citation was tardier still, rolling in at 6:41 p.m.

Had the Post placed the transcripts on its website during the five hours between getting the message and being told by Ruckriegle not to share them, the judge's decree would have been moot. That's the approach the Post took on July 28, after a sealed document was inadvertently included in a special Kobe web archive. The two-page "Formal Stipulation for Physical Evidence Taken From Defendant at Hospital," which dealt with "penile swabs" used on Bryant, was only online at www.courts.state.co.us for about an hour that afternoon. Attentive Post personnel spotted it during that span and made it available, sans the woman's name, at www.denverpost.com before Ruckriegle could cry foul.

As it turned out, though, publishing the transcripts wasn't quite as simple. Editor Moore says the e-mail came to Lipsher's home computer at a time when he was out on a story. Upon Lipsher's return, all three e-mails -- the pair from Goodbee, and Ruckriegle's capper -- were waiting for him. That meant the Post would have knowingly violated the court's edict had it immediately put the transcripts on the Internet. Moore was reluctant to take that step, in part because of the document's extreme length. "We needed to take the time to read it, to try and figure out what we had," he says. Moreover, Post execs made the shaky assumption that Ruckriegle's command would be hastily swept aside by a higher court. "It took a lot longer than we had anticipated," Moore concedes, "and took a few different turns than we anticipated, too."

The biggest twist involved the Colorado Supreme Court, which, in a July 19 decision, voted 4-3 not to allow the transcripts to be published. This wasn't a total victory for Ruckriegle, since the court majority quashed his directive to trash the transcripts and told the judge to decide if part of the information could be made public. Still, RCFP's Dalglish found herself agreeing with dissenting justice Michael Bender, whom she paraphrases as saying, "The State of Colorado had an obligation to protect this young woman, and the State of Colorado blew it."

The next step for the Post and its fellow plaintiffs was the U.S. Supreme Court, but Justice Stephen Breyer's July 26 response to their entreaty largely dodged the prior-restraint argument. He noted that Ruckriegle, in the wake of the Colorado Supreme Court's actions, had said some of the material in the transcripts could probably be released. With that in mind, Breyer gave Ruckriegle two days to do so.

This deadline came and went, prompting Rocky editor/president/publisher John Temple to weigh in on the matter. In a July 31 column, "The Media May Have Miscalculated," he wrote, "I think it would have been better if at least one of the seven [media organizations] had published a story at the outset." Like this line, the piece as a whole implies that the Post and company were being gutless by not breaking unjust judicial pronouncements, even if the consequence might be an epic court wrangle. But Temple didn't exhibit much boldness when he failed to so much as mention the Post in his salvo -- an all-too-typical example of letting crosstown competition get in the way of good journalism.

Calls and e-mails to Temple about his column weren't returned. Moore, for his part, shrugs off his fellow editor's quasi-veiled criticism. "That's easy for him to say," he maintains. "You need time to determine the value of information. You don't just get information and immediately post it; that's silly. We wanted it to be an ethical decision-making process, and it was."

The delay had another drawback for the Post. The paper would have had a significant scoop, at least locally, but when Ruckriegle finally released the transcripts on August 2, a week after Justice Breyer gave him 48 hours to comply, he made them available to the media in general. Hence, the Post's coverage appeared on the same day as the Rocky's did. Even so, Moore isn't complaining. "Those are the breaks of the game," he says.

The cuts made by Ruckriegle were fairly modest. Reporter Peggy Lowe, writing about the transcripts in the August 3 Rocky, said the judge redacted "any mention of the woman's name, some of her sexual activity, mental health history, medications and any drug or alcohol use." As for Moore, he characterizes the redactions as "minor. Nothing to be upset about. They kind of make you wonder why there were redacted at all."

For this reason, the Post and the other media outlets have dropped plans to further pursue the matter in court. In Moore's words, "I don't believe it sets a precedent, and our lawyers and media partners don't believe it does, either. This is a unique case." Yet he says the paper has learned a lesson: "In light of the shifting sands in rulings on prior restraints, the media will have to make some additional calculations. And we'll do that."

In the meantime, the August 10 filing promises that Kobe Bryant news junkies will have plenty of opportunities to decide between right and thong.

Back to court: Two media-oriented legal conflicts previously noted in this space are progressing in intriguing ways.

Earlier this year, Megan Fromm, editor of the Mesa State College Criterion, sued the MSC board of trustees after the group declined to provide minutes to a closed-door meeting last November; the get-together focused upon Tim Foster, the sole finalist for the open position of college president ("Learning Curve," March 18). Fromm, corresponding via e-mail, notes that in early July, Mesa County District Judge Amanda Bailey "ruled that the board did enter into executive session illegally and that they are not entitled to attorney's fees and costs from me." Kenzo Kawanabe, a Denver-based lawyer who's representing Fromm, adds that Bailey "asked that the parties get together and provide a case-management order, which controls how the remainder of the case is to be resolved. It's due August 11." Settlement discussions followed, and while Kawanabe can't discuss the details, he says, "My client is still pursuing access to the board's executive-session records of the closed-session meetings." Whether Fromm gets them or not, she's already reminded the board of trustees that the vast majority of its consultations should take place in the sunshine.

Negotiations are also ongoing in a lawsuit filed by editor Heath Urie and two other representatives of the Mirror, a student-run newspaper affiliated with the University of Northern Colorado in Greeley. The suit accused UNC's Student Representative Council of violating Colorado's open-meetings law three times, beginning in September 2003 ("Press On," May 20). No one's talking publicly in this instance, either, but a settlement could be in the offing. In July, meanwhile, Urie joined a second suit after UNC's board of trustees rubber-stamped funding cuts for the Mirror that were recommended by the SRC, in a move that plaintiffs see as retaliation for tough reporting. While a final ruling hasn't been made in the July action, U.S. District Judge Lewis Babcockgranted an injunction that will keep the Mirror's budget at the previous year's levels until the lawsuit is decided.

Urie says the Mirror staff isn't looking for a big payday. "I would love to just have level funding and be out of the political process," he says. "If this newspaper can survive on $37,000 a year for the next ten years without having to beg or pander to the people we write about, that would be nice."

The Manchurian quarterback: In the July 15 edition of this column, I argued that advance coverage of John Elway's induction into football's Hall of Fame was excessive and would only get more noxious as the big day neared. Well, Elway was enshrined on August 8, and I've got to admit that I was wrong. The ten-person crew Channel 4 sent to report about the Canton, Ohio, ceremony seemed modest enough, and I thought it was cool how other television outlets matched the Broncos station's hyperbole adjective for adjective. The special programs lauding Big John were equally wonderful, as were the Elway sections and next-day features in the dailies. Reprinting Elway's Hall speech as if it were the Gettysburg Address, as both papers did, was totally appropriate, as was the Rocky article whose headline declared that the rift between the QB and former head coach Dan Reeves was "healed" even though the paper's Lee Rasizer implied that the pair hadn't chatted face to face since January. And if some news wasn't reported to make room for these Mile High salutes, that's fine by me -- because what I don't know can't hurt me.

By the way, the microchip that was recently implanted under my skin seems to be working perfectly. The only drawback is that every night, I have the same dream -- about the three Super Bowls the Broncos lost with Elway at the helm. But what's a few nightmares among friends?

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