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Eagle man lands at center of Kobe case

RANDY WYRICK

EAGLE – How much can Matt Herr be asked to give? Apparently just a little bit more.

The 19-year-old Eagle man became the unwilling flash point of Thursday morning’s hearings in Kobe Bryant’s rape case. The judge ordered Herr’s cell phone text messages from Bryant’s alleged victim handed over for the court to review. But more importantly, defense attorneys also want a sample of Herr’s DNA.

Herr’s attorney, Keith Tooley, called it a fundamental violation of Herr’s Fourth Amendment protections against unreasonable search and seizure.

One of Bryant’s lead attorneys, Harold Haddon, said it’s an important piece of evidence, and that the defendant’s need for it outweighs any potential embarrassment it might cause.

Tooley called the defense request a “presumptively irrelevant fishing expedition.”

“My client is a 19-year-old young man who has been subjected to five subpoenas,” said Tooley. “He has twice testified about the most intimate details of his life. At some point enough is enough.”

Tooley said the defense has not shown Herr has done anything wrong, and that as a witness, Herr is not a party to this case. Tooley also said the defense cited no authority that the court can order a body search.

“Under the law, the information they’re seeking is presumed to be irrelevant,” said Tooley. “Whether she said ‘yes’ or whether she said ‘no,’ my client’s DNA cannot shed any light on it.”

District Attorney Mark Hurlbert argued that the court has no authority to order Herr to give a DNA sample.

“This is not an alternative suspect, this is a third party,” said Hurlbert. “It’s irrelevant in any consent case, and that’s essentially what this is.”

After the morning’s open hearings were done, former Denver District Attorney Norm Early called the defense request, “incredible to conceive that you can snatch people off the street and stick needles in them if they don’t want you to.”

In defense motions, Pamela Mackey and Haddon said the alleged victim had sex with someone else less than 15 hours after she says Bryant raped her in his hotel room. John Clune, the woman’s attorney, has called that claim “absolutely false.”

Haddon said Herr’s DNA can help tell the story of what happened shortly after Bryant’s encounter with his alleged victim.

Tooley waved his hand at the room full of reporters and said, “I don’t know what audience Mr. Haddon is playing to, but that implication must be corrected. The constitutional rights of my client are just as important at Mr. Bryant’s.”

Judge Terry Ruckriegle said issues such as the DNA request cause constitutional collisions.

“Someone has to make a decision about everyone’s just-as-important rights,” said Ruckriegle.

Ruckriegle also took a satirical poke at all the attorneys when he said such arguments raise an “interesting dichotomy,” that positions occasionally change, and that if he couldn’t see the combatants he would have a difficult time determining who stands on what side of the Fourth Amendment.

Defense attorneys asked Herr and Bob Pietrack to provide DNA samples, a request the prosecution protested. Pietrack was working as the bellman at the Lodge and Spa at Cordillera on the night of June 30, the night Bryant is accused of raping the 19-year-old Eagle woman. Pietrack has voluntarily provided a sample.

“One witness is willing to waive his constitutional rights and mine is not,” said Tooley. “That’s the beauty of America.”

Bryant, 25, will stand trial on one count of sexual assault. He is accused of raping the woman in his suite at the hotel. He has said the sex was consensual. Bryant pleaded not guilty to the charge earlier this month.

After Thursday’s hearing, Bryant travelled to Los Angeles, arriving in time to play in the Lakers’ NBA playoff game against Minnesota.


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