SMS could save Kobe Bryant

A judge on Thursday ordered text messages from the cell phone of a former boyfriend of the woman who accuses basketball star Kobe Bryant of rape to be turned over to the court, and said vital DNA samples should be retested.

The DNA retesting had been requested by prosecutors. Although the DNA samples were not identified in court, observers believe it is the samples taken from the woman for a police rape examination.

Defence attorneys have claimed in earlier pre-trial hearings that the woman had consensual sex hardly 15 hours after she said Bryant raped her and that such an encounter could explain injuries to the genital area that the prosecution says she sustained.

If traces of sperm and semen found in the woman's vagina during a rape test on July 1 show that she had sex with another man, it could also undermine the prosecution's case, because it would show that she lied to the police.

Eagle County District Judge Terry Ruckriegle, in ordering retesting, said it meant he could not set a trial date, as he had hoped to do, because any retesting could take weeks.

The original tests were done by the Colorado Bureau of Investigation. The retesting will be conducted by an independent laboratory at the request of Eagle County District Attorney Mark Hurlbert.

The judge deferred a decision on a defence request to have former boyfriend Matt Herr's DNA tested. Bryant's lawyers want the test to help prove their sex-within-hours-of-rape theory.

The woman has denied having sex after she said Bryant raped her on June 30 and before she went for a rape

Also possibly helpful to the defence were the text messages on Herr's cell phone made in the hours after the woman said she was raped by Bryant in his room at a Colorado resort where she worked.

Keith Tooley, an attorney for Herr, 19, said his client's privacy rights would be infringed if text messages or the DNA were turned over to the defence. He also told the court that there were no messages between his client and the young woman between June 30 and July 1, the day she reported she was raped.

But defence attorney Hal Haddon argued that there were indeed messages. "There is a text message early July 1 and a number after," Haddon claimed.

Ruckriegle said that in the end someone has to decide if Herr's right to privacy is outweighed by Bryant's right to a fair trial because the text messages may contain information that could help the defence. He said he would review them and give the defence what he thought was relevant to its case under seal.

The Los Angeles Lakers star has pleaded not guilty to raping the 19 year-old woman and said they had consensual sex. The defence has tried to portray Bryant's accuser as unstable.

Herr's attorney Keith Tooley told the court, "Whether my client had consensual sex with the alleged victim cannot matter. My client's DNA cannot shed any light. This has no bearing. My client is a 19 year-old; he has been subject to five subpoenas... he has had to talk about intimate details of his private life. At some point enough is enough."

(Additional reporting by Ellen Miller)