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10 ways the Haidl Three got off

Santa Ana- When, just 16 hours into their deliberations, jurors announced on June 28 they were “hopelessly deadlocked” in Orange County’s infamous Haidl rape case, observers may have recalled Mark Twain’s criticism that juries are often filled with easily prejudiced “fools and miscreants.”

It’s unlikely the eight men and four women of the Haidl jury will escape similar ridicule. After all, they couldn’t bring themselves to punish Greg Haidl, Keith Spann and Kyle Nachreiner for the videotaped drunken debauchery that sickened several respected judges and the California attorney general.

Prosecutors say that on July 6, 2002, the defendants gave Jane Doe–the 16-year-old alleged victim–beer, marijuana and five shots of liquor, and then engaged in sex with her on a garage sofa and pool table as she fell into a stupor. Later, they laughed, danced and mugged for the camera as they plunged such foreign objects as a Snapple bottle, Tree Top Apple juice can, lit cigarette and pool cue into the near motionless girl’s vagina and anus.

For law enforcement, the captured tape was everything. Police and prosecutors said it plainly showed each of the 24 charged acts, and they seemed to have the law on their side. It’s illegal to have sex with a person so intoxicated she cannot consent or resist throughout the encounter.

But the nine-member Haidl legal defense team including Peter Scalisi, John Barnett, Peter Morreale and Joe Cavallo blamed pornography, society, police, parents, alcohol, Doe-anyone and anything but their clients–and confidently predicted at the outset of the case that they’d supply “ample” reasonable doubt to foil the DA’s charges.

As excused jurors fled the courthouse on June 28, it was obvious the defense was right. Said Scalisi, “The government oversold the importance of the video. They misjudged its power. . . . There’s reasonable doubt all over this case.”

Cavallo–who led perhaps the most aggressive attack in memory on an alleged underaged rape victim, calling her a “slut”-played a sage in victory. His lesson from the case: “Parents need to spend more time knowing where their kids are.”

Barnett, who has successfully defended police officers caught on tape beating citizens, said the DA will likely never win convictions in this case. “We all know that simply looking at a video doesn’t show all of the story,” he said. “I think it’d be difficult to get 12 people to agree because of the emotional component.”

The split jury’s reaction to the case seems to prove Barnett’s point. Nevertheless, District Attorney Tony Rackauckas waited all of one day to announce he will retry the defendants after a scheduled Aug. 6 hearing. If he does, prosecutors will have to address several glaring weaknesses in the case.

Here are 10 issues Cavallo and his colleagues exploited to raise reasonable doubt in the minds of jurors:

1. No GHB. To explain Doe’s rapid fall into stupor during the gangbang, prosecutor Dan Hess alleged the defendants laced the girl’s cocktail with this powerful, date-rape sedative. The drug is apparently undetectable in testing as soon as four hours after ingestion. Police, who learned of the incident three days later, didn’t send Doe to the hospital in time for testing. Hess never presented any direct evidence the defendants used the drug. His expert, ex-LAPD officer and the nation’s foremost authority on GHB use Trinka Porrata, said only that Doe’s condition was “consistent” with GHB overdose. Defense lawyer Joe Cavallo called his own expert, a decorated former OC sheriff’s department drug-recognition expert, who said Doe exhibited no signs of GHB intoxication.

2. No ambush. Hess claimed in his opening and closing statements that the defendants lured Doe to their all-male late-night party in hopes of raping her. “They planned it, and they knew it was going to happen,” said Hess. “They targeted her.” But the prosecutor failed to present any evidence to support this contention. In fact, evidence indicated Doe likely went to the party willing to have consensual sex with at least Spann, the defendant she viewed as a potential boyfriend.

3. No force. After having consensual sex with two of the three defendants (Haidl and Spann) the night before the incident, a panty-less Doe arrived alone after midnight at Haidl’s Newport Beach house, told the defendants she wanted to get drunk, and then voluntarily drank their alcohol and smoked their marijuana. The defense introduced believable evidence that the girl liked to get drunk before having sex.

4. Inconsistent statements. Doe testified that she was knocked out and had no memory until after 10 a.m. the next day, but the defense produced cell-phone records proving she’d made a phone call an hour earlier. Doe’s mother also contradicted her daughter when she testified that Doe had recalled an even earlier event: urinating on the side of the highway on the way from Orange County to Rancho Cucamonga.

5. Dueling doctors. Dr. H. Ronald Fisk, the defense-paid neurologist, testified that Doe was conscious and could solve complex math problems during the gangbang. The prosecution’s neurologist, Dr. Peter Fotinakes, was equally sure that Doe was “somewhere between stupor and coma” and had no capacity to speak, much less say “no” to the defendants. Judge Francisco Briseño instructed jurors that when there are two reasonable interpretations of the same facts, they must side with the defense.

6. Questionable injuries. Immediately following the incident, Doe didn’t report any serious internal injuries to doctors and nurses, but at trial, she unveiled a secret she’d allegedly kept from everyone except her mother: she’d bled from the rectum after the gangbang. The prosecution didn’t need to prove Doe suffered any injuries; however, incredulous defense lawyers pounced on the new version. They portrayed her as a habitual liar. Outside the presence of the jury, Briseño even expressed skepticism about the late revelation.

7. Mysterious “morning after” pill. Doe testified that she had no memory of sex-unprotected or not-at the July 6 party, but the next day, she took a friend to a Planned Parenthood office, where she requested the so-called “morning after” pill that blocks pregnancy. Haidl and Spann had used condoms during their July 5 consensual encounters with her, but no one wore condoms during the videotaped gangbang.

8. Muddled intentions. During the first police interviews, Doe said she partly blamed herself for enticing the “horny” defendants and didn’t want them prosecuted. At the same time, several of her high school girlfriends said Doe offered differing versions of events. One story alleged that Doe claimed she’d enjoyed the gangbang and would do it again if given the chance. On the witness stand, Doe denied the tales and said she finally concluded the defendants deserved to be punished for taking advantage of her inebriated condition.

9. Teen sex and videotape. To demonstrate that Doe wasn’t averse to videotaping her sexual exploits, defense lawyers played a tape Spann recorded in bed with Doe during a teen party a week before the alleged rape. Doe claimed she wasn’t originally aware of the camera and ordered him to stop when she did. But at that point, the girl’s credibility had been damaged.

10. Pro-defense jury instructions. The California Supreme Court had strenuously rejected the notion of advanced consent in rape-by-intoxication cases. But to the delight of the defense, Briseño ordered-and prosecutors did not object to-a key instruction that seems to contradict the high court’s ruling. The instruction read, “Evidence has been introduced for the purpose of showing that the defendants and Jane Doe engaged in sexual intercourse on one or more occasions prior to the charge against the defendants in this case. If you believe this evidence [a certainty all jurors would], you should consider it only for the limited purpose of tending to show that Jane Doe consented to the acts . . . or the defendants had a good faith reasonable belief that Jane Doe consented to the act of sexual intercourse.” After reading this instruction, jurors voted 11-1 for acquittal on the first four of the 24 counts and reached mixed results on the others.



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