Gang-Rape Trial Lawyers Cry Foul

Trying again to gut the prosecution’s case, defense lawyers in a high-profile Orange County gang-rape trial protested Monday that a videotape of the alleged incident should be excluded as evidence because it could have been tampered with last week.

Deputy Dist. Atty. Dan Hess acknowledged in court that, without the judge’s authorization or supervision, he and a video expert viewed the footage Wednesday afternoon to test the defense team’s contention that the tape is a doctored copy. A district attorney’s spokeswoman later said there was nothing unusual in that procedure.

The tape is the prosecution’s key evidence in the trial of three young men accused of raping a young woman who was then 16 and allegedly unconscious.

“It’s inappropriate to be conducting experiments on evidence in this case,” said attorney John D. Barnett, who represents Kyle Joseph Nachreiner, now 19, outside court Monday. “If the defense wanted to take the tape home for the night, nobody would stand for that. And we won’t stand for this.”

Nachreiner, along with Gregory Scott Haidl, 18, and Keith James Spann, 19, faces up to 55 years in prison if convicted on all counts. They say the encounter at the Corona del Mar home of Haidl’s father, a top official in the Orange County Sheriff’s Department, was consensual.

On Wednesday, Orange County Superior Court Judge Francisco P. Briseno will hold a hearing on the defense motion to exclude the video. He will probably call the video expert, Hess and court personnel to testify as to what happened.

Hess said in court Monday that he and video expert Brad Hagen privately viewed the tape in the court’s jury room for 10 or 15 minutes Wednesday. “He watched it and handed it back to me, and I put it back into evidence,” Hess told the judge.

There was nothing improper about the prosecutor’s actions, said Deputy Dist. Atty. Susan Kang Schroeder, a spokeswoman for her office. Evidence is permitted to be seen anytime inside the courtroom, she said.

“We look at evidence every day,” Schroeder told reporters outside court. “It’s no different than going in and looking at a picture.” She also denied it had been doctored, on Wednesday or any other time.

“Their theory is that the tape was altered [to begin with],” she said of the defense. “Now they’re saying we altered it to make it look unaltered. It doesn’t make any sense.”

Defense attorneys have contended that several minutes of the footage were erased between the time Haidl filmed the encounter and when a tape was turned over to police. A defense expert testified that freeze frames near the end of the 21-minute video proved that the tape in evidence is an altered copy. The prosecution says the tape is the camera original.

Hagen, a prosecution rebuttal witness, has been asked to testify about the reason for freeze frames.

The judge previously ruled that the videotape was admissible, and it has been viewed by jurors.