Rape tape won’t be shown to public

Deepa Bharath

A superior court judge presiding over the gang rape case involving

the son of an Orange County assistant sheriff agreed Wednesday to a

request by prosecutors not to show the public a copy of a videotape

that reportedly captured sexual acts three teenagers performed on an

unconscious 16-year-old girl, a key piece of evidence in the case.

Superior Court Judge Francisco Briseno did himself view Wednesday

a digital copy of the 20-minute videotape, positioning the television

monitors in such a way that the images were not viewed by the

audience in the gallery.

Briseno watched the video in the presence of prosecutors, defense

attorneys and two of the defendants, Gregory Haidl and Kyle

Nachreiner, whose attorneys have filed motions to dismiss the case.

Keith Spann, the third defendant, was not present.

Briseno’s decision was later criticized by an attorney for the

California First Amendment Coalition, who said it defeats the purpose

of a public court proceeding.

The video should have been shown to the members of the public and

the media present at Wednesday’s hearing, said Terry Francke, an

attorney with the Sacramento-based nonprofit.

“The whole reason we have public trials and public hearings is so

that spectators can monitor them -- if they’re fair, unbiased and if

justice is being done,” he said.

When spectators are prevented from seeing a key piece of evidence

the judge or the jury sees, it makes it hard for the public to

evaluate what the judge or jury may have factored into their

decision, Francke said.

“That applies to preliminary or pre-trial hearings too,” he said.

“Because if a case does not go to trial, then the preliminary hearing

becomes the final adjudication.”

Briseno declined to comment on his decision because the case is

pending.

Deputy District Atty. Brian Gerwitz argued in court that the

victim was a child at the time of the incident and that the video

would amount to child pornography.

“Playing this video of this girl being sexually assaulted in front

of members of the public and the media would be like re-victimizing

the victim,” he said.

Defense attorneys Joseph Cavallo and John Barnett said they agreed

with Gerwitz.

The judge seemed to agree, although reluctantly, with the

attorneys. Briseno said he had questions about not letting the public

view the tape.

“Unfortunately, in our community, cases like these have come up

before and they have been handled in public,” he said.

Briseno said he would be uncomfortable repeating this exceptional

procedure during a jury trial unless the attorneys could provide an

explicit legal reason to do so.

The prosecution had to weigh “protecting the rights of our victims

against the public’s right to know,” Deputy Dist. Atty. Susan

Schroeder said.

“In this case, we haven’t released the name of the victim or any

information that can identify her,” she said. “We deeply respect the

public’s right to know, but felt it was outweighed by the victim’s

right to privacy.”

And the district attorney does not want to deter victims from

coming forward in such cases in the future, Schroeder said.

Cavallo, the lead attorney for Haidl, said outside the courtroom

that he would prefer that the public not see the video “for the

alleged victim’s sake.”

“I don’t believe she needs to have her private parts exposed to

the public,” he said.

Cavallo has already filed several motions asking that the case

against Haidl be dismissed on grounds of prosecutorial misconduct. He

has also filed a motion asking the court to suppress the videotape,

which is the prosecution’s main piece of evidence. Cavallo’s motion

states that the tape was stolen from the defendants by their

acquaintances.

Haidl, son of Orange County Assistant Sheriff Don Haidl, Keith

Spann and Kyle Nachreiner, who were all 17 at the time of the

incident, face 24 counts. Spann and Nachreiner face enhancements for

allegedly inflicting great bodily injury to the victim and using a

deadly weapon -- a pool cue -- to penetrate the victim.

Orange County Superior Court Judge Everett Dickey ruled in January

that there was enough evidence in the case for the Rancho Cucamonga

High School students to stand trial after he viewed the same video.

The incident reportedly took place in Don Haidl’s Jade Cove home in

Newport Beach in July 2002.

The motions to dismiss the case are scheduled to be heard on Nov.

24 at 10 a.m. at the Central Justice Center in Santa Ana.

* DEEPA BHARATH covers public safety and courts. She may be

reached at (949) 574-4226 or by e-mail at deepa.bharath@latimes.com.