Judge twice denies mistrial in rape case

Deepa Bharath

An Orange County judge spent Thursday fending off a barrage of legal

maneuvers designed to rattle both sides standing in a high-profile

gang-rape case involving the son of an Orange County assistant

sheriff.

Almost all the legal motions, including requests for a mistrial

brought by attorneys for the three teenage defendants accused of

raping an unconscious 16-year-old girl, were shot down by Judge

Francisco Briseno.

Prosecutors say Greg Haidl, son of Orange County Assistant Sheriff

Don Haidl, Kyle Nachreiner and Keith Spann sexually assaulted the

girl, now 18, with various objects including a Snapple bottle, a

lighted cigarette and a pool cue at the elder Haidl’s Corona del Mar

home the night of July 5, 2002.

MISTRIAL REQUEST NO. 1

Defense attorneys asked for a mistrial alleging that the district

attorney had not divulged information about a workers’ compensation

fraud investigation of Newport Beach Police Det. Terri Fischer.

Haidl’s attorney, Joseph Cavallo, said on Thursday that the

district attorney’s office as early as September 2003 had an

incriminating tape of Fischer performing activities she could not

have performed if she were injured.

Fischer took the Fifth in response to a subpoena served by the

defense. Cavallo said on Thursday Fischer’s testimony was important

for the defense because she and Jane Doe “were joined in the hip” and

that the failure to disclose information about Fischer earlier was

“calculated timing on the part of the district attorney.”

“She made Jane Doe want to pursue this case,” he said. “The D.A.

knew about Fischer but sat on the case for almost a whole year

because they didn’t want their case to look bad. Fischer’s testimony

would have eliminated any remaining credibility Jane Doe has with the

jury.”

Deputy Dist. Atty. Dan Hess said he gave defense attorneys the

information as soon as he heard about it. The judge told Cavallo he

understood the defense attorney’s feelings about the issue but added

that he was going to deny the motion for mistrial based on Fischer

because “there’s no documentation to prove it to the court.”

MISTRIAL REQUEST NO. 2

The judge also denied the defense’s motion for mistrial based on

its argument that Hess did not tell them about Jane Doe’s injuries.

Defense attorneys said the first time they heard about any soreness

or bleeding was during her testimony in court.

Cavallo said Hess deliberately withheld the information from the

defense.

“It affected my ability to prepare for the cross-examination of

the witnesses,” he said. “The issue of injury was important because

it went into the heart of my cross-examination.”

Senior Deputy Dist. Atty. Brian Gurwitz told the judge Hess did

not intentionally withhold the information.

Briseno reprimanded Hess for not disclosing such important

information to the defense.

“When a D.A. walks into this court and asks 55 years for the

defendants, extreme, extreme care must be exercised,” Briseno told

Hess. But he added that Hess’ slip-up was not serious enough to

declare a mistrial.

BAD FAITH AND BREAKING AWAY

The defense had also filed a motion alleging that Hess asked

Vanessa Obmann, a former friend of Jane Doe’s, two questions in bad

faith. Hess, during his cross-examination, asked Obmann if Cavallo

offered her an internship in his office after the trial and also if

she had a “social relationship” with the attorney.

Obmann replied “no” to both questions and none of the defense

attorneys objected to Hess’ questions at the time.

On Thursday, the prosecution filed its response to the defense

motion stating that Hess had the basis to ask those questions. The

prosecution has an audiotape of Obmann’s hairdresser talking over the

phone to her inmate boyfriend telling him Obmann told her she went to

Cavallo’s office “all the time,” that she was going to do an

internship there, and “I was trying to hook him up with my mom, but

he wasn’t going to have that ‘cause he said he doesn’t date anybody

over 25.”

Nachreiner’s attorney, John Barnett, said he wants a different

jury for his client because the two questions posed about Cavallo

imply the defense is bribing their witnesses.

“From my client’s perspective, it’s enough to infect the jury,”

Barnett said. “It’s a suggestion of misconduct, and it affects my

client because these defendants are inextricably linked. It implies

that the attorneys are dirty in this case.”

Briseno said he would like to hear the testimony of the

hairdresser, the prosecution’s investigator and the contents of the

audiotape before ruling on the matter, but said he was inclined to

deny Barnett’s motion to get a separate jury and trial for his

client.

“To borrow a phrase from Mr. Cavallo, these defendants are joined

in the hip,” the judge quipped, referring to Cavallo’s statement

about Fischer and Jane Doe. “When you decided to march in front of

the jury together, you knew about the inherent risk.”

Briseno is expected to hear that testimony outside the jury’s

presence on Wednesday.

SEX TAPE ADMISSION

The judge also refused to admit into evidence two pornographic

tapes presented by the defense to show that unconsciousness or

intoxication can be faked during sex.

Barnett said he obtained two bits of film from a Canadian website

showing participants performing almost identical acts as shown on the

20-minute videotape of the alleged rape made by the defendants in

this case.

He said he could bring the actors to testify that they were

feigning unconsciousness and were doing it without alcohol or drugs.

Barnett said he believed it would contradict the testimony of GHB

expert Trinka Porrata, who said the girl seemed like she was under

the influence of a date-rape drug because she showed no response when

the objects were inserted into her.

QUESTIONING GREG HAIDL

The prosecution on Thursday also filed a motion to question Greg

Haidl about some statements he made to different people if he ever

chose to testify in his defense.

In his motion, Hess says Kevin Rogers, one of the residents of the

Newport Beach rental home where Haidl and Nachreiner accidentally

left the videotape, told prosecutors that Haidl told him all about

the July 5 incident.

The motion states that Haidl and Nachreiner told Rogers on July 6

that they were with a girl the night before at Haidl’s father’s house

in Newport Beach and got her drunk with Bombay gin, smoked a joint

with her and filmed her. It also says they told Rogers they put the

girl on a pool table and “got her with sticks” and a Snapple bottle.

“They described [to Rogers] that the girl was drunk, throwing up

throughout the night and that she was still passed out the next

morning when Spann drove her back to his house and left her passed

out on the curb,” the motion states.

Rogers had testified that he and his friends watched the tape.

Rogers said in his testimony that Haidl and Nachreiner showed up

later that evening frantically looking for the camcorder and tape

they had left behind. He testified that Haidl was visibly shaken.

But the motion filed Thursday has Rogers telling the prosecutor

that Haidl was crying and that he would do anything to get the

camcorder back and that he would even pay money to get it back.

“Haidl told Rogers and his roommates that if they found the tape,

they should smash it or destroy it or give it back to him, so it

‘won’t get taken any further,’” the motion states. According to the

motion, Rogers said Nachreiner was “upset, irritated and was

yelling.”

Deputy Dist. Atty. Susan Schroeder said Hess did not question

Rogers about Haidl’s statements or other reactions when he was on the

stand because it is against the law as it only related to Haidl and

Nachreiner and would hurt Spann, who is a co-defendant.

Testimony is expected to continue on Monday with the defense’s

video expert. The defense is also set to call Jane Doe’s parents on

Monday.

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

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