Judge denies defense motions

Deepa Bharath

A Superior Court Judge on Thursday denied a defense motion for a

mistrial as well as another motion to reduce charges in a

high-profile rape trial, which is drawing to a close.

Greg Haidl, son of Orange County Assistant Sheriff Don Haidl, Kyle

Nachreiner and Keith Spann are accused of raping an unconscious

16-year-old girl and sexually assaulting her with various objects in

the assistant sheriff’s Corona del Mar home.

Judge Francisco Briseno said on Thursday that the defense was not

entitled to a mistrial based on its allegation that Deputy Dist.

Atty. Dan Hess did not disclose in time to defense attorneys the

alleged victim’s statements that she felt sore after the incident and

that she experienced bleeding.

“It’s an error,” Briseno said. “But does it warrant a mistrial? I

don’t think so.”

The judge said he believed that despite Hess’ late disclosure of

the information, defense attorneys were able to conduct a thorough

cross-examination of the alleged victim, known only as Jane Doe, who

was on the stand for almost four days of questioning.

Briseno also denied a motion by defense to dismiss charges for

lack of evidence, a tactic routinely used by the defense in felony

cases. The judge then declined to reduce the charges against the

defendants based on the argument that the teenagers did not force the

girl to perform the sexual acts.

Haidl’s attorney Joseph Cavallo argued that if Jane Doe was in

fact unconscious as prosecutors say, then there was no need for the

boys to coerce her because “you can’t take away the will of someone

who is unconscious.”

Nachreiner’s attorney John Barnett agreed.

“For force to have meaning, the complaining witness must be aware

of it,” he said. “[Jane Doe] does not say, ‘I did not consent.’ She

does not say, ‘I was forced to do it.’ She just says, ‘I don’t know

what happened.’”

But the attorneys’ arguments did not convince Briseno who refused

to change the charges. If he had agreed with the defense, the judge

would have reduced the number of felony counts against the defendants

from 24 to 19.

Barnett also argued about another issue involving Hess’ questions

to one of the defense’s witnesses, Vanessa Obmann, a former friend of

Jane Doe. Obmann had testified that Jane Doe, one of her best friends

at the time, often lied to her parents and that after the incident,

she told friends that she didn’t believe that the boys forced her to

do anything she would not have done.

Hess asked Obmann two questions during his cross-examination: if

Cavallo had offered an internship to Obmann in his law firm and if

the two had a “social relationship.”

The prosecution has provided the court with a basis for that line

of questioning -- an audio tape containing a conversation between

Obmann’s hairdresser Jessica Heidt and her incarcerated boyfriend

about the internship Cavallo offered to Obmann. Heidt also tells her

boyfriend during that conversation that Obmann had tried to set up a

date between her mother and Cavallo, but that the attorney told

Obmann that he doesn’t date anyone over 25.

Barnett has filed a motion asking for a separate jury for his

client saying that the implication of a “dirty defense attorney” has

tainted the present jury and will hurt Nachreiner’s chances with

jurors.

The conduct of one attorney in a defense team involving three

defendants will end up hurting all defendants, Barnett said.

“This dirt spills on to everyone else,” he said. “In this case,

which is a sex case, the jury is left to speculate about the

relationship between a defense attorney and a young witness.”

Hess’ questions were improper, Barnett argued.

“You can’t attack a defense lawyer -- not because they’re

privileged, but because their clients suffer as a result,” he said.

“It doesn’t matter what happened [between Cavallo and Obmann] because

these kids had nothing to do with it.”

After Barnett’s heated and animated arguments resonated across the

large, silent courtroom, the judge said in a soft voice: “I disagree

with you.”

Briseno said he would expect any good attorney to jump on evidence

that would impeach a witness.

Senior Deputy Dist. Atty. Brian Gurwitz responded to Barnett’s

arguments saying that the defense attorney was “exaggerating the

nature of evidence presented.” He said the purpose of the evidence

was to show that Obmann was biased.

“There was no suggestion of a bribe or a quid pro quo,” Gurwitz

said.

Briseno is scheduled to hear from Heidt today and make a decision

on Barnett’s motion. Testimony will continue 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.