Photos courtesy pool photographer:
Mark Boster, L.A. TimesAt the May 3 start of the Orange County trial of three teenage boys accused of gang-raping an unconscious minor, a defense attorney made a startling assertion: the alleged victim enticed the "sweet," "caring," "kind" defendants into a sexual frenzy and then, while faking unconsciousness, sexually assaulted them. At one point, the attorney, an incredulous Joseph G. Cavallo, blurted out to the jury, "Why isn't she being charged with this crime?"
"She knew how to use her body. She knew how to use sex," said Cavallo, one of at least nine defense lawyers (not including the publicist, a jury consultant and an army of private investigators) representing Gregory Scott Haidl, 18; Kyle Joseph Nachreiner, 19; and Keith James Spann, 19. They've pleaded not guilty to 24 felony counts for the July 2002 Newport Beach incident. Referring to a video they made of the incident, Cavallo said, "The boys had every reason to believe she consented: she orchestrated it."
It was just one of the defense's many remarkable claims after apparently horrified jurors inspected prosecution-supplied photographs of the late night gang bang. The images (which I'll describe momentarily) are so disturbing that the defense team wasted no time calling the filmed episode repugnant, but blamed it solely on the 16-year-old girl known in court only as Jane Doe.
"The things she wanted done were done," said John Barnett, counsel for Nachreiner. "It's disgusting and it's awful. Who would consent to this? Jane Doe. Nobody is going to argue this isn't morally outrageous. It is, but it was a choice. . . . This is exactly what she wanted. They believed her when she says she wanted to be a porn star."
Peter Morreale, who represents Spann, claimed that Doe rarely wore panties and flirted, and that his client "was [then] 17 years old and tripping over himself" to have "consensual sex" with her. On the night of the alleged crime, Doe first rejected their invitation to come to their party.
"They were bummed that they're not going to get any!" said Morreale. Later, Doe changed her mind and drove to Newport Beach. When she called to say she'd arrive soon the boys "high-fived" each other. He claims the girl promised Nachreiner that she wanted a gang bang. "I'm not advocating this girl wanted to be the next Marilyn Chambers or a deep-throat expert, but that was her mentality," said Morreale.
In just his opening statement, a pacing, finger-pointing Cavallo told the jury that the girl—next to the tape itself, the prosecution's star witness--is "a nut," "a pathological liar," "a cheater," an "out-of-control girl," "the aggressor," a wanna-be "porn star," "a troubled young lady," "a tease--that's what she is!" "a mess," a "master manipulator," a "little opportunist," "a compulsive liar," "a cheat--that's what she is" and a "callous" drug addict and alcoholic who trimmed her pubic hair, bragged about liking group sex and once drank a beer in a car.
"Why was her vagina and anus completely shaved?" Cavallo asked jurors. "How many teenagers have a shaved vagina and anus? I don't know, but I can think of a reason. Sex! She's a sexual person!"
During preliminary hearings, Cavallo called Doe a "slut"; on this day, he stayed away from the word. However, he told the jury several times that everyone, including the girl's parents, "knows what she is." Talk outside the courtroom was less coy. In the hallway just outside, a defense consultant openly and repeatedly called Jane Doe "a fucking whore."
On the second day of the trial, two boys connected to Nachreiner were reprimanded for mad-dogging Lindsay Picou, a key prosecution witness, before she could testify.
Defense frustration is understandable. It's illegal in California to have sex with someone either unconscious or so intoxicated that they cannot resist or consent. Exhibit A for veteran Deputy District Attorney Dan Hess is the 21-minute video Haidl shot of the gang-bang with the unconscious girl. He then saved the tape as a souvenir for his high school friends.
Haidl, the son of a wealthy Orange County assistant sheriff, isn't bright. He lost the video at a Newport beach rental. The people who found it thought the boys had had intercourse with a corpse. One of them, Fontana resident Picou, 20, testified that she "felt ill" after seeing the tape and decided to turn it over to police. Investigators eventually found Jane Doe, who said she recalled passing out, waking up and vomiting but none of the sex.
The opening of the trial was delayed more than 30 minutes when the defense team requested an in-chambers meeting with Superior Court Judge Francisco Briseno and Hess. It's well-known around the courthouse that the defense would offer guilty pleas in exchange for maximum nine-month sentences. In Briseno's chambers, they pressed the judge to make an offer. He refused. They pressed Hess, who suggested 27-year sentences. The defense gave up frustrated.
On Day 2, in a hushed courtroom, the jury of eight men and four women watched the infamous tape on three television monitors carefully angled to thwart public viewing. It was an eerie setting. Those of us in the public seating section could hear only the audio of the incident, but we could look into the strained faces of clearly troubled jurors.
