Inexpert Witness

Posted: May 14, 2004: On key question of video authenticity, prosecution stumbles

Deputy District Attorney Susan Kang Schroeder believes the defense argument will backfire with the jury. "Yes, there are times when her legs and arms are flopping around, but that is only because of the force of what the defendants are doing to her," said Schroeder. "She has no control over her body. Any moron can see that she is out cold. She shows no reaction even when they slap and pinch her or shove the pool cue or Snapple bottle into her. The DA's office isn't making this up. All of the judges who have watched the video ruled that she was obviously unconscious."

Try as the defense does to establish that the girl was not unconscious, it may not matter when the jury gets instructions from Judge Francisco Briseno and deliberates. Prosecutors, who suspect the date-rape drug GHB was used, insist she was knocked out. But they don't have to prove it. It's illegal to have sex in California with someone who is either unconscious or so intoxicated that they cannot resist or consent. The felony charges in this case allege that the defendants committed multiple counts of rape by intoxication, a less difficult burden on the DA.

Even the defense admits that Nachreiner, Haidl and Spann gave the girl beers, marijuana and a glass full of 86-proof Bombay Gin. Before the sex, the girl announced, "I'm so fucked up!" Sometime after the videotaped encounter, she vomited all over herself and was still, by all accounts, extremely groggy almost 10 hours later.

On May 17, Hess will call to the witness stand ex-LAPD narcotics detective Trinka Porrata. Unlike Dustin, Porrata is one of the world's leading experts in her field: GHB use. She has viewed the tape and is expected to say that the girl's condition is consistent with a GHB overdose. The following day, Jane Doe--the alleged victim--and her father will testify.

Expect a brutal cross-examination by the defense. They've already put a female ejaculation specialist on their witness list. Defense lawyers contemplate arguing that it wasn't urine that poured out of the girl when the defendants repeatedly penetrated her with the pool stick. It was evidence of her excitement, the defense will claim.

"The DA and the media have made the video to be much, much worse that it actually is," said a member of the defense team. "There was no brutality and we know she was awake and enjoying the sex. I'm betting that some of the jurors realize that too."

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