Inexpert Witness

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

Photo courtesy pool photographer:
Mark Boster, L.A. TimesDuring the first four days of People v. Haidl et al., Prosecutor Dan Hess methodically built his case against three teenagers who videotaped themselves allegedly gang raping and molesting an unconscious 16-year-old girl on a garage pool table. He'd presented witnesses who accidentally found the tape and were so horrified by what they saw that they turned it over to police. He interviewed two nurses and an acclaimed sexual-assault doctor who provided stomach-churning details about bruising and lacerations inside the girl's body. With the help of Newport Beach detective John Hougan, Hess documented the tape's chain of custody—who owned it and when they owned it--and events leading to the arrests of Greg Haidl, 18; Keith Spann and Kyle Nachreiner, both 19. He thrice played the pornographic 21-minute videotape of the July 2002 incident for jurors. He even had a rubber-gloved DA investigator display the pool stick that defendants used to repeatedly penetrate the girl's vagina and anus.

But Day 5 was, as a prosecution source later conceded, "a disaster." Hess made a serious tactical blunder that left note-taking jurors puzzled and defense lawyers smiling. The blunder had a name: David Dustin, owner of South Coast Studios.

In anticipation of expected defense challenges to the tape's authenticity, Hess called on Dustin to convince the jury that the tape in the courtroom is the one Haidl originally shot and that it has not been altered to delete exculpatory scenes. Defense lawyers have repeatedly noted that there are 21 frames of black in the middle of Haidl's film and 21 frames of fluttering at the end. They've argued that the anomalies prove the tape has been altered by law enforcement officers conspiring against Haidl, even though his father is a powerful assistant sheriff of Orange County.

Dustin is a tall, feisty fellow, but he's no expert. He films "life events"—weddings, commercials and corporate meetings. He received his training at Golden West Community College and has worked in the digital field for a mere seven years. Until this case, he'd never testified in court.

Under questioning by Hess, Dustin opined that the tape is an original because he could not find "any artifacts"--degradation in the film quality or loss of pixels, he said—that should be present in a copy. His answer was unambiguous. "There were no artifacts that I would normally look for on a tape copy," Dustin said.

Veteran trial lawyer John Barnett, who has successfully defended cops captured on video beating suspects, walked quickly to the podium. Having sparred with Barnett during preliminary hearings, Dustin looked worried. He slowly leaned forward in the witness chair, cocked his head to the side and sighed. In less than 60 seconds, Barnett destroyed his testimony and thus the prosecution's attempt to block questions about the tape's authenticity.

Here's the exchange:

Barnett: The artifacts that you are looking at to determine whether you have a copy or not really doesn't tell you whether you have a copy does it?

Dustin: It's a lot of evidence pointing to whether it is a copy or not.

Barnett: The absence of those artifacts does not tell you that you have an original?

Dustin: No, it does not.

Stunned reporters looked at each other. Dustin had contradicted himself on the central point of his testimony. One of the defendant's parents said, "I guess he wasn't much of an expert." Several jurors squinted as if they had headaches.

Barnett wasn't done. He asked Dustin if he specialized in discovering surreptitious alterations to digital tape. The defeated-looking Lake Forest shop owner paused and said, "No, I edit video."

Barnett: So what we're talking about is something sort of outside of the area that you generally working in, correct?

Dustin: Yes, slightly.

Barnett: In fact, you've never been asked to do this [determine if a tape is an original or copy] before, have you?

Dustin: No, I haven't.

By discrediting Dustin, Barnett rejuvenated a struggling defense, but he did not prove the tape was edited to frame the defendants. Hess has already established that the 21 frames of black on the tape likely occurred when two police officers originally viewed the film in their patrol car and accidentally pressed the record button for a moment. Bolstering this view is the fact that a police dispatcher can be heard on the blacked out section calling "43," a code for one of the officers. As for the fluttering, neither side has presented a definitive answer.

Because justice in this case likely hinges on the video, it's no secret that the defense plans a more extensive attack on the tape when it's their turn to present evidence. What do they think the prosecutors overlooked? Although intoxicated on the night of the alleged rape, Greg Haidl claims his film is missing at least one scene. He says he recalls the girl giving oral consent on camera before the gang bang. Spann says the girl talked to him coherently after the filming stopped.

The defense also intends to drop a bombshell by using the footage to prove the girl was never unconscious. They will show jurors at least two spots on the film when the alleged victim moved her body: once early in the sex, her hand swung up to her head and then later, after she'd been tossed on the pool table, her hip moved.

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."

rscottmoxley@ocweekly.com

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