By On the occasion of our 20th anniversary
By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
Courtesy pool photographer: Mark Bostera
/LA TimesOn May 20, Joseph G. Cavallo prepared Judge Francisco Briseño's courtroom for what the defense had billed as its "Perry Mason moment." Cavallo is one of nine lawyers for three teenagers charged with videotaping themselves gang raping an unconscious 16-year-old, along with a full-time audio-visual specialist who pushed aside the prosecutor's 27-inch televisions for his own setup: four high-tech television monitors in the jury box and a 50-inch Hitachi plasma screen—courtesy of wealthy Assistant Sheriff Don Haidl, whose son, Greg, is one of the defendants.
A natty Cavallo nodded to jurors, cleared his throat, jingled loose change in his pants pockets and stared at Jane Doe, the alleged victim, seated in the witness box.
The defense lawyer had waited impatiently for nearly two years to grill the girl and couldn't resist a cheap shot, calling her hair "dishwater-colored." Many in the courtroom's public-seating area consider Doe beautiful, articulate and, given her ordeal and her age, remarkably composed. Throughout the week, Cavallo worked aggressively to blur the line between an active sex life and gang rape; Doe refused to express shame or guilt about her sexual appetite. When he asked her if she'd had sex with two of the defendants before the night of the gang rape, she said without shame that she had.
At its best, it was a graphic illustration of a generational difference: the post-feminist Doe asserting her right to enjoy sex without agreeing to rape; the puritanical defense team confusing—deliberately, perhaps—all female desire with prostitution. The defense strategy is simple: convince at least one member of the jury the girl is a "slut" who tricked the "innocent boys" into sex acts at Haidl's Newport Beach house on July 6, 2002.
With Doe on the witness stand, Cavallo started softly, promising Doe in his distinct New Jersey accent, "I'm not here to embarrass you." Then, strutting in front of the jury, he asked the girl if she is familiar with "doggy-style" sex, if she knew what "road head" meant, if she liked to use the term "blowjob" and if "In the Butt" is her favorite rap song. (On an earlier day of testimony, he asked a female prosecution witness to consider whether a pool stick—like the one the defendants used repeatedly to penetrate Doe's vagina and rectum—has a smaller circumference than "the average male penis.")
Spectators groaned, but Cavallo wasn't done. He wanted the jury to see a video of Doe having consensual sex with defendant Keith Spann a week before the gangbang inside Haidl's garage. Under direct examination by prosecutor Dan Hess, the girl acknowledged the earlier encounter was consensual, but Doe said she told Spann to stop filming as soon as she saw the camera. Cavallo convinced Briseño to play the tape for the jury by claiming it would "prove" Doe had lied, that she never said a word to Spann during the sex.
What happened next was grotesque theater. The bailiff dimmed the courtroom lights, the tape started, and—even though the jury was supposed to be listening to see if Doe talked to Spann—Cavallo constantly paused the tape so that the girl's naked image was frozen on the huge plasma TV screen and monitors. After the first images were displayed for the jury, Cavallo asked the obvious: "You were on top?"
"Yes," said Doe.
Ten seconds later, Cavallo paused the tape again, pointed to the screen and asked Doe again to identify herself. He restarted the video and nine seconds later paused yet again to ask if she noticed the intercourse was being filmed from a slightly different angle. Cavallo paused or rewound the tape 14 times and asked the girl questions such as "Who is that on all fours on the bed?" and "Did you notice the penis fell out of the vagina? Is that your hand that puts it back in?"
After a scene of Spann's penis penetrating Doe's vagina, Cavallo asked his assistant, "Is there a way you can do it in slow motion?" Then the defense lawyer asked Doe, "Did you see any testicles?"
She replied, "I can't tell," and Cavallo ordered the scene replayed. "There!" he said. "Do you see his testicles?"
The girl, who had until this point withstood more than four hours of cross examination by Cavallo, began tearing. The bailiff turned the courtroom lights back on, and Cavallo gripped the podium in front of the jury. Back to the alleged reason for airing the tape, he asked, "Did you hear you talk [to Spann]?"
"No," said the girl who wiped away tears as the three defendants chatted briefly and then looked at the girl triumphantly.
But Haidl, Spann and Kyle Nachreiner, the third defendant, may have celebrated early. It may have seemed dramatic, but the demonstration hadn't proven anything—except that Cavallo hoped jurors wouldn't notice that six minutes were missing. Spann shot his first filmed image at 4:30 a.m. and his last at 4:37 a.m. But according to the video's data code, he captured only about 60 seconds of the seven-minute episode; at least that's all Cavallo showed the jury. During the remaining six minutes of sex that was not filmed, Doe could have easily voiced her objection.