Two Plus Two Is Five

UPDATED: Expert witness says several scenes in rape video prove Jane Doe was enjoying the sex, could do math

Courtesy: Pool photographer Mark Boster/LA TimesIn Orange County's high-profile Haidl trial, conventional wisdom says Joe Cavallo is a liability. Cavallo represents the three defendants accused of videotaping themselves raping and molesting an unconscious 16-year-old. They point to the fact that Cavallo described prosecutor Dan Hess as "sleazy," but himself asked a female witness if a penis is bigger than a pool cue—implying that, for most women, one would be as good as another—and insisted that Jane Doe, the alleged victim, was a "slut" who got what she deserved. Twice outside the presence of the jury, Superior Court Judge Francisco Briseño has slammed Cavallo's tactics.

But in a case that has produced more twists than a daytime soap, it's possible the thug may become the hero—at least to Greg Haidl, Keith Spann, Kyle Nachreiner and their worried families. Some court observers believe the defense is poised to win the case as it enters its final week of testimony. If there are acquittals, the roots of victory can be traced back to Cavallo's clever work on June 8.

Using the testimony of UCLA neurologist Dr. H. Ronald Fisk, Cavallo seemingly rocked the centerpiece of the prosecution's case: that after the three defendants gave Doe alcohol and illegal drugs at a late-night July 2002 party in Newport Beach, Doe was either unconscious or so intoxicated that she could not resist or consent to an orgy.

Fisk said there are four levels of consciousness: alertness, lethargic, stupor and coma. In his opinion, Doe never fell below lethargic and "had an almost full range of [mental and physical] capabilities, but just slower." Fisk said someone in a stupor "appears to be totally unaware and non-responsive."

Abandoning his usual hamfistedness, Cavallo was suddenly deft, guiding Fisk through Exhibit X, the defense team's redacted version of Haidl's 21-minute porno. According to the doctor, the exhibit contains 11 brief scenes in which Doe was "doing things that reflect a level of alertness." Jurors looked to Cavallo, who stood beside the Haidl-supplied 50-inch plasma television with a pointer while Fisk described Doe's movements:

At 1:40:16 a.m. and again at 1:40:27 on the tape, Doe lifted her head while Spann entered her from behind; at 1:45:19 and 1:45:46, Doe "brushed her hair" out of her face with her hands; at 1:46:09, she lifted her hands to the sides of Spann; at 1:46:22, she made a "controlled movement" of her arms; at 1:56:09, she lifted her hands to her face and then touched her stomach; at 2:04:36, she "bent her right leg in defiance of gravity"; at 2:04:53 and 2:06:09, Doe, who was positioned on a pool table, again adjusted her leg and slid her pelvis toward the defendants as they inserted a pool cue into her vagina; and at 2:07:58, near the end of the film, she "started to turn" her body.

With thin white hair combed over his scalp, Fisk resembled the loony inventor in Michael J. Fox's Back to the Future. Nonetheless, the doctor (whom the defense paid a $3,500 fee, plus $750 per hour) riveted the jury. Many jurors scribbled in their notebooks after Cavallo repeatedly asked Fisk the same question, eliciting different forms of the same response. "Clearly, she is not in a stupor," Fisk said, looking directly at jurors. "She appears to be at a lower level of consciousness than she [really] is."

Silence filled the courtroom. For the first time, the defense had an expert to support its contention that Doe may have faked unconsciousness.

It's impossible to know what jurors are thinking, but two female jurors whom the defense team has feared were hostile to their case looked at each other, raised their eyebrows and slightly shook their heads sideways. A reporter covering the trial was clearer: "That's reasonable doubt," the reporter said. "This case should be over."

Outside in the hallway during a break, a giddy Cavallo took Fisk to the courthouse cafeteria for refreshments.

It's easy to underestimate Hess, the tall, soft-spoken prosecutor. Cavallo and his colleagues, Peter Scalisi and John Barnett, routinely talk over one another in the course of windy speeches accentuated with finger-jabbing at the deputy DA and Newport Beach Detective John Hougan, the man who headed the rape investigation. Hess always awaits Briseño's permission to speak and is almost invariably polite.

But the 14-year veteran knew the importance of Fisk's testimony: if jurors believe Doe was alert during the gangbang, his case of rape by intoxication is doomed.

Like Cavallo, Hess abandoned his usual approach when he got the neurologist for cross-examination.

It's not clear jurors were paying attention; some yawned and one looked over his shoulder to a wall clock as if ready for lunch. If jurors missed the cross-examination, here's the summary: Hess ripped holes in Fisk's testimony. An hour later, the doctor had reluctantly admitted he'd consulted with the defense on what language to use to describe Doe's state of mind; that that language "exactly matched" a jury instruction that will aid the defense; that he'd ignored most of the scenes in the video that may have shown that Doe was knocked-out and unresponsive to pain; that it's possible Doe could have fallen in and out of stupor because of the beer, marijuana and eight-ounce glass of Bombay Gin she'd been given by the defendants; that drug and alcohol intoxication are the most common causes of a stupor; and that the redacted scenes used for Exhibit X could have been taken out of context. "I was careful in the scenes I've included," conceded Fisk, whose medical testimony helped free Bill Clinton Whitewater-scandal associate Susan McDougal early from prison in 1998.

Despite his admissions, the doctor refused to abandon his opinion that Doe's occasional movements proved she was conscious. Hess tried a different tack. He asked why, for example, the girl didn't flinch when the defendants violently slapped her buttocks; shoved a pool cue in her vagina and rectum; and twisted, pulled and yanked on her nipples. Fisk said he "can't tell" if the slapping, shoving, twisting and pulling caused pain, "and that's why I didn't include that" on Exhibit X. Hess noted how far the breast had been "stretched upward," but Fisk said he guessed it was painless. Hess asked Fisk to assume for the moment that the nipple play was painful. If so, Hess asked, would Doe's failure to respond indicate stupor. Fisk seemed annoyed and said, "Correct."

Hess wasn't done. He cleverly prompted Fisk to remind jurors of his pro-defense bias by asking if all the alcohol and drugs given to Doe would have affected her ability to respond. All Fisk would say was, "It could."

But the case hinges on whether Doe was so intoxicated that she couldn't resist. Earlier with Cavallo, Fisk dramatically claimed that the girl had been so "close" to alert that she would have been able to solve math problems during the gangbang. It was memorable evidence for jurors if true. So Hess reminded him of a graphic scene, the one in which Doe was the focal point of the defendant's sexual force but as limp and unresponsive as a rag doll.

"At that point, is she able to do math?" an incredulous Hess asked. Fisk shrugged his shoulders. "The answer is obviously difficult," he said. "Maybe not."

For a blow-by-blow description of Exhibit X, see this story at ocweekly.com.

RSCOTTMOXLEY@OCWEEKLY.COM.

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