Sexcapades!

Haidl II defense lawyer is told to sit down and shut up. But his old playbook remains: blame the filthy, trashy victim

Courtesy pool photographer
Mark Boster/LA TimesThe first round in Haidl Gang Rape Trial II began on Feb. 7 fittingly—with Judge Francisco Briseño ordering defense attorney Joseph G. Cavallo to sit down and shut up.

The rebuke was a long time coming for Cavallo. In the first trial, he called the alleged victim a "slut" who should be charged with sexually assaulting the older, larger defendants. He once asked a prosecution witness if a pool cue is bigger than a penis.

On this day, Cavallo resorted to his old playbook—the one that earned him a hung jury in the first trial. He argued that Jane Doe, 16 years old and, according to police, unconscious at the time of the July 2002 incident, caused her own "disgusting, filthy, trashy" sexual encounter. "The boys did what they did . . . because of who Jane Doe was," Cavallo told jurors. "She had discovered sex and the power of sex."

Although Briseño is a conservative judge, he routinely gives defense lawyers wide latitude. But he has no sense of humor when his orders are repeatedly defied. Twice in the first 15 minutes of Cavallo's anticipated 150-minute opening statement, Briseño halted proceedings, removed the jury and scolded the lawyer for violating California's rape-shield law and making inappropriate arguments.

Cavallo looked pissed, then dumbfounded and finally frantic. As he sat at the defense table, reality sank in: he'd forfeited two precious hours to hail the defendants as "innocent little boys" and to depict Jane Doe as the perpetrator. You knew it was an embarrassing day when the defense lawyer couldn't find his way to the media's microphones on his way out of the courthouse.

On Feb. 8, with the jury absent, a stern Briseño schooled Cavallo for 45 minutes. Subject: rape-case law. As any law-school student knows, neither the victim's prior sexual activity nor her form of dress equals advanced consent. After the lecture, Cavallo's client, Greg Haidl, dressed in a faded-orange jail jump suit, looked up at his sad-faced lawyer. In an octave above a whisper, Cavallo told Briseño, "Thank you" and, "That was my mistake" and, "You have my cooperation."

But the judge appeared skeptical. He wondered out loud if Cavallo's over-the-line attack on Doe had a "calculated purpose" to improperly sway jurors. The defense lawyer assured him no, asked for a second chance to perform his opening statement and ended with a plea. "I simply ask the court to forgive me," said Cavallo, his head tilted to the left and arms outstretched. Briseño noted that he didn't want to "preclude a forceful presentation" by the defense and consented. Victorious, Cavallo sat down and sighed.

If little has changed on the defense side, there's a new face at the prosecutor's table. Chuck Middleton, second in command at the Orange County DA's office, is no lightweight in court. Like Cavallo, he views the case with intense passion. He speaks with indignation when he descibes how the defendants—Haidl, Kyle Nachreiner and Keith Spann—"twisted and pushed" a pool cue, Snapple bottle, juice can and lit cigarette into Doe's vagina and anus after "tossing her body" on a pool table during a Newport Beach party. "The video is not going to be pleasant to watch," he warned jurors.

The strength of Middleton's case is that videotape. On the night of the incident, the defendants gave Doe beer, marijuana and 8.5 ounces of pure Bombay Gin. Shortly thereafter, Doe said, "Greg, I feel ill." Less than a minute later, she resisted Haidl's attempt to disrobe her. Thirty seconds later, she said, "I'm so fucked-up." Haidl stopped filming for eight minutes. When he resumed, the girl had been stripped. She looked like a rag doll as the defendants laughed, danced and used her body. Hip-hop lyrics provided a soundtrack: "We like pussy, pussy, pussy!" Doe never said another word or even opened her eyes. According to forensic evidence, at some point during the night, she awoke to vomit profusely.

If there's a weakness in the prosecution's case, it's Doe. Middleton said the girl was "bright and outgoing" and an excellent student before the Haidl incident. But he also conceded that Doe wasn't a virgin, had rebelled against her parents and partied with illegal substances. He called her "an enigma."

Puzzling or not, California law is clear: it's illegal to have sex with a person incapable of giving consent throughout the act. The state's Supreme Court has upheld the statute in unmistakable language. "Could Jane Doe consent?" asked Middleton. "That's the key question in this case."

In the days before Haidl II began, a plea-bargain deal was in the works: Haidl, Nachreiner and Spann would admit guilt, accept three-year sentences and a lengthy probation. (If convicted on all counts, the defendants face a maximum 23 years in prison.) The district attorney's office refused comment, but sources said the deal was ready to go until Cavallo nixed it the day before trial began.

"At the end of the day, the real issue here is whether these three boys had a reasonable belief that Jane Doe would have said no," Cavallo told jurors. "That's it. That's the case. Forget about the smoke screens thrown at you by this prosecutor. You have to search into Jane Doe and her history. How did they [the defendants] come up with their thoughts that evening?"

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