The Motion for a Mistrial is Denied

UPDATED: Judge upholds Haidl gang-rape convictions, denies new trial; Cavallo fired

Courtesy pool photographerDressed in orange jail jumpsuits and shackled with chains, the three Haidl gang rapists—donning pale, blotchy and mostly expressionless faces—watched as Superior Court Judge Francisco Briseño rejected their demand for a new trial today.

Defendants Greg Haidl, 20, Keith Spann and Kyle Nachreiner, both 21, wanted Briseño to declare they'd been wronged by a jury's guilty verdicts in March. Each man faces a potential prison term of more than 12 years, punishment the defense has stalled until the fall to exhaust appeal avenues. The defendants are also exploring ways to transfer the punishment phase of the case to a more lenient juvenile court.

But after a colorful 80-minute hearing that pitted the judge in a legal tennis match with, at times, a rude defense lawyer, Briseño ruled, "The motion for a mistrial is denied."

The defendants said nothing. Haidl stared forward. Spann looked at the empty jury box. Nachreiner focused his eyes on his lap, threw his head back and sighed.

Their families and friends, who'd packed the stuffy courtroom, didn't hide their frustration and anger. Some moaned; others shook their heads and frowned. One middle-aged woman stomped her foot and mouthed an obscenity.

The real obscenity began at a July 2002 Newport Beach high school party where a 16-year-old girl was given beer, marijuana and a glass of 86-proof Bombay Gin. She passed out and the defendants filmed themselves raping and molesting her on a garage sofa and pool table. They repeatedly plunged a pool cue, Snapple bottle, lit cigarette and juice can into the victim's vagina and anus. Haidl later lost his video to cops. In California, it's a felony to have sex with a person who is incapacitated.

Faced with the graphic evidence of their crimes, the defendants nevertheless refused responsibility. They asserted police doctored the video; prosecutors fabricated their case for publicity; and that the victim faked unconsciousness in a plot to blackmail the wealthy Haidl family. At other times, defense lawyers claimed "the innocent little boys" merely complied with the girl's wish to be the star of a necrophilia-themed porno.

Now the defense has blamed Briseño, questioning the fairness of his jury instructions as well the rare limitations he put on defense tactics. In a lecturing tone, newly hired Haidl defense attorney Mark E. Overland of Los Angeles told Briseño he'd been sloppy, forgetful and legally misguided. For example, Overland said Sharon Mitchell, the star of 1,000 videos including Furburger, Gang Bang Girl and Both Ends Burning should have been allowed to testify that women sometimes fake intoxication and unconsciousness in adult films. Excluding Mitchell robbed the jury of her "general expertise" on porn, said Overland. He also said he was "curious" about why the judge blocked a thorough witness stand examination of the victim's motives and thoughts.

A heated volley ensued with Briseño reminding the defense that he'd given them wide latitude to question Doe but was right to limit their exploration of "inappropriate" or "irrelevant" subjects.

"I continue to believe today that I have an obligation to prevent . . . collateral matters from going to the jury," the judge said. "It is not Jane Doe's credibility at stake. Somebody decided to video their conduct. Somebody left the tape behind. Other people found the tape. That tape was played for the jury. . . . We now find ourselves in a very sad situation with three young people and a young girl."

Normally, this would be the time for defense lawyer Joseph G. Cavallo to rant, say, about how the girl should have been charged with raping the three defendants, but he and Pete Scalisi were fired by Haidl earlier this week. Cavallo and Scalisi lead the defense to a hung jury in the first trial. They'll be replaced by Al Stokke, a gifted attorney with personal connections to District Attorney Tony Rackauckas.

It was attorney John Barnett who spoke next for the defendants. Known nationally for his successful defense in the videotaped Rodney King beating case, Barnett tried to convince Briseño that he'd confused the jury with his instructions on aiding and abetting. He also likely wanted the judge to talk more, hoping he'd say something that might annoy the court of appeals, which is certain to get the case in coming weeks.

But Briseño is not only Orange County's most senior criminal judge. He's also arguably it's most mentally agile. As Barnett lobbed a series of legal complaints his way, Briseño calmly cited case law and testimony to the contrary. The judge stopped only to smile and compliment the defense lawyer on his skills. His answer, however, was "no." The jury's verdicts will stand, he said.


RSCOTTMOXLEY@OCWEEKLY.COM

 
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