Cavallo wants to know
Photos courtesy pool photographer:
Mark Boster, L.A. TimesOn May 20, Joseph G. Cavallo--one of the nine lawyers for three teenagers charged with videotaping themselves gang rape an unconscious 16-year-old--prepared Judge Francisco Briseno's courtroom for what the defense had billed as its "Perry Mason moment." A full-time audio-visual specialist for the defense 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 "dish water 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 that 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 by promising 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 "blow job," and if "In the butt" is her favorite rap song. (On an earlier day of testimony, he asked a female proscecution 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.")
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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 gang bang inside Haidl's garage. Under direct examination by prosecutor Dan Hess, the girl acknowledged the earlier encounter was consensual, but said she told Spann to stop filming as soon as she saw the camera. Cavallo convinced Judge Briseno 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, pointed to the screen and asked Doe to again identify herself. He restarted the video and nine seconds later he paused to asked 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 like, "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, shouldn't celebrate 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 is all that Cavallo showed the jury. During the remaining six minutes of sex that was not filmed Doe could have easily voiced her objection.
Cavallo wasn't through humiliating her. He next demanded that the girl leave the witness stand, walk across the room to Haidl's plasma screen, and look at another image of herself. This one showed her at the beginning of the gang bang video—a tape she had never seen until then.
"Is that you?" he asked.
"I'm not saying it's not," she said as tears poured from her face. Seemingly sympathetic jurors watched. A recess was ordered. In the hallway, two members of the defense called Doe's weeping "crocodile tears" and theorized that Hess had coached her. In a PR move, Cavallo colleague Peter Scalisi told Tori Richards, the defense team's publicist, to distribute the girl's medical and psychiatric records to the press, a move that Judge Briseno would later angrily rebuke.
The trial resumed after a 15-minute break and for the next two hours Doe endured questions like: What did you think about when you sexually rode on top of a man? Did sex "feel good?" On an occasion other than the gang bang, did you orally copulate a guy after intercourse? Have you demanded anal sex? Didn't you have "a reputation as a partier?" Did you close your eyes during sex? What "sort of outfit" did you wear as a Coco's hostess? Were you "happy about going to Newport Beach to be with these boys?" Didn't you think "it would be cool to be with these boys?" Didn't you "feverishly" want to be featured in a videotaped gang bang?
It wasn't all a waste of time for the defense. Cavallo got Doe to concede that she had often lied to her parents and even to police during the initial crime investigation. But the lies were minor. For example, she told detectives that she had been "tipsy" the day before the alleged crime when, in fact, she now admits she had been intoxicated.
Cavallo also seemed to think he scored a point when he zeroed in on Doe's recent use of the legally explosive word "unconscious," a word on which the entire case may hinge: under California law, it is illegal to have sex with a person who cannot resist. Cavallo told jurors that the DA's office had ordered Doe to use the word, implying that she had never described herself in any way that might be construed as "unconscious." In fact, police reports show that Doe told detectives she was "knocked out" after the defendants gave her beer, marijuana and a foul-tasting mixed drink, and that she had no memory of the sex. You and I might call that "unconscious." Cavallo, who must know better, tried to argue that it was evidence that the girl can't be trusted.
Cavallo further sought to discredit the girl by claiming there was a major inconsistency about when she arrived at Haidl's house. He told the jury that Doe first said she arrived "after 12:36 a.m." but later changed the time to "at 12:30 a.m." The point--argued for at least 20 minutes--is inane when you know that Cavallo misrepresented her testimony. In truth, the girl said she arrived "at about 12:30."
By the end of the day, jurors and Judge Briseno looked exhausted. Doe left the courtroom through a back exit where her parents waited. Cavallo smiled as he packed his briefcase. A prosecution source facetiously confided, "We should send a limo to Cavallo's house every morning to make sure he makes it to court."
But Cavallo believed he'd scored a victory. He raced outside to hold a press conference. None of the other defense lawyers had left the courthouse when Cavallo began talking in front of a cluster of television cameras and radio station microphones.
The defense lawyer, who is a business partner with Don Haidl, said he had "absolutely no intention ever" of making the alleged rape victim uncomfortable. "We're all professionals here," said Cavallo. Within a minute, however, he summed up the day: "I think I showed she's a manipulative little liar."
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