The Bombshell That Wasnt
Courtesy pool photographer
Ygnacio Nanetti/The Orange
The Haidl gang-rape saga is nearly three years old, but last week the Los Angeles Times produced a fresh mystery for the public and jurors who defy the court's admonition to ignore media coverage of the case: Who is Joey Cervantes? What new evidence does he have against Jane Doe, the alleged victim? And why is the jury prevented from hearing his bombshell testimony?
The Cervantes mystery—which I will momentarily unravel as a fraud—began on March 3. On that day, the Times noted in a headline that the Haidl defense "seeks to get on the stand an ex-classmate who will be 'overwhelming.'" Reporter Claire Luna claimed the new evidence concerned "sexual interactions" between Doe and Cervantes. Luna then quoted the person who leaked the gist of the information, which had been sealed under California's rape shield law: Haidl lawyer Peter Scalisi.
Recognizing that a victim's sexual history with people other than the defendants isn't likely admissible and would therefore remain a secret, Scalisi made an intriguing assertion: Cervantes is "the kind of witness who can tip the scales heavily for the defense." Although Cervantes wasn't present during the July 6, 2002, alleged gang rape, his appearance in the courtroom would be "overwhelming" for the jury, the Haidl lawyer promised.
It wasn't the first time Scalisi tried his case in the media. During the first trial, which ended in a deadlock last June, the Haidl defense team gave the Times and an Orange County Register columnist copies of the girl's private medical and psychiatric records, as well as pages of unsubstantiated rumors designed to undermine her credibility. Each paper dutifully rushed anti-Doe stories into print. Afterward, Superior Court Judge Francisco Briseo sternly lectured the defense for its tactics, but the damage was already done.
So you can understand why the usually expressionless Scalisi entered the courtroom upbeat for the March 3 Cervantes hearing. With that morning's Times article, he'd already succeeded in making a public spectacle before Briseo could rule the information inadmissible. Scalisi placed his briefcase at the defense table, walked over to Luna and applauded her work. "The quote you used was just wonderful," he said. "Thank you."
But the Cervantes plot soon collapsed. Outside the presence of the jury, Briseo noted rape shield law prohibitions, chastised the Haidl defense for unnecessary attacks on Doe, suggested there's already ample testimony about the girl's promiscuity and spoke of the "compelling" videotaped evidence of the alleged crime. Despite vigorous arguments by the defense during a closed session, the judge agreed with prosecutors Chuck Middleton and Brian Gurwitz that Cervantes had nothing important for the jury.
End of story? No.
The next day, in her follow-up story, "Rape Trial Witness Blocked," Luna continued to advance the defense-inspired tale. "What the witness would have said about the rape accuser was not discussed in open court because its admissibility was being debated," she wrote. "But defense lawyers have said that the testimony of Joey Cervantes would have cast doubt on the prosecution's case against the three defendants." She then gave Scalisi additional space to influence jurors who might read her story. He said that if Cervantes had been allowed to testify, "The case, in essence, would be over."
Scalisi is, of course, full of shit. There's no bombshell evidence. The Cervantes mystery was a ruse.
Had she been paying attention, Luna would have known that on March 15, 2004, lead Haidl defense lawyer Joseph G. Cavallo filed an unsealed motion detailing Cervantes' uncorroborated claim: Doe once had sex with him "in the back seat of a car after only knowing him for 10 minutes." According to Cavallo's declaration, Doe asked Cervantes to be her boyfriend after the sex, and "the boy replied, 'What, are you kidding? You're a slut.'"
Assuming for argument's sake that the Cervantes story is true, it's neither a bombshell nor exculpatory for defendants Greg Haidl, Kyle Nachreiner and Keith Spann, the men who allegedly raped and molested Doe with a pool cue, Snapple bottle, juice can and lit cigarette. Nevertheless, the defense lawyers say knowledge of the Cervantes rumor helped the defendants reasonably conclude they could engage a heavily intoxicated Doe in a videotaped gangbang.
Weekly readers who have followed the case from the beginning must have been amused by Luna's phony mystery. Although the Times reporter claimed without attribution the defense team had "recently found" the proposed witness, we reported the Cervantes accusation a year ago—on March 26, 2004. Briseo was aware of the proposed testimony back then, too. As he did this time, the judge ruled before the first trial that the story was irrelevant and inadmissible.
The real mystery is why the Times blew this story. Even though they have dismissively called the gang-rape case a "tabloid" story, every day the newspaper sends two reporters—sometimes more—to the proceedings. You would think someone over at 1275 Sunflower might have questioned the suspicious re-emergence of Cervantes halfway through the second trial.
In an e-mail, Luna—who has written numerous impressive stories at the courthouse over the years—defended her story, admitting she was aware of the 2004 Cervantes tale but "didn't feel the need to rehash" it for her readers. Rehash? That's a puzzling assertion given that the Times has never disclosed the original tale.
Even more troubling was Luna's second defense: that she didn't mention Cervantes' 2004 statement in her recent stories because she believed his proposed current testimony would be "fundamentally different" than Cervantes' earlier version. This fact apparently didn't set off alarm bells for Luna. But prosecutor Middleton surely would have had fun with Cervantes on the witness stand.
Ironically, the Weekly's 2004 Cervantes article helped expose a loophole in California's rape shield law: defense lawyers could supply to the public and, thus potentially to jurors, accusations about a rape victim's sex life that would not be credible otherwise. After our article, the state Legislature enacted a new law, Assembly Bill 2829, to close the loophole. Allegations about the victim must now be filed under seal. A judge determines public access. Despite the new rule, Haidl's defense team nonetheless again proved resourceful with the help from friends in the media.
"The whole Joey Cervantes mystery was laughable," said a law-enforcement source familiar with the Haidl rape case. "The guy had nothing of substance to offer. I'm really surprised the Times fell for it. They should be embarrassed."
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