Bottoms Up!

Photo courtesy pool photographer:
Mark Boster, L.A. TimesBy the time the evidence portion of the Haidl gang-rape trial ended June 17, the case had been whittled down to a single question: was Jane Doe, the alleged victim, so intoxicated from beer, marijuana and eight ounces of Bombay Gin that she couldn't resist, or did she fake unconsciousness for a necrophilia-themed porn shot by the son of an Orange County Assistant Sheriff?

It's hard to imagine fair-minded jurors struggling for the answer. They need only to recall the last images Gregory Scott Haidl shot in his grainy 21-minute video. Haidl and co-defendants Kyle Nachreiner and Keith Spann laughed, danced and mugged for the camera while Doe, then 16 years old, lied face down and motionless in her own urine as a pool cue repeatedly penetrated her vagina and anus.

But the job of the defense is to obscure that simple picture. Before they rested, defense attorneys recalled two of their paid experts, UCLA neurologist Dr. H. Ronald Fisk and Dr. Marvin Corman, a colon and rectal surgeon. Fisk reiterated his belief that Doe never fell into a stupor, in part because Nachreiner spoke at her when he was trying to get fellatio at the outset of the film. Never mind that Doe didn't answer. Fisk was adamant: Nachreiner's one-way conversation “meant she's in control” of her mind. Such logic should delight future rapists who knock out girls with date-rape drugs, videotape their crimes and then carrying on feigned conversations with their victims.

Fisk's attempts to aid the defendants didn't end there. He said any movement by the girl signaled alertness, a claim which might surprise the millions of people who unknowingly toss and turn in their sleep each night. Then, in testimony sure to prompt laughter in fraternity houses across the country, Fisk declared that a highly intoxicated person “cannot bring a beer can up” to her mouth as Doe did early in the video.

Corman's testimony was even more astonishing. He opined that there was no chance the defendants caused any internal trauma to Doe even though they needed to spit on her genitals to help plunge a pool cue, Snapple bottle and a Tree Top Apple juice can into her vagina and anus. He blamed the bleeding and lacerations found in Doe's rectum three days after the gangbang on a Q-tip used by sexual assault nurses at a local hospital. Under friendly questioning by Haidl lawyer Joe Cavallo, Corman said, “In every instance the examples of trauma [to Doe] were caused by the examiner.”

Outside the presence of the jury, Superior Court Judge Francisco Briseno ordered Corman not to offer opinions beyond his area of expertise, but the New York doctor apparently isn't accustomed to following directions. He ignored Briseno. Playing mind reader, the surgeon told jurors that he knew the drunken defendants' states of mind while they used the foreign objects. “It was not done in a malicious way,” he blurted out, and then added that Doe's injuries would have been more severe if Doe hadn't silently given the defendants “permission” to penetrate her.

When it came his turn to cross examine Corman, prosecutor Dan Hess asked if it was possible that Doe didn't resist penetration because she was so intoxicated that she didn't know what the defendants were doing to her. “The question is so confusing to me that it can't be answerable,” Corman said.

Hess asked the same question a different way. The doctor replied, “That's an unintelligible question.”

Hess asked again: Wouldn't drugs and alcohol relax Doe's body? “I don't know how to answer your question as you pose it,” said Corman.

Hess: Wouldn't a high level of alcohol and drugs cause Doe to relax her sphincter muscle? “That's not true!” said an oddly angry Corman, who then paused. “I'm sorry. I just lost my train of thought. Can you repeat the question?”

For the fifth time, Hess asked his question. Corman–who was paid an undisclosed fee by Greg Haidl's father, wealthy Orange County Assistant Sheriff Don Haidl–finally answered. He said that alcohol and drugs would have “in no way affected” Doe.

If Corman and Fisk were pompous and prone to circular logic, Dr. Peter Fotinakes was refreshingly candid. Called by Hess, the prominent Orange County neurologist began playing the video and immediately observed Doe “starting to lose the ability to use her arms and legs . . . . gross and uncoordinated movements” and “she already has signs of significant intoxication.” Within the first minutes of the video, Fotinakes declared Doe unconscious. “See that her arms look very limp,” he told the jury. “Now watch as the head flops back and forth. . . . She's not supporting her own weight. . . . She's clearly unconscious and the boys are having trouble controlling [her] because she's so out of sorts,” the doctor said before noting that when the defendants don't hold her up, she falls face first and “strikes the couch.”

Fotinakes contradicted Fisk, who said Doe had been awake and sober. “This girl's under a rapid-acting, sedative-type hypnotic drug,” he testified. At the beginning of the video, Doe told the defendants, “Greg, I feel ill” and then, “I'm so fucked up.” “Fifteen minutes after she's seen talking,” Fotinakes told jurors, “she looks like a rag doll, perhaps caused by alcohol or alcohol and something else.”

In one of the most potent lines of the trial, Fotinakes turned to jurors and said Doe's condition was “somewhere between stupor and coma, but you don't have to be an expert [to see this]. Use your common sense.” Fisk, who had been watching the testimony, whispered in Cavallo's ear and then sat back in his seat deflated.

The task of discrediting Fotinakes fell largely to John Barnett, the most skillful of the defense team's nine lawyers. That required Barnett to turn his defense team's entire legal strategy on its head.

In their opening statements, the defense promised it would prove Doe had been an actress in the video, willingly and—this is key—consciously playing the role of an unconscious victim. The defense never offered evidence to support that claim. In fact, in one of the more embarrassing moments of the trial, Barnett tried to get the jury to believe that Doe had faked stupor during the alleged gang rape because she had described her behavior at another party as “like I was drunk.” The defense lawyer stressed that Doe had used “like” meaning, he argued, “acting.”

Barnett had apparently missed 20 years of popular culture during which the word “like” became a common vocal filler in the American vernacular. Even if Barnett didn't—or merely pretended he didn't–understand that fact, Doe did. “That's how I talk,” Doe said on the witness stand. “I say 'like' a lot.” Barnett struck a pose of disbelief for the jury. But days later, a parade of Doe's ex-girlfriends took the witness stand for the defense and inadvertently exposed Barnett's fiction: The girls loaded their sentences with the word, too.

It wouldn't be so easy for Barnett to twist Fotinakes' words. In more than an hour of cross examination, Barnett tried to get the neurologist to admit he'd left the jury with a “misimpression” that Doe had been in an alcohol/drug stupor. The defense lawyer asked the doctor if it was possible that the teenager hadn't been intoxicated or acting but rather had fallen into a self-induced coma “as a method of escaping” a “disruptive” home life.

Fotinakes–who had been ordered by Barnett just to answer “yes” or “no” to his questions–disagreed. Hess later allowed the doctor to explain: there was no reason for such psychogenic explanations when there was ready evidence on the video of alcohol consumption and intoxication.

Stymied, Barnett, now pacing and red-faced, switched back to the original defense theory. Three times in quick succession he declared the existence of an article titled “Pretending to be in a coma.” But Fotinakes wouldn't budge. “[She] looks like a person who is increasingly becoming intoxicated,” he said. “She would have had to have been very sophisticated to mimic this.”


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