“Haidl Three” Appeal Centers on Consent to Sicko Gang Bang

The crux of the appeal the attorney for convicted gang rapist Gregory Haidl laid out before state appellate justices in Santa Ana this morning involved the consent of his victim.

But it was not whether 16-year-old Jane Doe had said to Haidl, “Yeah, go ahead and knock me out with gin, lay my unconscious body on a pool table and garage sofa in your father's swank Corona del Mar home and shove a Snapple bottle, a lit cigarette, an apple-juice can, a pool stick and your, Keith Spann's and Kyle Nachreiner's dicks and digits into my ass and vagina.” No, the high-powered Santa Monica constitutional lawyer hired by Haidl's well-heeled dad, former Orange County assistant sheriff Don Haidl, wanted justices to believe that last-minute evidence the trial judge barred from being entered could have convinced jurors that the young men were led to believe they had her consent.
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As mentioned in R. Scott Moxley's most recent Moxley Confidential column, the “Haidl Three,” as the three were known, shot video of themselves doing the above recounted dirty deeds to Doe at a wild high-school party in 2002, admitted their guilt in hopes of lenient sentences more than three years ago and were released early from six-year sentences 14 months ago. But instead of slithering into obscurity, they've gone back to court–and the hot glare of the media–because one penalty each received sticks for life: the tag that they are sex offender.

After all, who wants to go door-to-door informing your neighbors that you are a sex offender and, when pressed for details, have to say that you were convicted of knocking out a 16-year-old girl with gin, sprawling her unconscious body on a pool table and
garage sofa and shoving a
Snapple bottle, a lit cigarette, an apple-juice can, a pool stick and
your and your two friends dicks and digits into her ass and vagina while shooting video of it? That's sure to elicit uncomfortable stares at the Fourth of July block party.

And so, all three convicted felons were represented by attorneys in the California Court of Appeals to officially seek to have their previous admissions of guilt tossed out.

Dennis Fischer, representing Haidl, told the three appellate justices that his case came down to a federal constitutional issue: whether California's rape shield law has any limits under the U.S. Constitution.

The state law was cited by Superior Court Judge Francisco Briseño when he barred the testimony of last-minute defense witness Joey Cervantes, who was supposedly going to tell jurors about a lewd, consentual sexual
experience with Doe the night before the Corona del Mar party that was witnessed by Spann and Haidl. Had the jury heard that, Fischer claimed, they might have believed the Haidl Three thought they had Doe's consent.

Fischer threw out the titles of several court cases that he said back up his contention, including a U.S. Supreme Court decision that came down two months after the defendants' convictions that cut eerily close to the proceedings in Santa Ana. Indeed, had the Supremes made their ruling before the convictions, Briseño would have had to allow the Cervantes testimony, according to Fischer. “Surely it would have changed the chemistry of the proceedings, and the judge would have ruled differently,” he said.[

Associate Justice Richard M. Aronson–who is deciding the case alongside Associate Justice Raymond J. Ikola and Presiding Justice David G. Sills–asked the most questions during the appeal hearing, and he openly challenged Fischer's interpretation of some of the cases the attorney was citing and their relevance to the matter at hand. Aronson at one point accused Fischer of trying to win looser interpretations for his client based on decisions involving prostitutes who claimed they were raped.

As Aronson and Fischer batted around the connections between the crime, the Cervantes encounter and a barely discussed incident involving Doe from two weeks ago, the attorney said, without a hint of sarcasm, “I don't want to besmirch her or say anything about her character”–even though his client's earlier defense and entire appeal is built on besmirching Doe's character.

Under Aronson's questioning, Fischer conceded that Doe's level of sobriety–wide awake vs. passed out–was different at the time of her liaison with Cervantes when compared with the Haidl Three gang bang. The attorney also had a back-and-forth with Aronson involving Doe having seen Haidl's graphic 20-minute homemade DVD of the tryst after a first hung-jury trial, at which time she said she would not have allowed the
three to do the things depicted to her.

Fischer concluded his 16-minute
presentation by saying federal constitutional law has trumped rape
shield laws similar to California's in other states involving “uglier
crimes” and that there have been “reversals down the line.”

Spann's attorney, Stephen Lathrop, said his client's conviction should be overturned because he received improper counsel during the jury trial. Attorney Peter Morreale “abandoned” his client Spann during key jury deliberations and judicial instruction negotiations, Lathrop alleged.

Nachreiner's attorney, Brett Duxbury, replayed the DVD arguments, saying the existence of the video footage could be construed as evidence Doe consented to the degrading acts. While a reasonable person might look at the footage and believe there is no way anyone would consent to such treatment–after all, horrified Newport Beach police officers at first thought the DVD showed the defendants having sex with a corpse–Doe's level of sexual activity might convince jurors it was consensual.This followed defeated defense arguments from trial alleging Doe faked unconsciousness.

Deputy Attorney General Lise Jacobson countered all three lawyers, saying California's rape shield law does not violate the constitution nor was it misapplied by Briseño. She also said Spann received adequate counsel from Morreale.

But Ikola and particularly Aronson did hammer her about the inadmission of the Cervantes testimony and whether it would have tainted the jury's opinion of Doe. At one point, Jacobson did concur that such testimony might lead jurors to believe Doe was what the defense made her out to be: a “sexual deviant.” But she also claimed Cervantes would have been speaking about an incident that was markedly different than what was depicted on the DVD and therefore would not have ultimately led the jury to a different conclusion.

Jacobson said inclusion of the testimony would have only kept Doe on the stand longer than the four grueling days she already put in at trial, but her story would have been the same. Mouthing the words of the violated young woman's reaction to the DVD, Jacobson said, “I would not consent to being raped. I would not consent to what they did on that.”