See? No Evil

Courtesy pool photographer
Ygnacio Nanetti/The Orange
County Register
As the government rests its casethis week, it's likely Haidl II is destined for another deadlock, that gang-rape suspect Gregory Haidl will go free—and that the world will once again know the glory that is John Barnett.

Barnett is a trial lawyer who limps slightly and wears unremarkable suits. But if he worked in Texas, they'd call him something like “Racehorse” for his inspiring courtroom performances. His specialty is rare: Barnett can take seemingly incontestable videotaped evidence against his clients and convince jurors to doubt their own eyes.

Such magic has earned Barnett national headlines over the years. The Laguna Beach lawyer saved Theodore Briseo from prison after the Los Angeles cop was filmed with his colleagues beating Rodney King in 1992. A decade later, a bystander videotaped another cop—Inglewood officer Jeremy Morse—violently pounding a handcuffed suspect during a traffic stop. Morse also hired Barnett, who twice blocked prosecutors seeking convictions for excessive force.

So it wasn't surprising that then-Orange County Assistant Sheriff Don Haidl enlisted Barnett to help rescue his son, Gregory, and two co-defendants, Kyle Nachreiner and Keith Spann. The defendants face prison if convicted of alleged sex crimes committed during a 2002 Newport Beach party. According to prosecutor Chuck Middleton, the trio filmed themselves raping and molesting an unconscious 16-year-old girl on a pool table. Part of the 21-minute film shows the defendants laughing, cussing and dancing to hip-hop music while they shove a pool cue, Snapple bottle, apple-juice can and lit cigarette into the girl's vagina and anus.

You might think the Haidl rape tape would infuriate a jury in conservative Orange County, but the first trial ended last June in deadlock. The result left Barnett smiling—and local prosecutors dumbfounded. After all, it's against the law to have sex with someone who cannot consent throughout the act, the DA's office has the tape of the wild gangbang, and the girl now known as Jane Doe appears incoherent, if not unconscious, from booze and marijuana.

“How were we to know that the first jury would ignore what is obvious to see?” a prosecutor recently asked. “What the defendants did to that girl was disgusting. It was criminal. End of story. They should be punished.”

Trials aren't necessarily that simple.

Prosecutor Chuck Middleton, the gray-haired second in command at the Orange County DA's office, has proven nimble, passionate and clever. He's robbed the defense of at least two weeks' worth of smear tactics by scaling down the number of charges from 24 to nine, and he's obtained several important stipulations. You can partly gauge Middleton's effectiveness by the pissed-off expressions on the defense lawyers' faces when the prosecutor wins dozens of daily objections. But courtroom tactics and style are nothing if Middleton can't convince the jury of a single overarching fact: a potent combination of drugs and alcohol so incapacitated Doe that she couldn't consent or object to the conduct of the defendants.

“I'm confident,” Middleton told the Weekly recently.

Perhaps he shouldn't be, if only for a single reason: Barnett. Time after time, the defense lawyer has shifted the focus of the trial from the videotaped behavior of the defendants to the promiscuous pre-rape conduct and character of Doe. He understands that if a jury doesn't like or trust this victim, they'll find excuses not to convict the accused.

On March 1, Dr. Peter Fotinakes testified that Doe was undoubtedly in a stupor during the incident. “She's out of consciousness in this videotape,” he said. The doctor further described the girl's body as “limp and flaccid” and her rare reactions to painful stimuli “random and nonpurposeful.” Under cross-examination, feisty defense lawyer Joseph G. Cavallo got Fotinakes to make several concessions. The doctor said Doe may have moved hair from her face and held a leg up several times in defiance of gravity during the incident. Perhaps the biggest score for the defense was this exchange:

Cavallo: Did you see her mouth wrapped around [Spann's] penis [very early in the incident]?

Fotinakes: Yes.

Cavallo: Did you see her gagging at any point?

Fotinakes: No.

But the testimony wouldn't be as meaningful for jurors without Barnett's prep work on Doe a week earlier. If prosecutors think they have an open-and-shut case, Barnett has provided the jury with an alternative story—a mystery, in fact: Who would consent to videotaped sex and the use of foreign objects?

After getting the girl, now 18 years old, to admit to numerous inconsistencies in her testimony and that she often lied about drinking, drugs and sex, Barnett may have bombed Middleton's case:

Barnett: So there is a level of intoxication that you achieved which would allow you to do these [sexual] things that you wouldn't normally do, but still, at that level, you make choices, right?

Doe: Yes.

Barnett: That happens when you get drunk, right?

Doe: Yes.

The girl's admission addressed her conduct on the night before the alleged rape, when she consented to sex with two of the three defendants. But its potency can't be underestimated. Jurors now have reason to think Doe fabricated her unconsciousness in embarrassment after police recovered Haidl's video.

“Jane Doe told Mr. Middleton that she would never agree to do the things that were done on the videotape,” said Barnett. “My goal was to get her to say she does do things—bad things, sexual things nobody else would do—when she's intoxicated. She admitted that. So when somebody asks, 'Who would consent to such terrible acts?' The answer is clear: Jane Doe.”


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