The Critic

Photo by James BunoanAll the forces of the state's power in Orange County have come to a kind of single focus in a Santa Ana courtroom, the arena for the People's case against accused gang rapists Gregory Scott Haidl, Kyle Nachreiner and Keith Spann. And all of that legal energy is now trained on a single question: Did Haidl commit rape during a late-night Newport Beach beer party if his penis did not penetrate the allegedly unconscious minor?

Prosecutors say Haidl, Nachreiner and Spann invited a 16-year-old Rancho Cucamonga girl to their July 2002 party; gave her marijuana and alcohol; and, after she fell senseless, tossed her body on a garage pool table, raped her and then sexually molested her with foreign objects. When the girl woke up alone the next morning in a car parked on a San Bernardino County residential street, she had no memory of the events. Nevertheless, the prosecution's evidence in the case seems unassailable: a 21-minute sex DVD made by the defendants, showcased to their high school friends, and now locked in evidence at Orange County's central courthouse.

But a six-member legal defense team (and a professional public-relations adviser) for the 18-year-old Haidl, the son of a wealthy assistant sheriff, is hoping to turn what looked like an open-and-shut rape conviction in the upcoming March trial into a power struggle over the video's contents.

From the beginning, defense lawyers led by Joseph G. Cavallo have argued the alleged victim was a willing participant in a harmless “weekend sexcapade.” They've said the girl had voluntary sex with two of the suspects in the days before the alleged crime. They've even described her as a porn-star wannabe, anxious to associate with rich kids, and questioned why she would go alone to an all-male party if she wasn't expecting sex.

But defense tactics to soften the shocking power of the video have taken on new urgency in the wake of a series of setbacks. District Attorney Tony Rackauckas has thwarted their dreams of a generous plea deal, and Superior Court Judge Francisco Briseo has nixed their effort to move the case to a more lenient juvenile court, denied their request to dismiss the case because of prosecutorial overzealousness, and—most notably—overruled motions to block admissibility of the video.

During a Jan. 22 hearing, E. Thomas Dunn Jr.—a former deputy DA hired by the Haidl defense team—asserted not only that the alleged victim was conscious during the sex, but also that the initial part of the tape shows her giving a blowjob. “It's pretty hard to commit fellatio when you're unconscious,” Dunn told Briseo. He also portrayed Haidl as nothing more than a bystander. “It wasn't Mr. Haidl having intercourse [on the DVD],” Dunn said.

For months, prosecutor Brian Gurwitz has watched defense lawyers attack the motives and techniques of his office and police detectives. His responses have largely been legalistic until now. Dunn's assertions about the alleged victim's consciousness coupled with Cavallo's description of his client as “this little boy” who is “innocent” and “did not rape anyone” left him outraged.

On Jan. 27, Gurwitz—who is adamant the girl was unconscious when she was assaulted—won Briseo's permission to address his concerns in open court. The 10-year deputy DA acknowledged that the video did not catch Haidl having intercourse, but he argued what it does show is worse. “Mr. Cavallo says his client is not guilty, and Mr. Dunn all but indicated the victim deserved [to be raped],” Gurwitz said. “The defense has also suggested that this 'little boy' Gregory Haidl somehow is deserving of juvenile-court treatment because he's merely an aider and an abettor in this case.

“Gregory Haidl himself, by his own 'little boy' hands—to use the defense counsel's words—sticks an apple-juice can in the victim's vagina while she is unconscious, sticks a lit cigarette in her vagina; he sticks a Snapple bottle in her vagina; and he separated her buttocks so she could be assaulted with a pool cue by his friend,” he said. “It's his camera. It's in his house. He's the one who's in the best position to stop what's going on here.

“Now the defendant also suggests this [incident] is [about] youthful drunkenness,” Gurwitz continued. “But what happens after Mr. Haidl apparently sobers up? He keeps the trophy of his victimization of the girl. He brags about it. He shows the videotape to others, and thank goodness because it ultimately became his own undoing.”

Briseo, who has watched the video, listened intently and reacted on Feb. 2. In dismissing the Haidl defense claims that Rackauckas was making their client a “political scapegoat,” Briseo reiterated the strength of the video for the prosecution. “The defendant's visual disregard for another is so graphic that this court would reasonably anticipate that any prosecuting agency would endeavor to use all of its resources to properly prosecute the alleged crimes.”

Cavallo told the Los Angeles Times he accepted Briseo's ruling. It's pretty clear he has no other choice. It's also clear that Cavallo badly miscalculated: his bald declaration that the video would prove his client innocent provoked, in open court, the first candid description of Haidl's actions on a DVD so far unseen by the public.

Public ignorance of the images was Cavallo's last, best ally in a case that swings on the DVD. Those who've seen it say it's deadly to Haidl's case. And now, thanks to Cavallo, they say, we all know what it shows.

“All three of those guys took out their sick sexual fantasies on an unconscious girl,” said one law-enforcement source familiar with the video's contents. “And it was Gregory Haidl who was laughing and dancing around and mugging for the camera as he personally directed his friends on what to do to the victim. He grabbed her ass. He squeezed her breast. He shoved the foreign objects in her. I don't care that he didn't put his penis in her or not.

“Despite Mr. Cavallo's showboating, his client is just as responsible for the rape as the other two guys.”