Video Allowed as Evidence in Rape Trial

A video purported to show three young men raping an unconscious 16-year-old girl has not been doctored and will be allowed at trial, an Orange County judge ruled Tuesday.

The tape is the prosecution’s key evidence against the three teenage defendants, one of whom is the son of a high-ranking Orange County sheriff’s official

“It is reasonably certain that no alteration was made by third parties or law enforcement,” Superior Court Judge Francisco P. Briseno wrote in his ruling. “The tape is in the condition as found.”

During a two-week hearing, defense lawyers asked the judge to throw out the tape, saying it had been altered before it was given to Newport Beach police. The defense argued there was a 17-minute gap in the tape, footage that would have shown the girl gave her consent before passing out.

But prosecutors said the missing-tape argument was nothing more than a conspiracy theory.

Facing charges stemming from the summer 2002 incident in Corona del Mar are Gregory Haidl, 18, the son of Orange County Assistant Sheriff Don Haidl; Keith James Spann, 19; and Kyle Joseph Nachreiner, 19, all of San Bernardino County.

Briseno’s ruling means that it will be up to jurors to determine the tape’s authenticity, said Nachreiner’s attorney, John D. Barnett.

Barnett also failed to get the court’s permission to play the tape during jury selection, a device he hoped would help defense lawyers weed out jurors unwilling to look beyond the video.

Barnett represented one of the officers accused of participating in the videotaped beating of Rodney King and Inglewood Police Officer Jeremy Morse, who was also accused of assaulting a civilian during an incident caught on tape. The first officer was acquitted, and two juries deadlocked on the charges against Morse.

A key part of their defense strategy, he said, was identifying potential jurors who refused to consider evidence besides the footage they had seen on television -- an opportunity that will not be available in the Orange County case because the tape has not been broadcast.

Upon viewing the tape for the first time, Barnett said, jurors might be so revolted or uncomfortable that they would be unable to treat the defendants fairly.

During the two-week hearing on the tape, defense attorneys argued that flutters and black frames in the video proved it was not the original.

Prosecution witnesses countered that normal video operation, tape defects or a power surge could have also caused the anomalies.

Briseno discounted the defense’s arguments, writing in his ruling that the video contains “no evidence to support that the alleged missing 17 minutes contains exculpatory evidence (showing consent) or that even 17 minutes of tape were in fact deleted by anyone.”

Defense lawyers also challenged the chain of custody, saying that anyone, including the young woman who turned over the tape to authorities after watching it at a beach house, and the several San Bernardino County sheriff’s deputies who viewed it could have altered it before handing it over to Newport Beach police.

All of the witnesses who saw or possessed the alleged rape footage testified at the hearing that they did not tamper with it and that they could detect no differences in recent viewings between the tape they watched and the prosecution’s video.

Deputy Dist. Atty. Dan Hess, in his closing arguments to the judge during the hearing, said no evidence had been presented that anyone had edited the tape.

Hess did not return calls Tuesday seeking his response to Briseno’s decision.

A hearing begins today on the defense motion to introduce testimony about the accuser’s sexual history at trial. Jury selection is scheduled to start Monday.