Prosecutor Is Called to Testify in Rape Trial

A high-profile Orange County rape trial took an unusual turn Wednesday when the prosecutor was called to testify as part of the defense’s continued campaign to toss out a video of the alleged assault.

Attorneys for the three teens accused in the 2002 rape of an unconscious 16-year-old girl said they were trying to find out why Deputy Dist. Atty. Dan Hess showed footage of the alleged rape to a video expert June 8.

They have asked the judge to direct the jury to disregard the video in its entirety -- a request that if granted could result in a mistrial.

The defense lawyers believe that portions of the tape could accidentally or even deliberately have been erased -- especially parts that lend weight to their belief that the video has been doctored -- during the 15 minutes Hess and video expert Brad Hagen were alone with the footage and a VCR.

“Nobody goes in and does that to evidence,” said defense attorney Joseph G. Cavallo outside court. “You don’t touch evidence without the defense lawyer’s knowledge.”

Cavallo’s client, Gregory Scott Haidl, 18, along with Kyle Joseph Nachreiner and Keith James Spann, both 19, could face up to 55 years in prison if convicted. Although all three defendants and the alleged victim lived in Rancho Cucamonga at the time, prosecutors say the incident took place at the Corona del Mar home of Haidl’s father, an Orange County assistant sheriff.

In a written response to the defense attorneys’ motion, prosecutors said they did nothing wrong. “There was no experimentation that took place here,” the brief read. “The People’s expert simply watched the videotape.”

The playing of the 21-minute tape took place about 4 p.m. on June 8 in the jury room of the Santa Ana courtroom where the trial has been going on for six weeks. The jury was not present during Wednesday’s 10-minute hearing. Hagen testified that he used the “record inhibit” mode on his VCR to ensure that the tape was not modified.

“Did you in any way alter what was on [the tape]?” asked Orange County Superior Judge Francisco P. Briseno.

“No, sir,” Hagen replied.

Over the protests of fellow prosecutor Brian Gurwitz, Hess was called to the stand to testify about which court personnel gave him the tape and where they got it. Gurwitz said Hess’ declaration, continued in the prosecutors’ opposition to the defense motion, should have eliminated his colleague’s need to testify.

Hess stood and swore to tell the truth, then took the stand as have all of the other witnesses in the trial. The clerk, Sue Hauer, smiled as she asked him to state his full name and spell his last name for the record.

Hess answered all of defense attorney Peter Scalisi’s questions, mostly with yes or no replies. Hess acknowledged he had not received authorization from the court to play the video for the witness, nor had he notified the defense lawyers of his plans.

The judge plans to rule on whether the tape should be tossed out following Hagen’s testimony today in front of the jury. Gurwitz said Wednesday that the issues discussed at the hearing should not be mentioned to the jury in their instructions, as the defense attorneys had also requested.

“Whether adequate permission was granted or not granted or whether defense attorneys were notified or not is not relevant to any issue being considered by the jury,” Gurwitz said.