Public Can’t View Tape at Rape Trial

A judge ruled Thursday that the key evidence in a case against three youths accused of raping an unconscious girl -- a videotape they made of the alleged assault -- will not be shown to the public during the upcoming trial.

Orange County Superior Court Judge Francisco P. Briseno said the accuser’s right to privacy outweighed the need to reveal the evidence in open court.

Attorneys representing the Los Angeles Times, the Orange County Register and CBS objected to the judge’s decision. The network is documenting the case for an episode of “48 Hours.”

The judge also denied the attorneys’ modified request to let the footage be viewed by the media, which could then report its content to the public.

“The videotape is the crucial evidence in this case,” said James Grossberg, the lawyer representing the newspapers. “Barring public access to the video is virtually tantamount to having a secret trial.”

Key issues in the case are whether the sexual activity was consensual, whether the accuser was conscious at the time and whether the video has been doctored. The attorneys have not decided whether to appeal.

Testimony is expected to start May 3 in the trial of Gregory Scott Haidl, 18; Keith James Spann, 19; and Kyle Joseph Nachreiner, 19. They are accused of raping a girl during a party at the Corona del Mar home of Haidl’s father, Orange County Assistant Sheriff Don Haidl, during the 2002 Fourth of July weekend.

Two defense lawyers opposed the media’s request, citing the accuser’s right to privacy and the fact that she and the defendants were minors at the time of the filming. Showing the video in open court, they said, would also infringe on their clients’ right to a fair trial.

“It places all four of them in an inaccurate light,” said attorney Joseph G. Cavallo, who heads Haidl’s defense team. “The judge has decided to take the safe route and not further embarrass anyone or prejudice the case in any way.”

Deputy Dist. Atty. Dan Hess, whose office technically represents the accuser, did not object to the media’s request to view the video in open court. He did not elaborate on his position outside the courtroom.

Veteran media lawyer Rex Heinke of Los Angeles said that even if the judge sees an overriding reason to deny public access to the full video, he should make an effort to show segments that he believes won’t infringe on the accuser’s rights.

“He should only refuse access to the smallest portion possible,” Heinke said.

Former federal prosecutor Laurie Levenson said excluding the public from seeing the video or the media from disseminating it is equivalent to closing the courtroom for the prosecution’s key witness. “The public will have no way to assess the evidence for themselves,” said Levenson, a professor at Loyola Law School in Los Angeles.

She and Heinke agreed that it is odd for the defendants rather than the accuser to request the footage not be shown in open court. Although they may say they don’t want to further humiliate the accuser, she said, it seems more likely they are worried that viewing the tape will inflame the public and even influence the jury.

“It’s extraordinarily ironic that the defendants who made this videotape are now the ones asserting that no one else is allowed to see it,” she said. “They should be the last ones in line citing a right to privacy.”