O.C. Gang-Rape Suspects Will Be Retried

The day after a jury deadlock triggered a mistrial, the Orange County district attorney’s office announced Tuesday that it would refile charges against an assistant sheriff’s son and two other teenagers accused of raping an allegedly unconscious 16-year-old girl.

Legal experts and lawyers who followed the high-profile case said they expected a second trial but cautioned prosecutors to take cues from the first jury – which leaned toward acquittal on nearly every charge – when restructuring the case.

The key evidence against the defendants, a videotape the youths made of the July 2002 incident, may have falsely lulled prosecutors into thinking a conviction was inevitable, said former federal prosecutor Laurie L. Levenson.

“People really have to learn the lesson that videotapes don’t tell the whole story,” she said. “You cannot assume that just because there’s a videotape of very disturbing conduct that it’s going to result in a conviction.”

Orange County Dist. Atty. Tony Rackauckas told a television news station that he could not imagine not pursuing a retrial.

“We’ve got a young girl, she’s unconscious and she’s being raped. We’re going to retry the case,” he told KCAL-TV Channel 9. “Regardless of the politics, I have a duty, and this office has a duty, to stand up and do what’s right.”

Rackauckas said prosecutors may retool the charges against the three defendants. For the first trial, they were charged with rape by intoxication, rape by force and assault with a deadly weapon.

Gregory Scott Haidl, Kyle Joseph Nachreiner and Keith James Spann, all 19, could have been sent to prison for up to 55 years each had they been convicted on all 24 counts. All three, and the alleged victim – referred to as Jane Doe during the trial – lived in Rancho Cucamonga at the time of the incident, at the Corona del Mar home of Orange County Assistant Sheriff Don Haidl, the defendant’s father.

The defendants on Monday expressed relief that they had not been convicted, tempered by the knowledge that prosecutors would probably retry the case. One defense lawyer said Tuesday that Rackauckas made his decision too hastily.

“He’s doing it for political reasons without considering what the jurors said,” said Haidl’s lead lawyer, Joseph G. Cavallo. He expressed optimism, though, saying he and the other defense attorneys held back some of their evidence and witnesses, understanding the possibility of having to retry the case after a mistrial.

“He’s already given us his best shot,” Cavallo said, “and we haven’t given him ours.”

The jury deadlocked after two months of testimony and 15 hours of deliberations. When the jury foreman announced the jury’s breakdown on each count Monday, he indicated that as many as four jurors remained undecided on some counts. On only one charge – assault with a deadly weapon – were the jurors evenly split between conviction and acquittal.

In a recent study of 372 state trials in four U.S. cities, the National Center for State Courts found that only 7.5% of the juries deadlocked on all counts, and 12.8% deadlocked on at least one charge.

Often, when juries say they may not be able to reach a verdict, a trial judge will send them back into deliberations. But Orange County Superior Court Judge Francisco P. Briseno immediately declared a mistrial after each member of the four-woman, eight-man jury said further deliberations would not change their minds.

The defendants are set to return to Superior Court Aug. 6 for a pretrial hearing, when they will be arraigned on the new set of charges. There may be a new prosecutor and judge for the second trial. For a case that has attracted national publicity and entails such serious charges, Levenson said, it would have been difficult for prosecutors to decide against a retrial.

“There’s a public pressure to pursue the case unless you absolutely don’t think you can prove it,” she said, because the limelight makes it harder to walk away.

It is not unusual for prosecutors to win convictions in retrials. Two years ago, a Buena Park man was convicted of voluntary manslaughter for killing a teenage neighbor who stole a plastic Halloween pumpkin from his porch. A prior jury had deadlocked 9 to 3, the majority favoring a guilty verdict. The odds may be longer in this case, with the first jury leaning in the opposite direction.

Neither side can completely reinvent its case in a new trial, since transcripts from the first trial can, and often are, introduced into evidence. Better preparing witnesses and dropping some of the more tenuous charges can make it easier for prosecutors to get convictions, legal experts said.

“Second trials are like graduate school: Everyone has learned from the process.” said veteran lawyer Paul Meyer. who defended Merrill Lynch in the Orange County bankruptcy case of the 1990s. “In this case, the prosecutor learned that jurors could be desensitized to this tape, and the defense learned they could get a toehold on the moral high ground.”

Trying the defendants separately, perhaps with charges that differ among them, may benefit prosecutors if they want to pare down the complexity of the case, Levenson said.

One juror said prosecutors would fare best by cutting the alleged victim from their witness list.

“I think that the hardest thing for the prosecution is going to be Jane Doe,” said the 39-year-old juror, who did not want to be identified. “It’s very evident in a number of areas that she is lying. That just hurt her credibility throughout her entire testimony.”

Still, he said, the defense presented so much doubt in the case that he doesn’t think a second jury would favor the prosecution. “I definitely think it’s going to be very difficult to get a conviction.”

The alleged victim, now 18, is prepared to testify again if needed, her civil attorney said Tuesday. Her family will probably hold off on filing a civil lawsuit until the second trial is over.

She and her family are frustrated by the deadlock, said the attorney, Sheldon Lodmer.

“They’re still upset at the jurors’ lack of ability to comprehend what went on,” he said. “It’s not a happy situation, but we’re very pleased the D.A. decided to refile. We want justice done, and the jury did not bring justice in this case.”