Tape Is Key to Jury Selection in Rape Trial

Hundreds of potential jurors will be summoned to an Orange County courtroom this week for a case in which the defense will ask a jury to look beyond a videotape that authorities say shows a group of teenage boys sexually assaulting an unconscious girl.

The youths -- three friends who had gathered that night at the Corona del Mar home of one of their fathers, a top Orange County sheriff’s official -- filmed themselves raping the 16-year-old girl on a pool table and assaulting her with a billiard cue, a cigarette and a Snapple bottle, prosecutors say.

As in other high-profile cases involving a homemade movie or a snippet of videotape, the case against the three young men is likely to come down to whether jurors see the tape as irrefutable proof of their guilt or an out-of-context moment in the lives of sexually active high school students.

“We’re looking for people who will suppress their desires to convict without getting the full picture,” said John D. Barnett, an attorney for one of the young men.

A defense motion to show the video to each potential juror during the selection process -- to weed out those who might see it as conclusive proof of guilt -- was rejected, so the youths’ attorneys said they will fall back on quizzing juror candidates about their possible reaction to the graphic video. Early exposure to the tape also would have helped defense attorneys desensitize jurors so they would be less shocked by it in the trial, which is scheduled to begin May 3.

The tape is so critical to the high-profile case that attorneys have spent months arguing its worth, how and when it will be shown to jurors and even its authenticity.

As many as 600 jurors will be brought to the courtroom in the next week, initially to find those who have time to serve on a trial that is expected to last up to two months. Jurors who are able to serve will be asked to fill out a 120-question survey -- the longest jury questionnaire the judge in the case says he has ever given.

Lawyers argued last week over one inquiry in the jury questionnaire about the content of the video. The defense had proposed to ask potential jurors if watching footage of sexual penetration with various objects would leave them unable to consider their clients’ possible innocence.

Judge Francisco P. Briseno agreed with Deputy Dist. Atty. Dan Hess that the question would amount to prejudging the evidence and should be changed to something less specific. Hess suggested asking jurors if material of a “graphic sexual nature” would offend them, but defense lawyers said that would not help them identify jurors who would be impartial.

“That phrasing will not capture the nature of this evidence,” Barnett said.

Lawyers would not disclose the content of the finalized question, as the judge barred them from discussing the questionnaire, but Barnett said he was satisfied it would help them in their search for jurors.

In the two years since the incident in the summer 2002, a judge has ruled on numerous motions that defense attorneys have filed as part of an effort to shape the case.

Prosecutors won a significant victory when the judge ruled that the tape can be shown to jurors, rejecting the defense team’s assertions that the tape was obtained illegally and has been doctored.

Defense attorneys, in another motion, won the right to ask the alleged victim about any past sexual relations she had with the three youths. But the judge rejected a defense request to explore the girl’s sexual history, including an unsubstantiated report that her goal was to become a porn star.

Lawyers for Gregory Haidl, 18, son of Assistant Sheriff Donald Haidl; Keith James Spann, 19; and Kyle Joseph Nachreiner, 19, say the sex depicted on the video was consensual and that in the days before the Corona del Mar party, the girl had indicated her willingness to be a sexual partner with all three.

The prosecution maintains that, regardless of the girl’s past, her ability to consent to a sex act was eliminated when she slipped into unconsciousness, apparently as a result of alcohol or drugs. During the upcoming two weeks of jury selection, the prosecutor and defense attorneys will inquire about potential jurors’ backgrounds as well as their thoughts on police, sexual assault and the amount of media attention the case has drawn. But defense attorneys say their main challenge will be to root out those who may find the footage so repugnant that they are unable to fairly consider other evidence.

The challenge is a familiar one for Barnett, the lawyer representing Nachreiner. His former clients include one of the Los Angeles police officers accused of participating in the videotaped 1991 beating of Rodney King and an Inglewood police officer charged with assaulting a teenager in another videotaped incident in 2002. The Los Angeles officer was acquitted, and two juries deadlocked on the charges against the Inglewood officer.

Experts said that in both cases, Barnett worked to find jurors who said they were willing to disregard their first impressions if evidence convinced them otherwise.

“He really gets the jury to be open to the fact that what their eyes tell them is happening, is not what’s really happening,” said former federal prosecutor Laurie Levenson, a law professor at Loyola Law School.

Unlike those cases, though, the video of the alleged Orange County rape has not been broadcast to millions of homes nationwide. The broad publicity that accompanied the tapes of the beatings diminished their ability to shock jurors upon their first viewing.

In the upcoming trial, the footage is more likely to have the force of the videos in the Ventura County trial of Andrew Luster, experts say. The great-grandson of the late cosmetics legend Max Factor was convicted last year of drugging and raping three women in a series of assaults he videotaped.

One of Luster’s attorneys, Roger Jon Diamond, tried to describe the footage as graphically as possible beforehand to prepare the jury.

“I wanted to shock them with my statements so that when they actually saw the tape, it wasn’t so much of a shock,” he said. “In effect, I was trying to desensitize the jury.”

When the jury saw the video, however, Diamond could tell they were still bothered.

“They were disturbed,” he said. “It was a problem.”

Midway through the trial, Luster fled and was convicted in absentia. Five months later he was found in Puerto Vallarta, Mexico, by a bounty hunter and returned to the United States. He is now at Salinas Valley State Prison, serving a 124-year sentence.