In Defense of the Prosecution, They Did Make an Offer

I want to give the Orange County district attorney’s office its due.

In last Sunday’s column, I lamented the failure of prosecutors and defense attorneys to settle the sexual assault case involving three teenage boys and an unconscious 16-year-old girl known as Jane Doe. The case resulted from an incident in July 2002 in which the boys videotaped themselves having sex and penetrating the girl with foreign objects. It spawned two trials, with the second landing the defendants six-year prison terms.

The column left the Orange County district attorney’s office hopping mad, because I wrote that it was prosecutorial zeal, early on, that got in the way of a settlement. Although in column after column, starting in early 2003 and more than a year before the first trial, I denounced the boys’ behavior (all were 17 when the incident occurred), I also thought the D.A.’s office was heavy-handed in piling on charges that likely would have sent the defendants to prison for many years.

It should have been obvious, given the usual approach in disputed sexual assault cases, that the defense team would go all-out to discredit the victim. In my first column on the subject, I appealed to both sides: “Don’t make the girl testify, don’t make jurors watch the videotape. Don’t go for winner-take-all that would exonerate the teens or consign them to years in prison.”

When the first trial in 2004 ended in a hung jury, I thought prosecutors would give up. They didn’t, and I then lobbied again for a settlement. Again, it didn’t happen, and I speculated last week that the defendants probably had been the ones who scuttled it.

That’s the abbreviated lead-in to the lengthy conversation I had Friday with Susan Kang Schroeder, spokeswoman for Dist. Atty. Tony Rackauckas. I knew she’d been angry, but on Friday she was cordial and professional, saying she wanted to “set the record straight.”

She reiterated what she’d told the Associated Press after my column ran -- that the D.A.’s office had offered the defendants a plea bargain on the eve of the second trial that specified a three-year prison term. That was a counter-proposal to a defense offer on that Super Bowl 2005 weekend to accept two-year prison terms.

The D.A.’s offer was nearly a done deal, Asst. Dist. Atty. Chuck Middleton said, when the defense changed its mind at the 11th hour. Then, he said, prosecutors offered a separate plea bargain to Kyle Nachreiner. In exchange for testimony against the other two defendants, the D.A. offered him probation. That offer also was rejected, Middleton said.

Joseph Cavallo, the lead trial attorney for Gregory Haidl, said Friday he never got an offer, nor made a counteroffer, nor rejected one.

However, defense attorney Al Stokke, who was advising the Haidl defense team, confirmed Middleton’s account. “I worked very hard to put this final disposition together at that point in time within the few days before the second trial,” Stokke said Friday. “We had a firm and final resolution to the case that I believed was firm with both sides. I only believed it was firm, because I talked to everyone except Nachreiner and [defendant] Keith Spann.”

I asked Stokke what happened to the done deal. “The D.A. was in full agreement and to this day I don’t know exactly why it didn’t go down or who [on the defense team] pulled the plug on it.” In reply to the obvious question, he replied that he “spoke directly to Joe Cavallo” about the deal and, “I believed it was firm with everybody.”

I’m recounting this, because after blaming the D.A.’s office for overzealousness in the early going, there’s no disputing that the three-year deal represented a good-faith offer and one the defense team should have taken. And I would have said that even before the defendants got six-year terms March 10 from Superior Court Judge Francisco Briseno. With time served in county jail, the defendants will spend roughly two years in prison.

In light of the three-year term it ultimately offered, I asked Schroeder why the D.A.’s office didn’t approach the defense before the first trial. She said prosecutors typically don’t make the initial overture. “It’s the other way around. They come to us. Then we say yes or no.”

The defense team, she says, sent no signals before the first trial that it wanted to settle the case. Nor did its aggressive pretrial actions, she and Middleton say, create an atmosphere conducive to the two sides getting together. “The thing they kept saying,” Schroeder says, “is that, ‘Our clients are not going to spend one day in jail.’ ”

The hung jury in the first trial gave prosecutors pause, Schoeder says. That’s why, when Stokke approached Middleton with the offer, prosecutors were receptive. The willingness to settle at the low end of the sentencing range was partly “to spare Jane Doe” from testifying again. Prosecutors weren’t happy with a three-year sentence, but the office consensus was to accept it, Schroeder says.

Incredibly, the three-year offer was right about where this case should have been. I thought the defendants deserved jail but not prison and certainly not for a number of years. However, the amount of time they’ll actually do in prison sounds almost like a presidential pardon, considering where this case started out and the fact that Middleton asked at sentencing for 12 years for Haidl, 10 for Nachreiner and six for Spann.

From the outset of the case, Schroeder says, prosecutors had one fixed point: The case shouldn’t be handled in juvenile court. I asked her if they would have been amenable to an early settlement of the case.

“It’s hard to say, but [Rackauckas] and the others involved are extremely reasonable and experienced. I think if they [the defense] had not engaged in this horrible public relations campaign, basically destroying this girl’s life, I think reasonable minds could have agreed.”

I have argued, and still would, that it was that prospect of overly harsh sentences before the first trial that unnecessarily defined the case.

Middleton says it wasn’t a certainty that a first-trial conviction would have yielded lengthy prison sentences. He acknowledged, however, that the defense couldn’t count on that.

In that context, I was surprised Friday to hear Schroeder say that Rackauckas “always thought this was an 8- to 10-year” case.

It only makes me wonder anew why this case couldn’t have been resolved without any trial, any Jane Doe testimony and any lengthy prison time for the defendants. Why couldn’t this case have been settled and spared everyone the tawdry spectacle it became?

Both sides say they would have preferred that, but it didn’t happen.

Instead, a young girl’s life was exposed for all to see. Three young men, 17 when their night of debauchery occurred, will spend more time in prison than they could have otherwise gotten by taking a plea bargain.

Barnett’s words, spoken after the sentences were handed down, will serve as this case’s legacy: “There were only losers,” he said when asked who won. “Everybody lost today.”

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Dana Parsons’ column

appears Wednesdays, Fridays and Sundays.