Photographer’s 2 Sexual Assault Cases Dropped After Videotape Viewed

Charges against a North Hollywood photographer accused of sexually assaulting two women were dropped during his trial Wednesday after he produced a videotape showing that one woman apparently was a willing participant.

Herbert Drye, 32, put his head down on the defense table and cried when Van Nuys Superior Court Judge Darlene E. Schempp dismissed the charges at the request of the district attorney’s office. Drye, a free-lance photographer, faced more than 40 years in prison if convicted of the seven sex-related charges involved in the two separate incidents.

The tape “completely exonerated” Drye in one of the assault cases and cast doubt on the credibility of the other, said Drye’s attorney, William S. Pitman.

“If Mr. Drye hadn’t had the tape, the system was willing to send him to prison,” Pitman said.

However, Schempp sentenced Drye to a year in jail for violating his probation on an unrelated conviction for unlawful sex with a minor. “Mr. Drye is a menace,” the judge said.

The incidents Drye was on trial for occurred last year at North Hollywood homes that he also used as photo studios.

A 22-year-old woman told authorities that Drye sexually assaulted her in May after she went to his photo studio, had drinks and posed nude for still photographs he said he would sell to a German magazine. While that case was being investigated, a 24-year-old woman reported to police that Drye had sexually assaulted her after she went to his home on a date in December.

Drye was arrested and charged with sexual battery and rape with a foreign object in the first case. In the second incident, he was charged with two counts of rape, two counts of rape with a foreign object and one count of false imprisonment.

A jury trial began last week, and both women testified that they had been attacked by Drye. The defense was presenting its case Monday when Drye testified that he had consensual sex with both women and had a videotape of the first incident.

After Pitman offered the tape as evidence, Schempp and prosecutors viewed it privately. Deputy Dist. Atty. Lori Dery then asked the judge to dismiss all charges.

“After viewing the tape, there was insufficient evidence to prove there was a forcible sex act,” Dery said. She would not discuss the contents of the tape because it was not entered as evidence.

She said the tape prompted her to seek dismissal of charges involving the second woman because the first incident was needed to demonstrate a pattern of behavior. Without the first case, the second one--which rested largely on the victim’s word against Drye’s--would have been difficult to prove, Dery said.

Pitman said the tape shows the first woman was a willing participant. He would not elaborate. He said the woman was “lying through her teeth” when she testified that she was assaulted by Drye.

It was unclear if the woman knew that she was being videotaped. She had told investigators that Drye videotaped part of the photo session but apparently she did not realize that the video camera was on throughout the time she was with the photographer. Dery said the woman also was intoxicated, a contention Pitman disputed.

“She was clearly in control and knew what she was doing,” Pitman said.

Dery said the tape came as a surprise. Investigators had searched Drye’s belongings but did not find it, she said. The prosecutor also raised questions about Pitman’s failure to tell authorities about the tape before the trial.

“If the attorney had brought this forward earlier, we possibly would not have gone forward,” she said. “It was basically a waste of the judicial system’s resources.”

But Pitman defended his actions, saying that producing the tape at the trial was a tactic that insured that all charges involving both women would be dismissed.

After Schempp dismissed the case, Dery asked the judge to jail Drye for violating terms of a one-year probation he was placed on last year for unlawful intercourse with a minor.

Schempp said she determined that Drye had violated his probation based on the testimony of the 24-year-old woman. In finding a violation of probation, a judge can use a standard of proof that is less than the standard a jury must apply in weighing a criminal conviction.

Schempp also ordered Pitman to turn the videotape over to prosecutors, who will consider perjury charges against the woman. Dery said it was doubtful that the woman will be charged. Proving she lied intentionally would be difficult because she appears intoxicated on the tape, Dery said.