D.A. Misjudged Rape Case; Jury Got It Right

Let’s not use the word “justice” to describe the outcome of the Orange County gang-rape trial that ended Monday in a mistrial. That’s too high-minded a concept to put anywhere near this sorry saga that is ready to be laid to rest.

Instead, let’s just say that in deadlocking on all 24 counts -- and, therefore, not returning guilty verdicts that would have sent the three teenage defendants to the penitentiary -- the jury got it right.

Some will argue the hung jury leaves things in limbo; that after a two-month trial, we’re back where we started. They will be the same people who have misread this case from the start and, inexplicably, developed a blood lust for the defendants.

The truth is that the deadlock, which forced Judge Francisco Briseno to declare the mistrial, sends a very loud message. This isn’t a jury that failed to return a verdict; it’s a jury that couldn’t. It couldn’t because the case was overcharged from the get-go and because it raised too many questions on too many fronts for any group of 12 jurors to agree.


In simplest terms, prosecutors called it a gang rape and some of the jurors said, “We don’t think so.”

I don’t know what all the jurors would say about their thoughts on the case. But I’d bet that what lay at the heart of their doubt was a refusal to equate the boys’ abominable behavior on the night of the incident in July 2002 with a stretch in state prison.

Yes, jurors aren’t supposed to consider potential sentences. But give me a break. You don’t ask people to serve on a jury for two months, stack up 24 felony counts in front of them and expect them not to consider the consequences of a guilty verdict.

Incredibly, the D.A.'s office is planning a retrial. Spokeswoman Susan Kang Schroeder says another jury might see things differently, telling reporters: “I wouldn’t put too much stock in what one jury has to say.”


I hope they don’t replay that remark for the thousands of citizens who show up every month for Orange County jury duty.

More to the point, a hung jury in this case is more definitive than it would be in most others. That’s because the 21-minute video that was the centerpiece of the prosecution’s case -- the video that purportedly showed the entire criminal chronology -- was depicted as being so repugnant and incriminating that anyone who watched it would vote to convict.

It didn’t happen.

That video evidence won’t get any stronger. Unless the D.A.'s brain trust concludes that Deputy Dist. Atty. Dan Hess, who handled the case, was utterly incompetent (and I don’t think he was) what conceivable reason is there to retry a case that is already 2 years old?

Prosecutors had a chance to calibrate the proper punishment when they filed charges. Instead of taking the case to Juvenile Court, where appropriate punishment might have been accorded the boys for their crass and debauched behavior, they threw the book at them, claiming the alleged crimes were so heinous that potential life sentences were appropriate.

I argued 18 months ago -- and again before the trial started -- that jurors would have trouble reaching agreement in a case like this. Believe me, it wasn’t that I thought Orange County jurors like heinous rapes. It was that the case would prove to be more complex than portrayed and that prosecutors were wrong in taking a winner-take-all approach. I suggested a meaningful plea bargain.

That never came, and this week the district attorney lost. Prosecutors lost an early credibility test when they depicted the boys as sadists and predators. When the evidence left some jurors unconvinced of both characterizations, as well as whether the boys drugged the girl or whether she was feigning unconsciousness during the alleged assault, the heart of the case was cut out.

For whatever reasons, prosecutors misread the case and the complexities of human experience that would be found in any jury of 12 adults. Airtight evidence began to leak, and what seemed obvious became less so.


The district attorney said he wanted to send a message by going after the boys.

Instead, a deadlocked jury sent one to the district attorney.

Dana Parsons’ column appears Wednesdays, Fridays and Sundays. He can be reached at (714) 966-7821 or at An archive of his recent columns is at