Does the Sex Video Show All We Need to Know?

Now that the alleged victim of an Orange County gang rape has spent the last four days on the witness stand, recounting part of her sexual history with the straightforwardness of an auditor discussing an account ledger, the battle for jurors’ hearts and minds is fully engaged.

We like to think that trials are always about the letter of the law, but that’s not so. Sometimes they’re about impressions and gut feelings and biases and other things known only to the individual jurors who will hand down the verdict.

Jurors like to make sense of things. Sifting through conflicting stories during the trial, they want to feel by the end that they’ve got a handle on what happened at the alleged crime scene that, in essence, they’re being asked to reconstruct. As one attorney told jurors early in the trial, this is their chance to be real-life players from the “CSI” TV series.

Even with more testimony coming, these jurors already know what they’ll be debating a few weeks from now: Does the 20-minute home video depicting three teenage boys having sex with and inserting foreign objects into a seemingly unconscious 16-year-old girl tell us everything we need to know to convict them of rape?

Her testimony this week has only underscored that the star witness in the case is the video. Caught under cross-examination in a series of inconsistencies -- some seemingly trivial, others less so -- it’s clear the alleged victim alone never could have carried the case. No doubt, prosecutors wouldn’t have brought the case without the video.

Identified as Jane Doe and now 18, the alleged victim testified that for the first three weeks after the July 2002 incident that she didn’t want to pursue the case. Nor did she tell her parents or medical personnel or police or prosecutors in the early going that she’d had any residual pain from the incident. And even when telling police early on that the boys “shouldn’t have done it, they took advantage,” she in the next moment took some of the blame by her decision to join them at 12:30 a.m.

In addition, one of her first reactions to the alleged attack, even after learning of the specifics, suggested amazing equanimity. When police asked if she were surprised at what happened to her, she told them: “Halfway yeah, halfway no. I thought they were better people than that, but I could also see them being horny 17-year-old boys with a passed-out chick.”

However, from her earliest statements to police, she insists she was unconscious or incapacitated during all of the alleged sexual activity and consented to none of it.

But even as the jurors’ minds digest testimony and law, their hearts will focus on the flesh-and-blood participants.

I asked a veteran Orange County criminal attorney not associated with the case if the video -- even if it strongly suggested guilt -- would carry the day.

“Here’s what happens,” the attorney said. “We assign jurors the finding-of-fact role and jurors are aware of what’s going to happen if it’s a guilty verdict.” By that, he said, he means years in prison for the boys.

“So when jurors come in to make a determination whether she was conscious or not and whether or not the boys knew she was conscious or not, they will color that determination by their overall feel for the case.”

For example, the attorney said, jurors who for whatever reasons don’t think the case warrants lengthy imprisonment need only conclude that they aren’t convinced the alleged victim was unconscious throughout the alleged assault. “We’re not blank slates when we look at a video,” he said. “We all bring our experience to it.”

In that same vein, the attorney said, if jurors like the boys, relate to them, or like their attorneys or believe that the law as read to them by the judge “is inappropriate in this circumstance,” they also may feel comfortable returning a not-guilty verdict.

Hearts and minds and a 20-minute video.

By the time these jurors leave the courthouse for the final time, they’re going to want all three elements to come together and guide them to a just verdict.

Dana Parsons’ column

appears Wednesdays, Fridays and Sundays. He can be reached at (714) 966-7821 or at dana.parsons@latimes.com. An archive of his recent columns is at www.latimes.com/parsons.