Gang-Rape Prosecution Rests Case

Orange County prosecutors on Wednesday wrapped up their case in the streamlined retrial of three young men -- teenagers at the time -- accused of sexually assaulting an unconscious girl.

Prosecutors decided this time not to muddy their case with allegations that the teenage girl had fallen victim to a “date-rape” drug. Instead, they focused on the girl’s unflinching testimony that she had no memory of what occurred that night in 2002 -- events the defendants captured on a videotape that prosecutors say shows her unconscious.

The defense has promised a new element of its own, hoping today to win the judge’s permission to call a witness it could not find for the first trial.

That witness, Joey Cervantes, is a former classmate of the defendants and the accuser and will testify about the sexual interactions he had with her around the time of the alleged rape, said defense lawyer Pete Scalisi. Cervantes’ statements will be “overwhelming,” Scalisi said.

“He’s the kind of witness who can tip the scales heavily for the defense,” Scalisi said outside the Santa Ana courtroom.

Chief Assistant Dist. Atty. Chuck Middleton called Scalisi’s statement “wishful thinking” and said Cervantes would “just be another witness attacking the credibility of the victim at a different day at a different time. There’s no witness that’s going to break open this case.”

The defense is scheduled to begin presenting its case Monday. The defendants, who did not take the stand in the first trial, have not yet decided whether they will testify in this one.

Unlike in the first trial, the alleged victim, called Jane Doe in court, was the first to testify for the prosecution. In the initial trial, she took the stand in between other witnesses.

Also in the second trial, the prosecution is arguing that the amount of alcohol consumed by Jane Doe was enough to cause her to lose consciousness. In the first trial, which ended with a deadlocked jury in June, prosecutors had contended that the boys slipped a date-rape drug into her drink.

The change in tactic simplified the prosecution’s case by eliminating the need to call an additional neurologist and experts on date-rape drugs. Several other witnesses from the first trial also were not called by the prosecution this time, including two teens with minor roles in finding the video at a beach house and turning it over to the police.

The defense spent more than three days cross-examining the alleged victim, now 18. She cried several times on the stand as she maintained that after drinking a beer and 8.5 ounces of gin she remembered nothing of the early hours of July 6, 2002, in the Corona del Mar garage of Don Haidl, the father of a defendant and then an assistant sheriff.

“Because I was unconscious, I couldn’t consent, and I wouldn’t consent to any of that stuff,” Jane Doe said.

Lawyers on both sides agree the video shows the three defendants -- Gregory Haidl, now 19, and Kyle Nachreiner and Keith Spann, both 20 -- in various positions with Jane Doe on a couch and a pool table. Because Jane Doe and the defendants were minors at the time, the videotape showing them has not been shown to the public.

A prosecution neurologist testified that Jane Doe appeared asleep on the video, flopping “like a rag doll” in response to the boys’ movements. But Dr. Peter Fotinakes conceded Wednesday that it was impossible to tell from the video whether Jane Doe was faking unconsciousness.

Middleton said Fotinakes was one of his most effective witnesses.

“I think he was very good at communicating to the jury that you don’t need special education and training in order to see that the victim is passed out,” the prosecutor said outside court.

On Monday, defense lawyers will call several of Jane Doe’s former friends who are expected to testify that she is a promiscuous liar who thought crying rape was a good way to get sympathy gifts. Other defense witnesses will include a neurologist who is expected to try to negate the prosecution expert’s testimony that the girl was clearly passed out.

In their cross-examination of Jane Doe, defense lawyers repeatedly questioned her about the statements she had made in her first interview with police after the alleged rape and in the first trial -- many of which differed from what she said in the ongoing case. For example, in talking about what she drank the night before the July 5 party, she reduced the amount from 10 shots of rum and one shot of tequila to about half that amount.

She also conceded repeatedly lying to her parents, having consensual sex with Haidl even though he was dating her best friend, and swimming nude with Nachreiner within an hour of meeting him.

“They’ve attacked her credibility fairly successfully,” Middleton said. “The one thing that she’s very consistent with is her display of emotions, and she hasn’t wavered that she does not remember what happened.”

The three defendants and Jane Doe lived in Rancho Cucamonga in 2002, but Haidl has since moved to Orange County.