Rape Trial Witness Blocked

Defense lawyers in a high-profile Orange County gang-rape retrial will not be allowed to call a witness they recently found to testify about the alleged victim’s credibility, a judge ruled Thursday.

What the witness would have said about the rape accuser was not discussed in open court because its admissibility was being debated. But defense lawyers have said that the testimony of Joey Cervantes, a former classmate of the alleged victim, would have cast doubt on the prosecution’s case against the three defendants, one of whom is the son of a former assistant sheriff.

“The case, in essence, would be over,” defense attorney Pete Scalisi said before Thursday’s hearing, closed to the public so that details of Cervantes’ statements would not be disclosed.

Defendants Gregory Haidl, now 19, and Kyle Nachreiner and Keith Spann, both 20, are accused of sexually assaulting an allegedly unconscious girl, then 16, in July 2002. Each faces up to 23 years in prison if convicted.

When the defense begins its case Monday, its lawyers plan to cast doubt on the alleged victim’s testimony that she doesn’t remember a sexual assault. They say she was a consensual partner in the incident, which the defendants recorded on a videotape that has become the central evidence in the case.

The accuser, now 18 and called Jane Doe in court, has testified that she blacked out after drinking a can of beer and 8.5 ounces of gin within an hour.

Prosecutor Chuck Middleton has downgraded the importance of Cervantes, saying the witness would not have added much to the defense’s continued attack on Jane Doe.

Superior Court Judge Francisco P. Briseno seemed to agree in his statements before closing the courtroom.

“A great deal of evidence has already been presented” on her credibility, he said.

The judge also denied a motion by the Los Angeles Times, Orange County Register and Daily Pilot to view the 21-minute videotape. In asking that reporters be allowed to see the video, lawyers for the newspapers invoked 1st Amendment rights and the need for the press to accurately describe proceedings.

The newspapers’ motion took on further importance, lawyers said, because jurors from the first trial, last summer, were not able to reach a unanimous verdict on whether the tape showed an unconscious girl being raped or a consensual encounter.

In rejecting the request, the judge cited not just Jane Doe’s age and the tape’s “graphic depiction of sexual conduct” but possible repercussions.

“The media’s reaction to the video might be so intense that the potential for a fair trial might be seriously compromised,” Briseno said, without elaborating.