Verbose testimony still stuck on tape

Lolita Harper

Technical lingo, semantics and meticulous lines of questioning

unveiled more ambiguity on Wednesday about the digital videotape that

captured an alleged rape, as a witness for the prosecution lent

credibility to both sides.

David Dustin, the owner of South Coast Studios, was hired by the

prosecution to inspect a digital videotape that shows the three

defendants -- Gregory Haidl, 18, Keith Spann and Kyle Nachreiner,

both 19 -- performing various sexual acts on a 16-year-old girl.

Dustin, who made his debut Wednesday morning as an expert witness,

said anomalies found on the videotape -- including black and frozen

frames -- were most likely the cause of simple mistakes and not

post-production editing. He said the digital videotape Deputy Dist.

Atty. Dan Hess plans to show the jury seems to be an original copy

and showed no signs of editing.

“The bottom line is that there is no evidence that [the tape] is a

copy and lots of evidence that it is an original,” Hess said. “[The

defense is] trying to create some wild conspiracy theory that doesn’t

exist.”

Video experts for the defense have testified that 21 frames of

black and 21 frames of a fluttering image, which were found in

different portions of the 60-minute tape, were evidence of tampering.

Defense attorneys are arguing that the videotape -- a key piece of

evidence that prompted 24 felony counts against the defendants --

should be excluded as evidence because of the alterations.

“My opinion is that the battery went dead and that is what caused

the fluttering,” Dustin said.

His testimony, however, was riddled with technical jargon,

probabilities and likelihoods that left his testimony susceptible for

a rigorous cross examination.

“There is a lot of ambiguity [in the digital industry] because it

is computer-generated and computers are constantly changing,” Dustin

said.

Veteran criminal defense lawyer John Barnett, who worked on the

Rodney King trial, pounced on the ambiguities in Dustin’s testimony

and had the prosecution’s witness agreeing with arguments that had

previously only been uttered by defense experts.

Barnett whittled the causes of the fluttering to two

possibilities: a power loss, causing the camera to shut down

different mechanisms at different speeds; or alteration. Dustin

agreed.

“One is not more reasonable than the other,” Barnett said. “These

are just the two ways we can look at the flutter.”

“Correct,” Dustin said.

Barnett also got Dustin to testify about the 17 minutes the

defense has claimed is missing from the tape.

“I found a gap in the date code of 17 minutes,” Dustin said.

“And one reasonable way to look at this is that 17 minutes have

been removed, right?” Barnett asked.

“Yes,” Dustin answered.

Hess said the defense attorneys were trying to play on technical

terms and twist Dustin’s testimony to fit their theories.

“It is important to note that the defense is trying to confuse the

issues with terminology,” Hess said later Wednesday evening. “Digital

editing is a very complicated issue, but now that we have seen all

the evidence, it is pretty simple to say that this is still the

original.”

Dustin explained that what he termed “gaps” in the tape were

breaks in the “data code” -- which is the mechanism in the camera

that tracks the time and date. Once the time is set by the user, the

camera automatically tracks real time, showing the time and date on

the screen, he said. If a person records at noon, stops for five

minutes and begins recording again from 12:05 to 12:10 p.m., there

will be 10 minutes of tape and 15 minutes of “data code” -- five

minutes of which are unaccounted for and called “a gap,” Dustin said.

“The defense was trying to confuse gaps in the tape with

extractions from the tape,” Hess said. “A gap in the tape means that

the defendants stopped recording, it doesn’t mean that any video was

edited out.”

Defense attorneys saw it differently, saying Dustin helped prove

what they have contended all along. Dustin could not rule out the

possibility that the tape originally stored the alleged incident --

not the tape that the prosecution is contending is the original --

had material taken out, then was copied to another digital tape and

pawned off as “the original,” Barnett said.

“That is exactly what happened,” Barnett said. “Exactly.”

Peter J. Morreale, the attorney for Keith Spann, said Dustin

bolstered the defense’s contention and that his attempts to backpedal

were in an attempt to “cover up.”

“He is just making it up now,” Morreale said. “He’s trying to find

excuses.”

Hearings in the Haidl case will continue today at 9 a.m. in Santa

Ana Superior Court, in room C45.

* LOLITA HARPER is the community forum editor. She also writes

columns Wednesdays and Fridays. She may be reached at (949) 574-4275

or by e-mail at lolita.harper@latimes.com.