Judge allows tape in gang rape case

Deepa Bharath

A Superior Court Judge on Tuesday ruled that a digital videotape that

captured the reported gang rape of an unconscious 16-year-old girl is

authentic and can be used by prosecutors as evidence.

Defense attorneys for Gregory Haidl and Kyle Nachreiner, both 18

and Keith Spann, 19, contended that the tape, which shows the

incident in lurid detail, was stolen by an acquaintance of the

defendants and edited from its original version by San Bernardino

County Sheriff’s officials.

They argued that the tape, which shows the three teenagers

performing various sexual acts on the girl, is not an original and

therefore must be excluded as evidence. The incident reportedly

happened in July 2002 in the Corona del Mar home of Orange County

Asst. Sheriff, Don Haidl.

But Judge Francisco Briseno stated in a written decision on

Tuesday that he found the tape to have been “in the condition as

found.”

“It is reasonably certain that no alteration was made by third

parties or law enforcement,” he wrote.

The defense pointed out two “abnormalities” in the tape: 21 frames

of black and another 21 frozen frames, which created a fluttering

image when viewed.

Experts on both sides of the argument presented various theories

for what caused them, ranging from simply shutting off the camera

while recording to allegations that San Bernardino Sheriff’s

Department officials edited the tape.

Why the fluttering happened is a “toss up,” the judge wrote. But

it is clear that one of the defendants shot the video and lost the

tape, which was found by someone else, Briseno said.

“These circumstances together with the contents of the tape is

sufficient grounds to find that it is an original of the video lost

by the defendants,” he said.

The Orange County District Attorney’s office expected the

decision, spokesman Mark Macauley said.

“We are grateful to the court for the ruling to deny the defense

motion to exclude the videotape,” he said. “We agree with the court’s

ruling that the tape is authentic and is in the same condition as it

was found by a civilian.”

Defense Atty. Joseph Cavallo said he too expected the decision

because it was a tough burden to prove. But it will be different in a

jury trial scenario, he said.

“This case has two main pieces of evidence,” Cavallo said. “One is

the victim and the other is the tape.”

Both are weak, he said.

“The tape is incomplete,” Cavallo said. “And the victim lacks

credibility.”

Prosecutors consider the 20-minute videotape to be their key piece

of evidence, which they say clearly shows the victim unconscious and

being sexually assaulted with with a Snapple bottle, a juice can, a

lighted cigarette and a pool cue.

Today, the defense is expected to argue another motion asking that

the victim’s past sexual history be admitted into evidence.

* DEEPA BHARATH covers public safety and courts. She may be

reached at (949) 574-4226 or by e-mail at deepa.bharath@latimes.com.