Let’s start with the obvious for any ignorant Southern California men: It’s unlawful to have sex with an unconscious person. That means you can’t lure a 16-year-old girl to your Corona del Mar ocean-view home, get her heavily intoxicated on booze and dope, strip off her clothes, engage in intercourse and oral copulation, and then toss her limp body on a pool table where you repeatedly plunge a Snapple bottle, apple juice can, lit cigarette and pool cue into her vagina and anus. Also? It probably won’t help your defense if you videotape your conduct as you laugh about the girl’s unconsciousness, slap and pinch her breasts, ejaculate on her and then accidentally lose the 21-minute film—that eventually lands in the custody of the Newport Beach police.
But, because this is America, you can hire lawyers to argue—with straight faces—that the unconscious girl actually raped you. You can simultaneously claim, in the alternative, that the girl would have given consent for sex if she’d not been in a near-comatose state. Or, that the requirement for prior consent was technically satisfied when the foreign objects penetrated her anus because you’ve found a doctor who’ll take money to testify that only a consciously willing asshole will accept the slightest intrusion.
In Orange County, that scenario isn’t the stuff of nightmares but an 8-year-old embarrassment known internationally as the Haidl Gang Rape case. It took an eternity to get here, but—like aged, brain-addled boxers who don’t know when to quit the ring—defendants Gregory Scott Haidl, Kyle Joseph Nachreiner and Keith James Spann may have finally thrown what should be their final, pathetic courthouse punches. Last week, an unsympathetic California Court of Appeal based in Santa Ana rejected the defendants’ hostile post-conviction cries of innocence—the ones asserted after serving relatively light prison sentences in the wake of their fake, teary pre-punishment-hearing confessions. The justices determined that the defendants’ latest flip-flop positions “are without merit.”
Last year, Haidl, Nachreiner and Spann filed their joint appeal in hopes of escaping mandatory lifetime sexual-predator registration requirements. They claimed that Superior Court Judge Francisco Briseño, OC’s most seasoned judge, had repeatedly denied them their constitutional rights by excluding exculpatory evidence and giving faulty jury instructions. Many of their arguments were couched in mind-numbing legalese that, even after having devoted nearly four years of my life to covering the case, I couldn’t figure out how in the world could be applied to the reality of events.
But their more meaty appellate claims surrounded a renewed effort to smear and blame the victim, a straight-A high school sophomore who was struggling to handle newfound access to drugs, alcohol and cute boys. Because Don Haidl—Greg Haidl’s daddy—was an assistant sheriff and used-car salesman worth tens of millions of dollars at the time of the July 5, 2002, crime, the defense’s attempts to beat the charges included shameless but well-funded efforts to intimidate the victim we’ll call Jane Doe. They hired teams of private investigators—including John Warren, a retired high-ranking FBI agent—to camp out at the girl’s house, tail her and her frightened parents, leak her status as a sex-crimes victim to her high school classmates, distribute fliers soliciting dirt on her and successfully lobby certain mainstream journalists to portray the case as simply a he said/she said dispute.
The shenanigans didn’t end there. They illegally distributed her confidential, personal medical records to reporters (including me) and called her “a slut” and “a whore” in open court. They got a Sheriff’s Department official to say he sympathized not with the girl or her family but with the elder Haidl. They hired Jo-Ellan Dimitrius, O.J. Simpson’s murder-trial jury consultant, to help pick the first jury—the numbskulls who couldn’t decide if the defendants were guilty of anything. They paid some of those jurors money to serve as consultants following the mistrial. They secretly got a lawyer to befriend Jane Doe to collect further intelligence on her activities. They hired Sharon Mitchell, the Hollywood porno star of more than 1,000 flicks including Both Ends Burning, Furburger and Gang Bang Girl, to testify that women in sex videos can trick the camera by feigning unconsciousness. They even made Jane Doe answer questions in front of a jury while they aired close-up footage of her post-rape vaginal exam by a sexual-assault nurse.
Yet, Haidl attorney Dennis A. Fischer claimed in his appeal that the defense hadn’t been allowed to attack the victim thoroughly enough during almost half a decade of contentious proceedings. Their key complaint surrounded Briseño’s refusal to allow Joey Cervantes to testify. The defense miraculously (forgive my skepticism) found Cervantes, Doe’s former classmate, in Las Vegas near the end of the second trial. They wanted him to testify that, prior to the gang rape, Doe had publicly put a lit cigarette and dildo into her lower orifices—an alleged incident witnessed by himself, Spann and Haidl. The implication was that two of the three defendants had good reason to assume the girl wanted other inanimate objects crammed into her body on the later date.
In desperation, the defense espoused an absurd proposition. Cervantes’ statement to Haidl lawyers included this: That while he was in the back of a vehicle having sex with Doe, he made eye contact with Haidl who was allegedly standing nearby enjoying the show. This claim was significant exculpatory evidence, according to the defense.
But the justices were disgusted.
“Any supposition that men can consent with a wink or a nod to pass women among each other sexually is not founded in the law of consent or in logic,” wrote Justice Richard M. Aronson on behalf of the three-member panel. “Because an alleged victim’s prior sexual conduct with others has little or no tendency in reason to prove subsequent consent to sexual relations with a defendant, [Briseño’s] exclusion of this evidence does not, as the defendants claim, violate their constitutional right to present a defense.”
Fittingly, the appellate court ended its 56-page ruling by mirroring sentiment originally opined six years ago in the pages of the Weekly. The overzealous Haidl defense team—which totaled more than 16 lawyers, including a retired state Supreme Court justice—had, like its clients, acted in testosterone-loaded fashion as it flagrantly violated standards of decency. According to the appellate justices, the defense was guilty of displaying “the chutzpah of a thief who demands a reward for returning the wallet he stole.”
Does that stinging rebuke finally close the book on the case? Maybe not. The defendants can now bitch to the state Supreme Court.
This column appeared in print as “Nowhere to Haidl: Appellate court rejects convicted rapist Greg Haidl’s (and his convicted-rapist friends’) unfair-trial claims.”
CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; obtained one of the last exclusive prison interviews with Charles Manson disciple Susan Atkins; won inclusion in Jeffrey Toobin’s The Best American Crime Reporting for his coverage of a white supremacist’s senseless murder of a beloved Vietnamese refugee; launched multi-year probes that resulted in the FBI arrests and convictions of the top three ranking members of the Orange County Sheriff’s Department; and gained praise from New York Times Magazine writers for his “herculean job” exposing entrenched Southern California law enforcement corruption.