No tape for jury pool, judge says

Lolita Harper

The judge in the case of three boys accused of raping an unconscious

girl unofficially resolved Tuesday not to show potential jurors a

video of the alleged crime, saying it would allow them to prejudge

evidence before the trial.

Defense attorneys for Gregory Haidl -- son of Orange County

Assistant Sheriff Don Haidl -- Kyle Nachreiner and Keith Spann argued

that potential jurors should be shown the graphic videotape of the

alleged rape, which prosecutors say took place in Haidl’s Corona del

Mar home, to make sure they could see the most “emotionally charged”

evidence and still be open enough to hear the rest of the evidence.

The three men -- Haidl, 18, and Nachreiner and Spann, both 19 --

are accused of raping an unconscious 16-year-old girl in July 2002.

All three have pleaded not guilty to 24 felony counts. Their

attorneys have said that the sex was consensual.

“We have seen it time and time again where jurors will say, after

seeing a tape, ‘I will not be fair -- period,” said Barnett, who also

defended the officers in the Rodney King trial. “We need to know that

beforehand. We need to identify those people in advance to get a

panel that will be open-minded.”

The tape, which shows the defendants penetrating the 16-year-old

with a pool cue, cigarette butts, a lighter and other objects, is

powerful and emotional and has the potential to make jurors want to

find the defendants guilty without hearing all the facts in the case,

said John D. Barnett, the attorney for Nachreiner.

Barnett, who is familiar with video evidence from working on the

defense team in the King trial, said jurors will ignore instructions

to hear all evidence and vote with their emotions instead.

“They will not know that -- whether they can follow the rules --

until they see that tape,” Bartnett said.

Superior Court Judge Francisco Briseno said he was not making an

official ruling about showing the videotape during the jury selection

process, but he warned the defense team that he is “not inclined” to

show jurors evidence before the trial.

The judge said he did not take the defense’s position lightly, but

he argued it could take far too long to find jurors who would be able

to judge fairly based upon the images on the tape.

“Having heard your position, it would take me four weeks to go

through potential jurors,” Briseno said, adding that each side has

taken considerable precautions for selecting an unbiased jury.

First, jurors will be given a questionnaire, the contents of which

were not disclosed, but would work to evaluate how fair they could be

in a trial with evidence that contains “scenes of graphic sexual

content,” Briseno said.

The judge also said he would pull an “extensive number” of

potential jurors and search carefully for those who have not been

exposed to pre-trial publicity, “which this trial has seen much of.”

Briseno also noted that both sides have experienced attorneys who

would be able to select a fair jury.

Media coverage was also discussed Tuesday afternoon, as were

several other motions -- eight total -- none on which the judge made

official rulings. All parties were ordered to return today at 1:30

p.m. to discuss whether the search warrant that authorities used to

obtain the camera that contained the damning tape was legal and

whether the video itself should be admitted as evidence because of

claims that it was doctored.

Matters of media coverage, whether cameras will be allowed in the

courtroom and whether the tape will be shown to the public, will most

likely be addressed Thursday or Friday, Briseno said.

The remaining motions included requests to introduce the sexual

history of the alleged victim, to exclude Spann’s statement made to

police, and to quash various subpoenas, which will all be heard on a

date yet to be scheduled.

* 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 [email protected].