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Ex-cop on Zoloft, mentally ‘unconscious’ during rape, lawyer says

May 15, 2012 |  8:59 am

Anthony Nicholas OrbanAttorneys for a former Westminster police detective will try to persuade a jury that he was under the influence of the antidepressant Zoloft and not responsible for the kidnapping and rape of a woman in 2010.

Det. Anthony Nicholas Orban was so overwhelmed by the prescription drug that he was mentally "unconscious" and "totally unaware of his actions," attorney James Blatt said outside a Rancho Cucamonga courtroom where his client's trial began Monday.

"But for the use of Zoloft, Mr. Orban would not have committed these acts," Blatt said. "Here you have a police officer and former Marine who for the last 10 years has been dedicated to protecting his country and protecting his community … this was totally out of character."

Orban's push for acquittal will have to overcome juror skepticism that has accompanied such defenses, as well as gripping testimony by the victim during her four hours on the stand Monday.

The detective is accused of abducting the then-25-year-old waitress, identified only as Jane Doe, on a Saturday evening as she walked to her car after leaving work at Ontario Mills mall. San Bernardino County Deputy Dist. Atty. Debbie Ploghaus told the jury that Orban, with his police service weapon drawn, forced the victim to drive her car up Interstate 15 to a self-storage facility in Fontana.

"I said, "Can I go now?,' " the victim said, recounting what happened when she parked. "He said there is something you need to do first. I think you know what it is."

For the next hour, she said, Orban sexually brutalized her in her SUV. At one point, the victim said, Orban snapped pictures with his iPhone, telling her to "smile for the camera," then sending the photos to a friend. He put a round in the chamber of his gun, then dragged the barrel down her cheek before sticking it in her mouth, punching her in the face and pulling her hair, she said. All the while, cars and pedestrians passed within feet of them, a security video from the storage lot showed.

When Orban took a call, she bolted from the car to a nearby liquor store, where the owner called police.

"I've had two years to think about this every day," she said at the end of the day's testimony.

Ontario police investigators found Orban's police pistol, with his name on it, inside the victim's car.

Monday's trial began when Orban's attorney told the court he intended to present a "not guilty by reason of unconsciousness" defense, a change in strategy that appeared to take the prosecution and judge by surprise. Blatt had been expected to present a "not guilty by reason of insanity" defense, which would require a separate hearing to determine Orban's mental capacity if the jury found him guilty.

The difference is significant. If found guilty but declared insane, Orban would have ben placed in a state hospital. If found not guilty by reason of unconsciousness, he would walk out a free man.

San Bernardino County Superior Court Judge Shahla S. Sabet barred Orban's attorney from introducing the unconsciousness defense until a special hearing can be held, possibly later this week. If that strategy is unsuccessful, Orban can still use the insanity defense.

Los Angeles criminal defense attorney Leonard Levine said attempts to prove temporary insanity, or temporary mental defect, are rarely successful.

"What you're really asking the jury to do is let you go free," said Levine, who has no ties to the case. "That's why, most of the time, juries are skeptical."

In 2004, a Santa Cruz man who beat a friend over the sale of a bike was acquitted of an attempted murder charge after his attorney argued that he had had an adverse reaction to Zoloft. A year later, a jury rejected a similar Zoloft defense in the case of a 15-year-old South Carolina boy who shot his grandparents.

Chris Loder, a spokesman for pharmaceutical giant Pfizer, which makes Zoloft, said in a statement that the antidepressant has been studied for two decades and that there was an "extensive body of science on its safety and its use."

A glimpse of the defense strategy became apparent during Monday's testimony when the victim told the jury that, toward the end of the attack, Orban started anxiously scanning the area outside the car.

"Then he looked at me and said: 'Who are you? How did I get here? Whose car is this?' " the woman testified. "He told me to put my clothes back on."

But a few minutes later, he sexually assaulted her again, she said.

The defense's strategy will be tested by a prosecution witnesses, Jeff Thomas Jelinek, who was a corrections officer at the California Institution for Men in Chino and a close friend of Orban. Jelinek had been drinking with Orban at the mall and was standing next to Orban when he abducted the woman at gunpoint, according to investigators and the prosecution.

Jelinek said he picked Orban up at the scene of the sexual assault and drove him back to Ontario Mills. Jelinek in 2011 pleaded guilty to being an accessory and agreed to testify against his friend.


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-- Phil Willon in Rancho Cucamonga

Photo: Anthony Nicholas Orban. Credit: Ontario Police Department