Beating Victim Irate Over Sailor’s Bid to Soften Conviction to Aid Job

Theresa Valenzuela said she was simply being nice to the young sailor who approached her in a Coronado bar one night last year. He appeared pleasant enough, Valenzuela said, and she listened to his conversation up to the point where he began discussing sexual fantasies.

At that point, Valenzuela said, she turned around and ignored the sailor, Theodore Fitzhenry, who finally walked away. But the night was still young.

According to court documents, a couple of hours after their conversation a drunken Fitzhenry followed Valenzuela as she prepared to leave and abruptly grabbed her buttocks while continuing to talk about sex. As she turned around to slap Fitzhenry, he pulled back and punched her. When she fell to the ground, Fitzhenry kicked her in the face. He then attempted to flee, but bar patrons who had witnessed the attack detained him until police arrived.

Admits to Drinking 14 Beers

For Fitzhenry, who admitted drinking 14 beers that night, there was never any question about his responsibility for the attack. In September, 1986, he pleaded guilty to felony assault but was spared a jail sentence by Superior Court Judge Richard Haden, who voiced his admiration for Fitzhenry’s Navy SEAL training and his solid upbringing.

At the sentencing, Valenzuela pleaded with Haden to put Fitzhenry in jail. Instead, Haden, who is a commander in the Navy Reserve, put Fitzhenry on probation and under strict supervision for a year, fined him $1,000 and ordered him to make restitution by paying into the state victims crime fund.

A disappointed Valenzuela said she was thankful nonetheless that the judge ordered Fitzhenry to make restitution. She said then she thought the unpleasant ordeal, which had begun with the attack on March 28, was finally behind her.

But 18 months later Valenzuela, 34, and Fitzhenry, 25, were in court again for a hearing that prompted Valenzuela to wonder out loud, “Just who is the victim in this case?”

Defense attorney Donovan Dunnion, appearing for Fitzhenry, used an Aug. 28 review hearing to plead with the court for a reduction of Fitzhenry’s felony conviction to a misdemeanor. Dunnion said that unless the conviction was reduced, Fitzhenry could not remain in the Navy and a member of the elite SEALs.

The request angered Valenzuela, who called the petition outrageous and an insult to the criminal justice system. The attack had left her scarred and traumatized, she said.

“He should be thankful that the judge did not send him to jail. I mean, this takes a lot of gall,” said Valenzuela, a veteran of four years as a Border Patrol agent.

Fitzhenry’s petition presented a difficult dilemma for Judge Haden, who declined to discuss the case. The probation report submitted by the defense to the court in 1986 was highly sympathetic to Fitzhenry. By all accounts Fitzhenry was a model son and sailor, never having been in trouble with the law before the beating he inflicted on Valenzuela.

A psychological evaluation and biographical data submitted by the defense at the sentencing indicated that Fitzhenry’s background is rooted in Middle America values and made him an ideal candidate for leniency.

A native of a small, rural Indiana town, Fitzhenry is the youngest of six children. According to the defense probation report, his 27-year-old sister suffers from multiple sclerosis. Before joining the Navy, Fitzhenry often helped his mother care for the bedridden woman, said the report. An older brother who was a West Point graduate and Green Beret in Vietnam returned from the Asian war “with a lot of problems,” the father was quoted as saying in the report.

But Haden still could not ignore the victim. An L-shaped scar on her right cheekbone and weekly sessions with a psychiatrist were constant reminders of the beating she endured, Valenzuela said. She was represented by the district attorney’s office at the August hearing and demanded the justice that she felt had been denied her.

“I want him in jail,” she said.

Fitzhenry did not return several phone calls by a reporter.

In arguing for a reduction of the conviction, Dunnion reminded Haden that his client had met all of the conditions that the judge imposed on Fitzhenry in lieu of a jail sentence. Justice cried out for a reduction to a misdemeanor, Dunnion said after the hearing.

But the judge also had before him a very bitter victim who was only slightly relieved when Haden politely declined to reduce Fitzhenry’s conviction “at this time.” Haden will consider the request again at another review hearing in December.

Dad Was a Deputy

“I come from a law enforcement family. I was brought up to believe in the system,” Valenzuela said. “My father is a retired deputy sheriff, and I was a reserve with Chula Vista police before I became an (Border Patrol) agent. But I think the system has failed me. Fitzhenry’s already been convicted. Why must we keep having these review hearings?”

When Haden sentenced Fitzhenry on Sept. 12, 1986, he expressed admiration for the young man’s

military record andtold Fitzhenry that he wanted to “keep” him in the Navy. The felony assault conviction carried a possible prison term of three years, but the prosecutor was asking for only one year in custody.

But if Fitzhenry spent 30 or more days in custody, he faced the possibility of ouster from the Navy. Navy officers refused to discuss the case but at the sentencing several sailors testified as character witnesses. Fitzhenry’s commanding officer called him one of the top 10 members of SEAL Team 3.

Citing the viciousness of the attack, prosecutors asked Haden to sentence Fitzhenry to jail. Instead, Haden gave the young sailor a 180-day work furlough sentence and later ordered him restricted to the Navy Amphibious Base at Coronado for an additional 180 days.

“Mr. Fitzhenry spent in effect a year in custody,” Dunnion said. “I think the judge was quite severe to Mr. Fitzhenry, and he had good basis for being so.”

Dunnion, who called Fitzhenry “the finest young man I’ve ever represented,” is defending Fitzhenry without charge. Dunnion, like Haden, is in the Navy Reserve. Valenzuela sees the case as “me against Dunnion, the judge and the Navy.” Dunnion, asked to confirm that he is in the Navy Reserve, said: “I will not comment on anything that has to do with the Navy.”

Dunnion said that “justice cries for eventual reduction of this case to a misdemeanor.” It would be a shame to “waste the military talents of Mr. Fitzhenry,” he added.

‘Other Cases’ Blamed

“We felt from the start that the district attorney was taking way too hard a position in this case. This young man was suffering the brunt of other highly publicized cases in the area,” said Dunnion, who declined to identify the other “highly publicized cases.”

Valenzuela said Fitzhenry has never expressed any remorse to her but Dunnion said that his client’s “attitude and demeanor have always been appropriate in this case.” A psychological evaluation done for the defense quotes Fitzhenry as saying that “I suffer from not ever having told that girl I kicked how sorry I am.”

“All I know is that he has never spoken a word to me since that night,” Valenzuela said. “At this point I couldn’t tell you what he sounds like. He kicked me in the face, ripped my cheek, gave me a concussion and then he walked away. And he’s a medical corpsman in the SEALs. A corpsman is supposed to help people.”

Fitzhenry and another fellow SEAL both admit grabbing Valenzuela’s buttocks on the night of the assault. Fitzhenry also admits making vulgar suggestions to Valenzuela but he said he reacted violently only when the woman slapped him.

According to a police report of the incident, Fitzhenry told the arresting officer that “he wasn’t accustomed to being hit, so he threw her on the ground and kicked her in the face.”

Dunnion defended Fitzhenry’s actions and said that “there is substantial evidence that he was provoked. All victims do not have zero culpability for their injuries.”

But Valenzuela said that she is guilty only of extending “common courtesy” to Fitzhenry, whom she had never seen before the assault. The two were introduced by another sailor who had accompanied Valenzuela and a girlfriend to the bar.

‘Just Being Polite’

“Fitzhenry was talking to me and I was just being polite . . . All I did was give him some common courtesy. That’s all I did. That’s what irritates me. I was nice to him. I was polite. I listened to him until he started making those suggestions about oral sex. Now I regret that,” she said.

Since the incident, Fitzhenry has paid about $4,000 in restitution to the state crime victims fund. The fund is supposed to reimburse Valenzuela for her medical costs, which have totaled more than $20,000 to date.

“I had just started dating again when this happened,” said Valenzuela, a single mother of a 15-year-old daughter. “But now I don’t feel good about myself. I’ve gained 35 pounds since then. And this scar, I’m always aware of it. I’m not comfortable. It’s hard . . . He took away my looks. Everyone says that they can’t see the scar very much. But I know it’s there. Has anyone stopped to think that my face was my best feature? I mean, look at the rest of me. I liked my face. I used to. I really did.”

She dreads coming to the next scheduled review hearing in December, said Valenzuela. Dunnion explained that the occasional review hearings were ordered by Haden, who “is interested in knowing how Mr. Fitzhenry is doing.”

“He is really doing fine, a fine young man . . . I think it’s time that justice prevailed in this case,” said Dunnion, who accused Valenzuela of “trying to extract more blood from this young man.”