Newport Sex Convict Says the Law Did Him Wrong

As a yacht broker, Daniel DeHaven had a reputation for honesty. He has raised four children and bought as many homes.

His only scrape with the law was 48 years ago when, as a teen-ager, he went for a joy ride in a neighbor’s car. Longtime friends say they have never known him to be violent or sexually aggressive.

But in May, 1989, DeHaven was convicted of armed robbery, sexual battery and the attempted rape of a young woman in a dim Newport Beach parking garage. He served about six months in Huntington Beach City Jail and was released in August. But he has not walked away.

With the help of friends, family and a veteran investigator from the Orange County public defender’s office, DeHaven has launched a legal offensive to clear his name in a case with virtually no evidence against him except that based on the victim’s word.

“I’ll never forget the day the jury came back,” DeHaven recalled. “I stood facing them and I told my lawyer they look grim. ‘They sure do,’ he said. The verdict was unanimous. I said over and over, ‘How could they do this to me?’ ”

Allegations of misconduct by Newport Beach police, including the planting of evidence and the improper influencing of the victim, have been lodged with the Orange County Grand Jury. Although grand jurors will neither confirm nor deny they have opened a case, John K. Depko, the public defender’s investigator working with DeHaven, said he was told by the panel’s secretary, Mary L. Hennessy, that the matter was pending as of last week.

DeHaven is also seeking a new trial before the 4th District Court of Appeal, alleging a host of problems with the case. In March, the Orange County district attorney’s office was presented with a detailed report. A lawsuit seeking $15 million in damages for alleged civil rights violations is being prepared.

The question is whether DeHaven, now 65, was mistakenly identified by the 25-year-old victim, who tearfully testified during a day and a half on the witness stand that he accosted her at knifepoint almost two years ago.

Police and prosecutors steadfastly maintain that the retired yacht broker is guilty of the crime. Although they admit that mistakes were made by an officer assigned to the case, they say that investigators did a thorough job.

Above all, the victim’s “credibility was phenomenal,” said Deputy Dist. Atty. John Anderson.

“She was sure about it. It’s twisted the way the defense is now trying to portray the inconsistencies in this case. They argued all this and the jurors listened to them and judged them. They simply said, ‘We don’t believe you.’ ”

The evidence against DeHaven, then 62, was based almost solely on the statements of the victim, a Greek immigrant whom investigators noted had difficulty speaking English.

She was attacked about 12:30 p.m. on Jan. 5, 1988, as she sat in her 1978 BMW 320i in the dimly lighted parking garage of the South Oakwood Apartments.

To this day, she remains sure that DeHaven was her attacker.

“Absolutely, he is the one,” she said in a telephone interview Saturday. “I have stayed locked in my house. I am afraid to go out sometime. I hear something behind me, I look over my shoulder. I saw him and what he did to me. He was in my car. I’m sure.”

But DeHaven has said from the beginning that he is innocent, and at his trial, two witnesses testified that they were having lunch with him at the time of the attack.

He and Depko maintain that he was convicted in part because police ignored their own policies and sound investigative techniques in making the case.

Among their claims:

* Police used questionable methods to attempt to link DeHaven to a home burglary that occurred shortly after the sexual assault. Depko said he found evidence of “repeated and calculated violations of normal police procedure” in what he believes was an attempt to discredit DeHaven.

* An adequate fingerprint check of the vehicle in which the sexual attack occurred was never made.

* Identification by a photograph of DeHaven in the sexual assault case was obtained in apparent violation of department procedure.

* Investigators allegedly ignored contradictions between the victim’s description of physical evidence and items obtained from DeHaven.

“I have worked on 2,000 cases in my career and this is the only one where I feel the defendant is innocent,” Depko said.

The controversy about the case first surfaced in the middle of DeHaven’s trial.

Papers from a burglarized apartment were found inside a gray jacket presented in court as evidence. According to police records, no such documents were ever reported to be inside DeHaven’s jacket at the time of his arrest on Jan. 18, 1988.

The records were a health insurance identification card, a credit card receipt and a temporary Texas driver’s license belonging to Carey Lynn Baker, whose Newport Beach apartment was burglarized 10 days after the armed robbery and attempted rape.

Two months before DeHaven’s trial, Depko said, he thoroughly searched the jacket in the presence of police. According to his report, he did not find any documents belonging to Baker and was assured by police there was no more evidence.

Depko said his suspicions of police misconduct were reinforced by Baker’s description of the way police questioned her about the burglary. She told Depko that police tried to influence what she said and wanted her to pick out a picture of a suspect that clearly did not match the description of the man she saw in her apartment.

According to Depko’s report, Baker said all the men police showed her in a photo folder, including DeHaven’s picture, were too old. When she was told to pick one anyway, she chose someone other than DeHaven. Baker recalled that police then told her she had picked the wrong man.

“In my 15 years in the criminal justice system, (the officer’s) handling of this photo-lineup with Baker is the worst example of blatant attempts by police to change a witness’s testimony,” Depko wrote. “Had he succeeded in twisting Baker’s memory, he may well have obtained the false identification of an innocent man.”

Depko contends that if Baker’s documents were found during DeHaven’s arrest, he should have been booked for investigation of burglary or possession of stolen property at the least. DeHaven was accused of neither.

Newport Beach Lt. Tim Newman, a police spokesman, said the Baker documents were in the jacket at the time of the arrest but not recorded because the papers were taken out to be photographed and then mistakenly placed in a separate evidence locker. Some time before DeHaven’s trial, the documents were found and put back in the jacket.

According to police, the officer involved was disciplined for the error.

“Our employee made a mistake and did not thoroughly describe all the evidence that was located,” Newman said. “It was an error. We screwed up. . . . Steps were taken to make sure it doesn’t happen again.”

Newman said that it was logical and proper for police to question Baker about DeHaven after his arrest because he lived in the area and there might have been some similarities with the suspect’s description. He denied any impropriety.

Police also have told the Orange County district attorney’s office that Depko missed the documents in the jacket during his search and that DeHaven was questioned about the papers after his arrest.

Deputy Dist. Atty. John Conley, who talked to the police and reviewed Depko’s detailed report, concluded that the prospect of planting evidence was remote. “. . . Mistakes were made, but no deliberate wrongdoing occurred,” Conley said.

But Depko, DeHaven and his supporters contend that violations of Newport Beach police policies and indications of incompetence extend well beyond the Baker documents and into the heart of the criminal charges--the victim’s recollection.

“Obviously, it is very disturbing. When I read the case it caused a natural uneasiness,” said Jack Earley, a private defense attorney who represented DeHaven for a while. “It is a very weak ID and he has about as strong an alibi as you can see. Wrong IDs can cause horrible injustices.”

Depko has raised questions about aspects of how DeHaven was identified--procedures used when the victim spotted him in a shopping mall and the way she was subsequently shown a photograph of DeHaven at police headquarters.

Records indicate that after the attack, Newport police received four reports from patrol officers, the victim and one of the victim’s co-workers who thought they had spotted the suspect. One of them was a man with a “balding spot” and tan jacket. The victim, who became “very upset,” was “positive” it was her assailant. DeHaven has no balding spot or tan jacket.

DeHaven officially came into the picture while the victim was working at Atrium Court in Fashion Island on Jan. 18, 1988. Police were already in the shopping center, responding to the sighting of the man with the balding spot.

While talking to a detective, the victim looked up, pointed out DeHaven on the second floor more than 100 feet away, and said, “My God, he’s back! There he is!” According to a police report, she became visibly upset.

DeHaven was arrested, but never taken any closer to the victim for inspection, Depko said, noting that proper field identifications are usually done from a few feet away.

Later, the victim was shown only a photograph of DeHaven, which she identified as a picture of her attacker.

The use of one photo is contrary to Newport Beach Police Department policies designed to prevent victims and witnesses from making biased and unreliable selections of suspects. Among other things, at least six photographs must be presented and they have to show similar-looking people, department rules state.

“If they (police) would have shown her a full photo lineup, she probably would not have identified him,” Depko said. “With only eyewitness testimony, you must be extremely scrupulous, but they ignored key contradictions.”

But Lt. Newman defends the procedure used by police by saying that there may not have been any need to show the victim a full photo lineup because she seemed certain about her attacker.

“This was not an inappropriate police investigation. It was a good investigation and he was convicted,” Newman said. “A person incarcerated for a crime they did not commit is a bad thing, but a woman assaulted in a parking lot is a bad thing too.”

However, Depko said other incongruities spring from the details of the case.

Police records and court testimony indicate there are some similarities and differences between DeHaven and the assailant. DeHaven is the about the same size and has a mustache, as did the attacker, but did not have four to five days’ growth of beard at the time of the attack. His jacket is the same light gray color as the victim originally said the attacker wore, but has black zippers on the sleeves and a different kind of cuff.

Then there is the difference between the knife the victim originally described being used in the attack and the one DeHaven was carrying the day he was arrested.

The victim first described the weapon as a kitchen-type knife with a dark handle about 6 inches long. DeHaven, a yachtsman, carried a Buck pocketknife, which is about 7 inches long unfolded and has a handle of dark wood with brass fittings at each end and a piece of green tape around it. But when shown DeHaven’s knife at the Police Department, investigators said, the victim identified it.

According to police reports, the victim had “no doubt” about DeHaven’s jacket and identified the knife when police showed it to her. Later, during a preliminary hearing, she said she remembered the knife exactly and recounted the tape, the brass fittings and that it folded. Her original description never included those details.

Depko also noted in his review of the case that although the victim said the attacker touched the inside and outside of her car, police testified that they dusted only the outside of the vehicle for fingerprints and did not find any. Had the inside been checked, he said, DeHaven might have been eliminated as a suspect.

The district attorney’s office contends that all of the defense concerns were addressed at the trial during what the prosecutor described as “very thorough cross-examination.”

“You can’t explain away all the coincidences. It is nonsense to isolate one piece of the evidence. It is the combined effect that can’t be ignored,” Anderson said. “It’s the cleanest trial you can have--plain old witness credibility. This victim will go to her grave 100% convinced that this guy attacked her.”

DeHaven’s state-appointed attorney, Lawrence F. Salisbury, contends in his appeal, however, that the jury was improperly denied the testimony of 10 character witnesses that when combined with other testimony would provide enough evidence to support an acquittal.