Woman Beaten by Sailor Blasts Navy, Legal System : Justice: Woman beaten in bar says Navy and legal old-boy network protected her attacker and stalled her lawsuit against him.

In September, 1986, when her attacker--a Navy SEAL--received no jail time after beating her inside a Coronado bar and was praised by both a judge and his defense attorney, Theresa Valenzuela wondered out loud, “Just who is the victim in this case?”

Five years later, Valenzuela, a Border Patrol agent, is still asking the same question.

Despite a guilty plea from her attacker and a civil lawsuit filed against him, Valenzuela, 38, has failed to collect any damages from him. She is still waiting for the lawsuit to come to trial. The case has been making its way though the courts for more than five years, and in Valenzuela’s mind it may go on forever.

With the aid of attorneys, Chief Petty Officer Theodore Fitzhenry, 29, has used several court appearances to outmaneuver Valenzuela in Superior Court. Her chances of recovering any money from him received another blow during the summer, when he filed for bankruptcy in U.S. District Court and was transferred to Virginia.

Sharon Sherman, Valenzuela’s attorney, blasted Fitzhenry’s bankruptcy petition, calling it an abuse of the judicial system. The two women were interviewed recently in Sherman’s Coronado office.

“It’s a maneuver on the part of his counsel to avoid paying any money to Valenzuela. It’s legal, but an abuse of the system, because she is the only real creditor,” Sherman said.

Angry and frustrated, Valenzuela charged that the judicial system has failed her. Noting that, throughout “this ordeal” all her “opponents” have been males, Valenzuela complained that she is a victim of “the old-boy network.”

Although Fitzhenry pleaded guilty to a single count of felony assault, he never served a day in jail. Normally, convicted felons are not allowed to serve in the U.S. military, but Fitzhenry was not discharged from the Navy.

“The courts, the Navy, everybody looked the other way. It’s like this guy is somebody’s golden boy,” Valenzuela said.

Throughout the case, the judges and the courts have been more interested in salvaging Fitzhenry’s military career, she charged. Fitzhenry, an eight-year Navy veteran, was assigned to SEAL Team 3 in Coronado before he was transferred to Virginia.

“All I’ve ever heard from the beginning is people telling me that this is a poor guy who doesn’t have any money,” said Valenzuela.

“His counsel is continually telling us that we’re screwing up his career by continuing to pursue this (civil) lawsuit,” Sherman added.

Fitzhenry’s bankruptcy attorney, Thomas B. Gorrill, countered that Valenzuela rejected “a reasonable offer” from Fitzhenry, and charged that what she really wants is “a pound of flesh” from his client.

Fitzhenry could not be reached for comment.

After Fitzhenry’s guilty plea, the district attorney’s office asked Superior Court Judge Richard Haden to sentence him to one year in the County Jail, even though at the time the conviction carried a possible three-year prison sentence.

Haden ignored the prosecution’s request and instead sentenced Fitzhenry to a 180-day work furlough sentence, ordered him restricted to the Naval Amphibious Base in Coronado for an additional 180 days and forced the young sailor to pay a $1,000 fine. He also was ordered to pay $17,000 into the state’s crime victim’s fund.

At the time of sentencing on Sept. 12, 1986, Haden was a commander in the Navy Reserve and voiced admiration for Fitzhenry’s military record.

Fitzhenry’s criminal defense attorney, Donovan Dunnion, argued unsuccessfully for reducing his client’s felony conviction to a misdemeanor. At the time he represented Fitzhenry, Dunnion was also an officer in the Navy Reserve. He defended Fitzhenry without charge.

Valenzuela’s case, which received wide media coverage during the criminal proceedings, began on March 27, 1986. On that date, she had accompanied a girlfriend and another sailor to McP’s Irish Pub, a popular SEAL hangout in Coronado. The sailor introduced Valenzuela to Fitzhenry.

According to court documents, Fitzhenry admitted drinking 14 beers that night. During a conversation with Valenzuela, he began discussing sexual fantasies and made vulgar suggestions to the woman. Valenzuela, upset with Fitzhenry’s company, slapped the sailor when he grabbed her buttocks.

A police report of the incident said that Fitzhenry reacted violently to the slap. He told an arresting officer that he “wasn’t accustomed to being hit,” so he “threw her on the ground and kicked her in the face.”

Court documents said that Valenzuela was “stunned on her hands and knees on the floor” when Fitzhenry kicked her in the face. Another sailor who witnessed the incident said that Fitzhenry “kicked her like she was a football and he was going to put it through the goal posts.”

Early in the civil case, Valenzuela attempted to collect $300,000 in damages from Fitzhenry. While pursuing the sailor in court, she received a $75,000 settlement from the bar’s insurance company. According to Valenzuela, she paid $35,000 to her attorney and has used the rest of the money to pay for reconstructive surgery for her face and for continuing therapy.

“It wasn’t like I ever got that money to hold. I’m using that money to pay for therapy and for medical expenses,” she said.

According to court records, Fitzhenry attempted to settle Valenzuela’s $300,000 claim with an offer of $5,000 in exchange for a release from all liability. More recently, Sherman, Valenzuela’s lawyer, has offered to settle the case for $50,000, going so far as to agree to have Fitzhenry pay that amount in installments, without interest, over any length of time that he wishes.

Sherman said that Fitzhenry’s attorney rejected the proposal and instead increased his client’s settlement offer to $7,500.

A June 5 letter to Sherman from Fitzhenry’s civil attorney, Harry J. Carter, advised her that, if Valenzuela did not accept the $7,500 offer, “my client will have no choice but to file the (bankruptcy) pleadings as soon as practicable.”

Gorrill, Fitzhenry’s bankruptcy lawyer, said a “bad history” between Carter and Sherman hampered any hope for an out-of-court settlement.

“I don’t care about this case other than to try to solve a problem. . . . My client’s liability is clear,” Gorrill said. “What we’re trying to do in (bankruptcy) proceedings is continue on a restitution plan through a court order.”

Gorrill said that Fitzhenry is now paying $245 a month to trustee David L. Skelton, who is holding the money for Valenzuela’s benefit. Skelton did not return phone calls to his office, but, on Aug. 21, he filed an objection in Bankruptcy Court to Fitzhenry’s bankruptcy plan.

According to Skelton’s objection, Fitzhenry’s plan was “incomprehensible or internally inconsistent,” and it failed to show all projected disposable income for the succeeding three years.

Gorrill acknowledged the trustee’s objection to Fitzhenry’s bankruptcy plan, and blamed it on the failure to include 10% interest added to the creditors’ claims.

Court records showed that, when the bankruptcy petition was filed July 17, Fitzhenry owed $1,700 to a credit union and listed a $25,000 debt to Valenzuela, more than three times his final offer of $7,500. Those were the only creditors listed. The records also showed that his monthly gross income is $2,534 and his net income is $1,875.

“Pure and simple, this bankruptcy is an attempt by him to evade his legal responsibilities,” said Sherman. “It was not Congress’ intent, when it passed the federal bankruptcy law, that bankruptcy be used to deny a legitimate claim or as a delaying tactic in a civil lawsuit.”

The military usually does not look favorably on a serviceman who is convicted of a felony and who files for bankruptcy. Lt. Cmdr. Bruce Williams, a Navy spokesman in Washington, admitted that it is unusual for a sailor to remain on active duty after he has been convicted of a felony and files for bankruptcy.

“But a lot depends on the specifics of the case and the commanding officer’s recommendation. . . . If legal problems begin to affect a sailor’s readiness, particularly if he is a SEAL, he can be administratively separated,” said Williams.

In a December, 1987, court review of Fitzhenry’s felony conviction, a Navy spokesman said officials had decided to allow Fitzhenry to remain in the Navy at the urging of his commanding officer. His current enlistment ends on June 30, 1993.

Meanwhile, Valenzuela’s civil lawsuit remains on hold until Fitzhenry’s bankruptcy case is settled in federal court. So far, he has paid more than $14,000 of the $17,000 that Haden ordered him to pay to the state crime victim’s fund after his conviction.

“But he hasn’t paid me a cent or given me as much as an apology,” said Valenzuela.

Both Valenzuela and Sherman said Fitzhenry and his attorneys have consistently underestimated Valenzuela’s determination to pursue the civil lawsuit.

“It’s been about five years now. There seems to be a constant underestimation of (Valenzuela’s) resolve to have a court hear this case,” said Sherman. “ . . . If it’s not settled 10 years from now, she will still be here, waiting for him, hopefully in court.”

Valenzuela said there is another reason that she continues to pursue the civil lawsuit. To date, the crime victim’s fund has paid for almost $40,000 of her medical expenses. The fund has a lien on her lawsuit.

If Fitzhenry pays all of the court-ordered $17,000 restitution, she is still responsible for paying back at least $23,000. Unless she gets a judgment from Fitzhenry, she will have to pay the balance out of her own pocket, Valenzuela said.

Gorrill countered that Valenzuela “doesn’t really want justice.”

“Like I said before, she wants a pound of flesh. . . . There’s an unwillingness for reasonable minds to come together and solve the problem,” Gorrill said.

“He (Fitzhenry) has offered me $7,500. We’re only asking for $50,000,” Valenzuela said. “I think that’s more than reasonable on our part, considering that he kicked me and scarred my face, not to mention the emotional trauma that will never go away.”