At 7 p.m. on October 17, 1983, a man armed with a knife attacked an 18-year-old woman who was waiting for a ride home from a night school class at Del Mar High School in San Jose, California.
The man ordered her behind the building and forced her to disrobe and then tried to rape her. When he was unable to achieve an erection, he masturbated without ejaculating and then fled.
The victim helped police compile a composite sketch of a Hispanic man in his early 20’s, 5 feet, 8 inches tall, weighing about 150 to 160 pounds. She said he had a small moustache, brown hair and wore a nylon jacket, brown corduroy pants and a baseball cap. She said the attacker had a circumcised penis.
On April 1, 1984, a 40-year-old woman was jogging at the same high school when a man came up to her and put a knife to her throat. He forced her to disrobe and tried to rape her, but had difficulty because he could not maintain an erection. The attacker then walked away. The victim called out to two male joggers who were nearby and they chased the attacker, but the man got into a vehicle and escaped. The men did not see the license plate.
The victim said the rapist was Hispanic, about 25, 5 feet, 10 inches tall and 180 pounds with a slim build, curly hair combed back and blemishes on his cheeks. He was wearing a navy-blue hooded sweatshirt and brown pants. A composite sketch was drawn.
On April 18, a San Jose police officer saw the composite sketch from the first attack and thought it resembled Jose Luis Diaz, whom the officer knew from drug investigations he had conducted in the past. At the time, Diaz was 20 years old, 5 feet, 6 inches tall and weighed 140 pounds.
A photograph of Diaz was put in a photographic lineup and both victims identified him as their attacker. Diaz was arrested and charged with attempted rape while armed with a deadly weapon for the first attack and rape and sexual assault with a deadly weapon for the second attack.
He went on trial in Santa Clara County Superior Court in October 1984 and both women identified him as their attacker. One of the joggers who witnessed the second attack identified Diaz and the other said Diaz’s appearance was consistent with the man he saw fleeing from the second attack, but he couldn’t positively say it was Diaz.
On October 26, 1984, after 10 days of deliberation, a jury convicted Diaz of all charges and he was sentenced to 15 years in prison.
Diaz appealed and in 1986, the California Court of Appeals upheld the conviction. Diaz then filed a federal petition for a writ of habeas corpus alleging that there was insufficient evidence, in part because the first victim said her attacker was circumcised, but Diaz is not. The petition was denied in U.S. District Court and the Ninth Circuit U.S. Court of Appeals upheld the denial in 1989.
In March 1993, Diaz was released on parole. He then sought DNA testing, which was not available at the time of his trial, but the tests were no help. There was no biological evidence from the first attack and tests on evidence from the second attack revealed the DNA from only one man—the victim’s husband, with whom she had consensual sex shortly before the rape.
Criminal defense attorney Gerald Schwartzbach, at Diaz’s request, began re-investigating the case and discovered that in 1986, two years after Diaz was convicted, a law enforcement task force was created in Santa Clara County to investigate a series of unsolved rapes that began in 1982 and ended in 1987.
The suspect in these rapes was called the “Hooded Rapist” because he wore a garment with a hood in most, but not all, of the attacks. Ultimately, a total of 28 different unsolved assaults were believed to have been committed by the same person. The two attacks in Diaz’s case were not included in that total because the attacks were considered solved by Diaz’s conviction.
During that investigation, two composite sketches were created and most of the victims described their attacker as a Hispanic man in his early to mid-20’s, between 5 feet, 6 inches to 5 feet, 10 inches tall and weighing from 140 to 170 pounds.
Although not all of the attacks were identical, there were similarities—women were attacked while jogging or near a school, the attacker wore a hood and carried a knife, and the attacker had difficulty achieving an erection.
While DNA testing was not done in all of the suspected Hooded Rapist cases, testing was done on nine cases and in eight of the cases, the DNA profile was the same male. That profile was submitted to the Federal Bureau of Investigation’s computerized DNA database of convicted felons, but no match was found. Investigators came to believe the perpetrator had died.
Schwartzbach took the results of his investigation to the Santa Clara County District Attorney’s office and Deputy District Attorney David Angel, who headed the office’s Conviction Integrity Unit. During the prosecution’s reinvestigation, a composite sketch of the Hooded Rapist was shown to the victim of the second attack for which Diaz was convicted. The woman said that the person in the sketch looked more like the man who raped her than Diaz.
In September 2012, Schwartzbach filed a state petition for a writ of habeas corpus asking that Diaz’s conviction be vacated. The petition noted the similarities between the attacks for which Diaz was convicted and that the attacks which were attributed to the Hooded Rapist and which could not have been committed by Diaz because he was in prison.
Angel filed a response for the prosecution agreeing that the conviction should be vacated. “Had we known the facts about the ‘Hooded Rapist’ at the time of the original trial, we would not have filed charges,” the response said.
On September 6, 2012, Diaz’s convictions were vacated and the prosecution dismissed the charges. On April 9, 2013, a Santa Clara County Superior Court judge granted Diaz a certificate of innocence. Diaz filed a request for compensation from the State of California, which was still pending in April 2014.
– Maurice Possley