"Now that this cat is out of the bag . . . I have to get out of this case," said a frustrated DeLeon, who scheduled a new motion hearing for March 17. Another judge will preside.
Harvey, 36, was a seven-year Police Department veteran on Oct. 9, 2009, when he allegedly masturbated in front of a 21-year-old woman after ordering her to strip naked and open her legs.
Harvey encountered the woman while he, Cahill and other officers from the 24th District in Kensington were conducting a drug raid at an abandoned house on D Street near Kensington Avenue.
The woman reported the incident that night and again the following day, when police took as evidence the pants that were allegedly stained with Harvey's DNA.
After an Internal Affairs investigation, Harvey was arrested April 21 and charged with indecent exposure, false imprisonment and official oppression.
On Jan. 21, the woman testified during the first day of the motion hearing, which was continued to yesterday.
She testified that she and a male friend had been in a second-floor bedroom, where they got high on heroin and cocaine and were about to have sex on a mattress on the floor when the cops burst in.
The couple got dressed, and the male friend was taken out of the room by two officers, while Harvey stayed in the room with her, the woman testified.
Harvey asked her several times where the drugs were, and she told him she didn't have any. He then told her to take off her clothes, she said.
"I figured, if I didn't get undressed, I was going to jail," said the woman, who cried and appeared unstable at times.
She said Harvey told her to spread her legs before he pulled down his pants and masturbated.
"Did you want this male officer to do that?" Foster asked.
"Ya, I begged for it - No!" the woman snapped.
After Harvey finished, she said, he told her to get dressed, threw $6 at her and told her to buy a pack of cigarettes.
When asked if Harvey had touched her, she said he had not.
"He was too disgusted to touch me, but he wasn't too disgusted to touch himself and ejaculate on my $70 friggin' pants," the woman said.
Yesterday, Kelly said it had not been proven if the DNA on the pants belonged to Harvey. "That would be a trial issue not a pretrial issue, if, in fact, it is his DNA."
The DNA evidence should be suppressed outright, Kelly said, because the warrant police used to collect a DNA sample from Harvey contained "material misrepresentation."
Foster, the prosecutor, said that despite the setback, Harvey will be brought to trial.
"There is a victim of a crime in this case," he said. "She is still horribly affected by what this defendant did to her on the particular night. I want justice to be done here."