Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (21 page)

Schwarzenbart sent Eisen a letter demanding a retraction of
Isthmus
’s “false and defamatory” statements regarding Riley. Having fought to keep the PFC from considering whether Riley broke the rules in his handling of Patty’s letters, he now wanted the paper to declare that Riley did no such thing. Eisen declined, although
Isthmus
ran a just-the-facts article on the PFC outcome. Schwarzenbart ended up billing the city for $22,226 in legal fees to defend against an action I spent $81 to present.

Even before the PFC issued its decision, Patty expressed interest in filing her own PFC complaint. I warned against it, knowing that she lacked the skills to navigate the commission’s user-unfriendly process.

In search of an alternative, I wrote Mayor Bauman, calling her attention to Patty’s efforts to protest how she was treated and force a new investigation into her sexual assault. I also indicated that Patty was considering her own PFC action. Was there maybe another way that was less costly and confrontational?

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Bauman, in reply, declined my suggestion that she meet with Patty, but suggested there was indeed another way: the case could be turned over to the Division of Criminal Investigation, part of the state Justice Department. Patty, apprised of this, immediately sent the police a written request, dated November 2, seeking a state investigation “of both my rape and the Madison Police Department’s handling of this case.”

Harlowe didn’t think this was a good idea, and he advised Patty against it. One of the “basic principles of criminal defense,” he told me, is “never invite an investigation.” There was no guarantee such a probe would lead to a satisfactory result. But Patty disregarded Harlowe’s advice. She wanted something done, even if it meant taking the enormous risk of trusting someone in law enforcement.

In mid-November Bauman released the results of the Madison Police Department’s internal probe into Patty’s case, conducted at her request by Assistant Chief Ted Balistreri. It was a remarkably threadbare report, barely more than a page. Balistreri said that, after talking to Nicks, Karofsky, Malloy, and Maples—but not to Patty or anyone who supported her—he was “confident that no wrongdoing occurred.” He said the tactics used to secure Patty’s confession were deemed legal by Judge Aulik and justified because “it was the opinion of our detective that ‘Patty’ was not assaulted and, hence, not a victim.” Riley did not appear to have broken any rules with regard to his handling of Patty’s letters, which did not strike Balistreri as being a complaint. Finally, he said, Patty had spurned Maples’s offer to discuss “the 41 points which led us to believe she was lying.” (These, I surmised correctly, were the notes Woodmansee had used during his meeting with me.) In conclusion, Balistreri said, “This entire matter has been taxing on many of us, including Patty. I can only hope that at some point we can all put this behind us and move on.”

Patty, after reviewing this document using a machine that magnifies type size, faxed the mayor a note: “I have seen the poor excuse for an investigation letter written to you by Ted Balistreri. Again, I cried. I’m terribly disappointed and I hope you are too. What investigation? I haven’t been interviewed yet, nor has anyone I know. What are the 41

points against me? No one has told me yet or questioned me for explanations.” She bristled at the “insensitive conclusion that I should simply put this behind me and move on,” saying she lived in fear for her safety,
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compounded by her fear of asking the police for help. She appealed to Bauman to reject “this joke of an investigation” and hold someone accountable for what occurred. “I honestly didn’t do anything wrong. I’m the victim here.”

Bauman replied by letter, dated December 9: “I am, of course, deeply concerned about your situation. The fact that you will never feel safe again and find yourself frightened to ask for help is not an acceptable situation. I hope that you will, at some time, be able to find closure with respect to many of these issues.” But not with any help from Bauman, who went on to “clarify” that Balistreri was asked to investigate only whether there was “any inappropriate action by any Madison police officers.” He found there was not, as did Judge Aulik: “As such there is nothing further that the Madison Police Department can or should do.”

Bauman said the matter was now in the hands of the Division of Criminal Investigation, which by this time “should have” contacted her. It had not.

Patty decided to file PFC complaints against Riley and Woodmansee. Patty’s brother Bobby, having no legal qualifications or skills, agreed to represent her and I agreed to help in a limited capacity. The three of us got together to draft the complaints. Patty’s complaint against Riley was mostly a reiteration of my original, only this time from someone with “standing.” Her complaint against Woodmansee alleged violations of department rules against lying, discourtesy, “overbearing, oppressive and tyrannical” conduct, and failing to file complete reports—that is, not mentioning his use of lies and deception. Bobby had gone to the public library and reviewed the police department’s policies and procedures manual, jotting down the rules he felt had been broken.

Patty delivered both complaints to the PFC in mid-December, along with a note. “I’ve tried [sending] letters to anyone I thought would listen, to no avail,” it said. “I’ve asked the department to investigate, but they haven’t. I’ve asked the mayor to help, but she’s refused, urging me to ‘move on.’ My New Year’s resolution is to quit crying over this devastating year and fight back. Only then will I ‘move on.’”

a g a i n s t a l l o d d s

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Healthy Outrage

Patty was in over her head, and she knew it. The Madison Police and Fire Commission, contrary to its statutory charter, had evolved into a forum that only a lawyer could love. Patty and Bobby were ill equipped to conduct discovery, defend against motions, prepare legal briefs, and subpoena and question witnesses. Riley and Woodmansee each had lawyers, paid for by the city and police union, respectively, authorized to devote as many billable hours as necessary to defeat Patty’s complaints.

And that’s what they set out to do.

Riley, through attorney Schwarzenbart, submitted a baleful affidavit: “I am surprised in her decision to file charges given that she was present during undisputed testimony in the [earlier] matter that upon my receipt of her letter in late October 1997 I had spoken to my commanding officer, Captain Jeff LaMar, [who] agreed with my assessment that the letter should not be treated as complaint requiring referral to the Professional Standards Unit.” Riley’s recollection of this conversation was now fully restored. Chief Williams, also via affidavit, echoed

“disappointment” over Patty’s complaint and certified Riley’s recent retirement, meaning he was no longer subject to PFC discipline.

Patty and Bobby prepared a discovery request. It asked whether Woodmansee was aware of and obliged to follow department rules regarding truthfulness, discourtesy, “tyrannical, overbearing and oppressive conduct,” and filing complete, accurate reports. It also asked about the various things he’d done that appeared to violate these rules, such as lying about rubber residue and then not mentioning this in his report.

Finally, it sought certain documents, including his list of forty-one 149

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points. Woodmansee’s attorney, Gary Young, thumbed his nose at this request, contending that making his client comply with discovery was like compelling him to testify against himself.

But Young did produce a voluminous reply to Patty’s complaint. It denied that she was a victim of sexual assault, saying she had admitted lying about this in what Judge Aulik deemed a voluntary confession. It confirmed that Woodmansee had brought up Patty’s past suicide attempts and raised the prospect of holding her on “suicide watch,” but claimed this was done in a caring rather than coercive way. Young’s filing argued, essentially, that the Madison Police Department rule requiring officers to be truthful “at all times and under all circumstances”

did not mean what it said, in light of police practice and Judge Aulik’s ruling, which was attached. And it challenged her standing to complain, saying she was not an “aggrieved person” within the meaning of the law. Was anyone?

Even before she undertook the painstaking task of reading this document on her visual-aid machine, Patty knew she needed help. “I don’t think I can do this,” Bobby confided, perhaps a bit late. Patty asked an attorney friend if he could represent her. He declined, but suggested an acquaintance named Mike Rieselman, formerly an attorney in California. Rieselman, on hearing details of Patty’s case, was immediately interested—not in the PFC process but in filing a lawsuit.

Rieselman, then thirty-five, fancied himself a “civil rights lawyer”

and boasted that he had taken eight cases to jury trial in three years in California, winning one of them “without any evidence.” But then his marriage ended, his luck went south, and he ended up in Madison, doing odd jobs. Rieselman thought the PFC was a waste of time, especially since complainants could not get compensation from which to pay attorney fees. He was also worried about his ability to appear before it, because he was not licensed to practice law in Wisconsin. Late in the afternoon of January 11, 1999, less than an hour before the PFC’s initial hearing on Patty’s complaints, Rieselman called an acquaintance, Mike Short, who had a Wisconsin bar card.

Michael John Short, also thirty-five, was a Wisconsin native and UW–Madison graduate who had tried his hand at various jobs before heading to Gonzaga University in Washington State for his law degree.

He put in a year each with the public defender’s office in Spokane and
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as a criminal defense lawyer in Reno. Returning to Madison in late 1997, he passed the Wisconsin bar exam and began taking cases, working out of his apartment. When Rieselman called out of the blue to see if Short could hightail it to the PFC proceeding, Short said he didn’t think so. But the call piqued his curiosity—he was aware of Patty’s case from my articles—and his sense of obligation. He found himself rushing to the City-County Building. Rieselman was surprised to see him.

At this hearing, Schwarzenbart sought dismissal of Patty’s complaint against Riley on grounds of “jurisdiction and mootness,” since the PFC’s authority to impose discipline ended when Riley retired. The PFC was inclined to agree, but gave Patty’s attorneys—already she was treated as a nonplayer in her own complaint—a couple of weeks to object. Young asked to delay setting a hearing schedule because Woodmansee was out of state. The PFC granted this request but sought assur-ances from both sides that the matter would be handled expeditiously.

Short piped up: “Our intention is not to drag this thing out any longer than necessary.”

And so it was that Short found himself getting pulled into Patty’s ordeal. Part of it was personal: his sister had been sexually assaulted nearly two decades earlier by a member of the state legislature, and the incident turned into a painfully high-profile case. Short met with Patty privately and became convinced she was telling the truth. He was shocked when he read the police reports, suppression-hearing transcript, and Aulik’s ruling, and angered when he watched a videotape of the PFC hearing at which Karofsky gave her imperious testimony and received the high five. In short order, Patty’s determination to fight back became his own.

Others were also taking up the cause. Bobby sent a scathing letter to Mayor Bauman, saying her lack of willingness to get involved left him

“completely disgusted.” He challenged her to conduct “a truthful and complete investigation.” Bauman did not respond.

Cami, the local woman who had taken an interest in Patty’s case, also sent the mayor a letter, with copies to thirty-eight city officials and members of the media. “I am afraid for our community,” she wrote.

“I’ve read documents and transcripts concerning the case, attended Patty’s [suppression-motion] hearing last summer as well as the recent PFC hearings. I’ve listened to police officers contradict themselves and 152

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each other. In the meantime, Patty’s story has withstood scrutiny.”

Cami concluded by declining to apologize for appearing overbearing:

“At this point, I prefer healthy outrage to the sickening cynicism and indifference which has so far prevailed.”

On February 5 Bauman wrote Patty offering “the opportunity to meet with me, one-on-one, so as to, if possible, bring closure to some of your issues.” On the same day, the mayor asked Assistant Chief Balistreri for an update on the involvement of the state Division of Criminal Investigation. The agency had yet to contact Patty, more than four months after she requested an investigation. Bauman also replied to Cami, tersely declining to discuss the case “with you or any other unau-thorized representative” of Patty. She demanded that Cami identify

“your interest in this matter.”

Cami wrote back to Bauman (and the thirty-eight others), expressing “surprise that I should need to identify myself as anything other than a citizen of this community in order to be heard and answered by my elected representative.” She blasted the mayor’s attempt to dodge the issue and chided her “inability to believe that there are members of this community who actually care whether or not a rapist is on the streets due to the police department’s persecution of one of his victims.” Bauman also answered this letter, saying the matter had been thoroughly reviewed: “While you, Patty, and perhaps I may not agree with the manner in which Patty’s case was handled, the fact appears that it was handled in accordance with normal policing policies.” (Cami remained outraged, but subsequently fell away from involvement in Patty’s case.)

The meeting between Bauman and Patty took place in late February. Rieselman and Short accompanied her and met with the mayor beforehand. Rieselman mentioned the possibility of a federal lawsuit and said he wasn’t sure how much influence the mayor had on such matters. Bauman replied that she was the Madison Police Department’s

“commander-in-chief.” The mayor then met with Patty. She said she could empathize with Patty’s enduring fear, since she herself was afraid of elevators and store escalators, due to past bad experiences. She made no promises to do anything and suggested that the way for Patty to achieve “closure” was to leave the past behind. Then she gave Patty a hug. The meeting was over.

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The PFC dismissed Patty’s complaint against Riley, saying it lacked

“subject matter jurisdiction” to discipline a retired officer. Young filed a motion seeking to limit the issues in Woodmansee’s case to those “not already decided by Judge Aulik.” At a subsequent hearing, Short objected, noting that Aulik’s ruling was “not a final adjudication.” It could have been appealed and overturned, had the dismissal of charges against Patty not made this unnecessary. The PFC asked both sides for briefs on whether it should relitigate issues “already decided” by Judge Aulik.

Rieselman and Short agreed to work together as co-counsel, which proved immensely difficult. They had markedly different personalities—

Short was likable and optimistic, Rieselman dour and peculiar—and different notions about how to proceed. But both were driven by a sense of outrage. “The whole thing’s offensive to me,” said Rieselman. “With these guys still claiming she’s lying, she has to be vindicated.” And they both saw the PFC as a weak means to this end. “I don’t think the Police and Fire Commission has any credibility to be ruling on this matter,”

said Short. “I don’t think we should be monkeying around with the PFC.”

On February 26 the two Mikes withdrew Patty’s complaint “due to limited resources and the PFC’s legal responsibility to fully investigate this matter.” Their client, they said, “simply cannot afford the cost of discovery disputes, trial preparation and trial, especially given that the Respondent apparently intends to spend unlimited amounts of time and money in an effort to keep the PFC from hearing evidence in this case.” They asked the commission to investigate on its own authority, as state statutes and the Madison PFC’s own rules expressly allowed.

“Woodmansee’s report on this case and his testimony at the motion to suppress hearing in the criminal case prove his misconduct beyond any doubt,” the attorneys wrote, calling on the PFC to “appropriately punish” the detective “for the outrageous injustices visited upon and suffered by the Complainant.” They promised that Patty would “cooperate fully with such an inquiry.” The PFC scheduled another hearing to take this up.

In the meantime, I set out to obtain Woodmansee’s list of forty-one points. The police department initially rejected my request, saying these were “the personal notes of Detective Woodmansee to refresh his recollection in separate meetings with you and the district attorney’s office,”

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and as such were exempt from the open records law. But eventually the department, whose previous interpretations of the law had resulted in two lost lawsuits and $96,000 in assessed legal costs, relented.

The released document was as insubstantial as I remembered from my session with Woodmansee. Among the items: “Expressed no emotional reaction to being in the room where the alleged assault took place”; “We spoke for over 40 minutes when she tells me that she made a mistake and is talking about the previous week”; and “Stated that she went to bed with her clothes on and this was unusual for her.”

Some of Woodmansee’s points were factually incorrect. He said the rapist, if one existed, had mysterious prior knowledge that Patty’s brother picked her up for work; yet, according to Woodmansee’s own report, this was something Patty told the rapist. Some were absurd, including Patty’s failure to “call out” to Misty—as though waking her daughter while a knife-wielding assailant was still in their apartment was clearly the most logical thing to do. Several centered on Patty’s reactions, like calling her assailant “almost sympathetic” and laughing as she related embarrassing details.

In early March, five months after her request, Patty was contacted by Elizabeth Feagles, a special agent with the state Division of Criminal Investigation. Feagles said she was reopening Patty’s original sexual assault. And while she would not be investigating the detectives’ conduct, as Patty had wanted, Feagles promised there would be no further involvement by the Madison Police Department. Replied Patty, “That would be nice.”

Feagles, a twenty-two-year veteran, and another female agent, a trainee, met with Patty at her apartment on March 9. (Misty had recently gotten her own place, resulting in greatly improved relations between mother and daughter.) Short was also present. It was the first time Short had heard Patty describe the assault; he was struck that it was identical in every particular to what she earlier told police. For a person who had been raked over the coals for alleged inconsistencies, Patty was remarkably consistent.

The meeting lasted about three hours. Patty again identified Misty’s former boyfriend Lonnie as a possible suspect. Both Patty and her attorney came away thinking that Feagles believed Patty and was determined to conduct a thorough investigation. But Feagles was skeptical of
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Patty’s account. She would note in her case report that, in relating how her assailant seemed to almost fall asleep when she was gratifying him orally, Patty had joked, “Don’t tell any of my future dates.” Was this the kind of thing a rape victim would say?