Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (27 page)

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crime of obstruction. Whether or not she requested an attorney was irrelevant since her statements on October 2 were “never used against her as evidence in a criminal trial.” Even if Patty’s confession was coerced,

“her due process rights would not have been violated unless the confession was used against her at trial.”

In other words, Shabaz held that any police misconduct in securing Patty’s confession was absolved when prosecutors dismissed charges after their case fell apart. Police could deny citizens the right to counsel or coerce them into confessing so long as the evidence obtained was not used at trial. This interpretation, if consistently applied, opened to acute vulnerability one particular class of criminal defendant—the demon-strably innocent.

Shabaz, in reaching his decision, cited a 1992 federal appellate court case,
Mahoney v. Kesery,
which holds that even coerced statements do not violate the Constitution until they are introduced against a defendant in a criminal proceeding. But an equally applicable 1994 case,
Weaver v. Brenner,
says “use of the statement at trial is not required,”

only that there be some “use or derivative use of a compelled statement at any criminal proceeding against the declarant.” Arguably, charging a person with a crime counts as a criminal proceeding.

But Patty’s opportunity to argue her case had come to an end. She was out of money, and thus, in terms of her ability to navigate the justice system, out of luck. Short conveyed to Modl that his client could not afford to pay the defense’s legal costs, as Shabaz had ordered. The Axley attorney agreed to accept $1,500—on condition that Patty relinquish her right to appeal. Patty had to sign a document to this effect, and Short paid this amount.

The lawyers at Axley Brynelson billed the city’s insurer $98,617 to defend against Patty’s lawsuit, most of which went to pay their hourly fees. But picking this deep pocket was not a risk-free proposition. For one thing, it generated reams of information that supported Patty’s version of events. For another, although it continued to hire Modl for certain cases, the city’s insurer began referring most of its liability claims to another Madison law firm, which had argued that it could do the job for less. And this, from the point of view of the city and its insurer, was the only thing that mattered.

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“Shocked and Hurt”

In deposing Patty’s therapists, attorney Armstrong had shown keen interest in two areas related to Patty’s lawsuit. The first concerned his suspicion that someone else had put her up to it. “Do you know who told her to bring [this] lawsuit?” he asked Bartell, as though this could not possibly be her own decision. He also questioned Bartell and Moston about the psychological impact of suing—or being manipulated into suing—the police.

Moston said Patty’s ongoing legal battle “is making it very difficult for her to go in and really do the work that she needs to do” regarding the rape and her problems with depression and self-esteem. Instead, she had to be “on defense all the time,” unable to deal with anything else.

Bartell said what mattered most to Patty was not whether she won or lost but that “she tried as hard as she could to present what she believed to be the facts of her case,” in hopes that others would believe her.

As it turned out, Moston was right that Patty needed to process a lot of pain, and Bartell was wrong in thinking she would derive comfort in having done her best. Instead, the punishing ordeal that Patty endured, only to lose her livelihood and then her case, filled her with rage. Several days after Shabaz’s ruling, she sent an angry letter to Mayor Bauman.

“Congratulations!” the letter began. “As you know, the attorneys your city hired to protect the police officers who turned on me after I reported being raped did a fine job. They held back nothing, spent money like water, and used every rotten spiteful tactic in the book.” These lawyers, she noted, brought in Woodmansee, presumably at city expense, to sit across the table during her depositions. They “repeatedly suggested 189

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that I must have enjoyed being raped by my attacker, since I didn’t fight him” and “sarcastically mocked the heartfelt journal I wrote about the rape.” They grilled her about sex partners and other private matters.

“Even after all I’ve been through,” wrote Patty, “I was shocked and hurt that these tactics were used against me by lawyers representing the city of Madison.” She urged Bauman to ask the lawyers if they thought she was lying about being raped: “If not, why was it so important to you to make sure I didn’t even get so much as an apology over how I was treated?” She said the mayor ought to “hang your head in shame.

The message you’re sending to the women here and even the cops is unacceptable.”

Bauman, predictably, did not reply. It was typical of the indifference that would ultimately end her political career. (In the next election, she placed a distant fourth in the primary, garnering a mere 12 percent of the vote.) Patty sent a copy of her letter to
The Capital Times,
which did not publish it.

Kilmark wrote a letter of her own to the
Wisconsin State Journal,
detailing how Patty had been “doubted, accused, ridiculed, threatened—

all on top of being raped.” She urged the city “to publicly examine the whole process that occurred in this case. The citizens of Madison deserve to have their confidence in the system restored.” Kilmark’s letter was not published either.

The year after Judge Shabaz’s ruling would be one of the hardest in Patty’s hard life. Her business was lost, and her debts from the lawsuit would take many years to retire. There was no vindication, no partial victory, no sense that she had succeeded in holding the cops accountable. The experience taught Patty that right and wrong has little to do with how the justice system operates. What matters more is the ability of lawyers to manipulate the inherent biases of the system.

And yet there was a bright side. Patty had not buckled under nor caved in to Armstrong’s bullying. She remained steadfast and consistent, while demonstrating a far greater commitment to honesty than the police defendants or their lawyers. Mike Short had stood by her, as had Harlowe, Kilmark, her therapists and sisters, and even, for a change, her daughter.

Moreover, Patty believed that people on the other side knew she was telling the truth. How could they not? Which was more likely—that an

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emotionally fragile woman momentarily buckled under police pressure to confess? Or that she told the truth on just this one occasion and everything else—her reported rape, recanted recantation, private writ-ings and therapy sessions, letters of complaint, appeals to public officials, charges with the PFC, lawsuit against the department, and deposition testimony—was a lie?

Some months after the civil case, Kilmark was introduced to Armstrong at the annual assembly of Lutheran church representatives at a conference center in Lake Geneva, Wisconsin. Kilmark was president of her congregation, St. Stephen’s, and Armstrong was representing Bethel Lutheran. Because Modl had handled Kilmark’s deposition, she and Armstrong had not previously met, although he recognized her name in connection to the civil suit. “How is Patty doing?” he inquired warmly. Kilmark was nonplused and didn’t really answer. Armstrong hoped Patty was doing well. “I liked her,” he said.

Misty, after several unproductive semesters working toward a police science degree, abandoned her quest for a career in law enforcement.

She was evicted several times and was repeatedly charged with driving after revocation, which eventually led to her spending a week in jail.

A would-be suitor began stalking her, and she had to get a restraining order. But despite it all, Misty managed to be a caring mother to her young son.

Dominic, sadly, proved himself unworthy of the concern prosecutors had shown over his unfairly damaged reputation. In September 2000 he was charged with nine criminal counts for a series of events involving a former girlfriend, whom he had moved in with several months
before
he and Misty broke up, as she put it, “for good.” These charges included six counts of battery for times he beat her, one count of substantial battery for breaking her nose, and a felony reckless endangerment charge for holding a gun to the side of her head moments before it accidentally discharged. Dominic was convicted on four counts and sentenced to twelve months in jail.

That wasn’t the end of Dominic’s woes. In February 2001 he was charged in federal court for his role in a cocaine distribution ring that also involved his mother, father, sister, and former roommate Slim. The ring was busted by the Dane County Narcotics and Gang Task Force for which Woodmansee worked. Dominic was ultimately sentenced to 192

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109 months and sent to the federal penitentiary in Terre Haute, Indi-ana. His mother, Carol, formerly Detective Schwartz’s trusted source, was called “an evil, manipulative person” by the prosecutor and sentenced to thirty years.

Woodmansee, meanwhile, was a main player in a major undercover investigation of a local bar, Jocko’s Rocket Ship, long known as a hang-out for drug users. He posed as a customer and ingratiated himself to the bar owner and others, making repeated cocaine buys. After the bar was raided and closed, he conducted interviews with former patrons, including members of the Madison Fire Department. The firefighters were assured they were not targets of any criminal investigation and were warned about the dangers of not cooperating. Many ended up making admissions about their use of drugs, mostly marijuana.

The Jocko’s investigation resulted in federal drug conspiracy charges against nine individuals; all drew stiff sentences from Judge Shabaz.

In addition, a half-dozen Madison firefighters were terminated due to drug activity. On May 14, 2001, Woodmansee’s work on the case earned him a Meritorious Conduct Award. Drug team supervisor Lieutenant William Housley called him “an individual of uncompromising personal integrity and a police officer who holds himself to the highest professional ethical standards.” Woodmansee was not able to accept the honor publicly, given his ongoing involvement in undercover operations.

Within a month of this award ceremony, fate would deliver a crushing blow, one that made it appreciably more difficult for Woodmansee to claim that his handling of Patty’s case had produced the right result.

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Vindicated?

Most human DNA is the same from one person to the next. The science of using DNA (deoxyribonucleic acid) for identification purposes is based on finding genetic markers that show variation. In the early years of DNA testing, making matches was difficult and time consum-ing, although the results were highly accurate. A newer method, known as STR (short tandem repeat), can rapidly identify sequences of DNA from minute amounts of genetic material.

In moving to embrace this method, the FBI in 1997 selected thirteen core genetic markers on which to reconstitute its national database, the Combined DNA Index System. CODIS uses two indexes that can be compared against each other. The first contains DNA profiles from offenders in all fifty states. The second logs profiles from crime scene evidence.

Because the national data system based on STR loci did not become operational until October 1998, DNA obtained from offenders under existing state laws was entered only belatedly, as time and resources permitted. Thus a biological sample obtained in mid-1996 from a particular convicted Wisconsin sex offender was not analyzed for an STR

profile and put into the database until five years later, on May 29, 2001.

On June 11 special agent Liz Feagles was contacted by Marie Varri-ale, a forensic scientist at the Wisconsin State Crime Laboratory. Varri-ale informed Feagles that DNA from semen found on Patty’s bedsheet matched that of Joseph J. Bong. It was what’s known as a “cold hit.”

Bong, then twenty-five, was serving an eighteen-year prison sentence for armed robbery and false imprisonment stemming from events 193

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on September 12, 1997, eight days after Patty was raped. Also arrested in connection with this crime was Bong’s cousin Alonzo “Lonnie” Elvord, a suspect in Patty’s assault. The pair’s preliminary hearing took place October 1, the day before Woodmansee obtained Patty’s confession.

According to the police reports and testimony at this hearing, Bong and Elvord used a sawed-off shotgun to rob a hotel and abduct the female manager and her boyfriend, who happened to be present. Elvord drove the car, the boyfriend beside him in the front seat. Bong, holding the shotgun, sat in the back with the manager. Suddenly Bong grabbed her hair and pulled her head down toward his groin, just as Patty’s assailant had done, and began fondling her breast. The hotel manager screamed. The boyfriend lunged at Bong and managed to pry the gun away. In the ensuing struggle, the hostages fled the car and the cousins drove away.

Within a week Dane County sheriff ’s deputies tracked down and secured confessions from both men. Bong, in his statement, sought leniency for Elvord. “I talked Lonnie into doing the whole thing,” he said. “I got Lonnie drunk and high and he is not the type of person to do this.” Bong explained that the crime occurred after the two of them bought a quart of brandy and twenty dollars worth of marijuana and polished off a twelve-pack of beer. He later summoned a deputy to his cell to amend his statement: the pair had not actually paid for the marijuana, he now said; they ripped the dealer off.

Bong’s attorney, Mark Frank, tried to have his confession suppressed, saying his client, a diabetic, was questioned for more than four hours while authorities “failed to provide, refused to provide, or otherwise withheld insulin.” He said Bong had substance-abuse problems, a history of mental illness, below-average intelligence, and learning disabilities, “reading at approximately the second-grade level.” The deputies testified that he never said he was diabetic or asked for insulin. The judge declined to throw out the confession, and Bong pled no contest to one count of armed robbery and two counts of false imprisonment. The sex assault charge was dropped.