Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (36 page)

Final Judgment

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Patty was deposited, or even what it was: saliva, mucus, vaginal fluid, or tears.

Maybe Bong’s semen was on the bed because he and Misty had sex there. Ben Donahue even saw them in the act. What’s more, Donahue said he’d been there while Misty bought marijuana. That’s why Eisenberg had asked Misty about marijuana use. How else would he have known this? It was not in any of the police reports, not in any depositions. “I knew to ask her about it because of what Ben said.”

Patty said she changed her sheets two weeks earlier. But Kaddatz, Eisenberg claimed, had called Patty’s place “a pigsty.” (Actually, Kaddatz had agreed “generally” with Eisenberg’s characterization that it was

“pretty messy and unkempt.”) Maybe she hadn’t changed her sheets in a month. “There is reasonable doubt even to that piece of evidence, the DNA, and you know without the DNA, we’re not even here [in court],”

said Eisenberg. If there was reasonable doubt on this issue, the jury

“must” find his client not guilty.

Eisenberg then got to element three: Patty. For starters, there was the issue of her recantation. Detective Woodmansee confronted her for very good reasons, after consulting with other cops, and she admitted that she made it up. “I don’t have any idea whether [Patty] was assaulted or not,” Eisenberg told the jury. “I’m not going to sit up here and call her a liar. But to dump all this on Tom Woodmansee and paint him as the bad guy is really unfair.”

And what about Patty’s reaction to the case’s two main events? She was supposedly devastated by what happened on October 2. Yet after the rape itself she was “laughing and having a good time.” During the rape, she was thinking pretty clearly, trying to get her pants off so she could maybe run and suggesting that she go in the closet. Yet this “big, old, bad-guy policeman” gets her “so upset.”

Then Eisenberg took up the anal evidence. Having a penis stuck into her rectum should have been a “major problem.” Now the prosecution was suggesting the rapist used his own saliva, but Patty never reported that. The tiny scratch that was found “could have come from her wiping herself down there.” And then he took his penis from her anus and put it in her mouth? Wouldn’t that cause a gag reaction? Yet never in Patty’s accounts over “the last seven years” was this mentioned.

If the rapist was so worried about leaving behind spilled seed,
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Eisenberg continued, why didn’t he put the condom on earlier, and not just for the vaginal sex? There was no semen found on Patty, no foreign pubic hairs, no blood anywhere except on the pillow. There were no fingerprints. Patty once claimed the snooze alarm went off five times, later that it was once or twice.

Some reported rapes, Eisenberg noted, are unfounded. “Why do people make this up?” he asked. For a variety of reasons, including mental health issues, which it “was clear from the questions that Tom Woodmansee asked her” Patty had. After the alleged assault, she got to move in with Mark and “certainly got a lot of attention.”

Eisenberg shifted to his other defense strategy, that if Patty wasn’t completely lying maybe she was, in her initial suspicions, completely right. He pulled out a large chart listing the many ways Dominic fit what was known about the alleged rapist better than Bong. Patty told people she was sure it was Dominic. She even wrote her angry note.

The jury, said Eisenberg, should not hesitate to feel sorry for Patty. “I do,” he shared. “She’s had a difficult and tough life. But sympathy for her is not a reason to convict Joseph Bong.”

When jurors looked at all the evidence, Eisenberg said in conclusion, “you will find there is significant doubt, reasonable doubt, and you will find Joseph Bong not guilty of all the charges.”

Eisenberg had done a great deal of damage. His closing was master-ful. He had clearly met his much lower burden of establishing a basis for reasonable doubt. Schwaemle had one last chance to convince the jury of the strength of her case. Her rebuttal was crucial.

First off, the business about the tip. Maybe Misty had provided Bong’s name to police. Maybe she hadn’t. “What does it matter?” asked Schwaemle. She scoffed at the claim that Woodmansee’s failure to follow through would have been a career-endangering oversight. He had by this time concluded there was never any sexual assault. Why would he continue to chase after possible suspects?

Did Dominic do it? Dora testified he was at home. No evidence put him at the scene of the crime. Why did Patty accuse him? Because after the police stopped investigating, her sister convinced her. And then Misty, “trying to stick up for her boyfriend,” turned against her mother.

Said Schwaemle, “Look at the damage that was done to this family by the bad investigation of the Madison Police Department.”

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What about the testimony of Ben Donahue? When Feagles asked to talk to him, he refused: “Why is he unwilling to tell the truth, if it is the truth, to Liz Feagles?” Maybe he wasn’t sure he’d gotten his story straight yet. Even if the jurors didn’t discount his testimony altogether, what did it say? Donahue said he saw his friend Bong with Misty in a back bedroom. Which bedroom?

Schwaemle talked again about Tom Woodmansee, saying she was not trying to tear him down: “He’s not a bad police officer. He made a bad mistake. It wouldn’t be the first time somebody had made a bad mistake.” Patty also made a mistake in having recanted, but she had paid a price for hers. Maybe that accounted for the differences in tone between their two accounts of Patty’s recantation, how hers seemed so much harsher than his. Why would she dwell on his “suicide watch” threat if this was not made until after she confessed? Didn’t it make sense that, on reflection, the stark choice with which she was presented—go to the mental health center or go to jail—would color the whole meeting for her?

The prosecutor addressed Eisenberg’s other points. There was no reason the semen stain should be in the middle of the top bedsheet, which could have been anywhere on the bed. There was nothing unusual about not finding semen or foreign pubic hair on Patty. She said the rapist pulled her hair and the crime lab found “copious amounts” of hair in the bed. Maybe he wiped off his penis before putting it in Patty’s mouth. Maybe he didn’t put the condom on until he knew he was about to ejaculate.

“Let’s think about the rapist here,” said Schwaemle. This was someone who, for whatever reason, “kind of liked to normalize what he was doing.” He engaged her in sex talk: “Tell me how big I am.” He asked that she wrap her legs around him. This while he’s holding a knife to his victim and raping her.

Schwaemle saved one thing for nearly last. Was there, as claimed, a problem with the number of times the alarm clock went off ? Patty said she set the alarm for 4 a.m. but the clock was twenty minutes fast. The snooze alarm went off every nine minutes. The jurors could hear it go off halfway through the six-minute 911 call, which began at 4:13. How many times did it go off ? “You do the math,” she told the jury.

Finally, there was the issue of Patty’s credibility. Here was someone
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who admitted she intended to send her note to Dominic when she could have just denied it. Here was someone who cried on the witness stand when she recalled how she felt to learn that Dominic was not the one. Here was someone who had fought all these years to be believed.

“There’s finally got to be justice for Patty,” Schwaemle said in conclusion. “We have to straighten this path out, from September 4th to the present. It goes right back in a straight line to Joseph Bong.”

Judge Nichol gave some final instructions to jurors, warning them not to be swayed by sympathy or prejudice. At 2:25 p.m. they trudged out of the courtroom, past Patty and her family, to begin their deliberations. None of them looked at her.

The jurors were led into a small, undecorated room with twelve chairs arranged around a large table, two bathrooms, and a blackboard.

Lunch was provided just as they began; it was the only meal they’d get.

Just past 4 p.m. they asked to hear the 911 tape. Nichol told the bailiff he could play it as often as the jurors wanted. Patty and her family waited in the courthouse hallways, along with members of Bong’s family, until about 6 p.m. Then they left a phone number with the clerk and went to the home of Patty’s mother, about a ten-minute drive away. Around 9 p.m. the jury asked to see the DNA analysts’ reports, which were not among the exhibits they had been given; the judge okayed this.

At about 10:45 p.m. the calls went out—to the attorneys, to family members who had left, to members of the press. It took about twenty minutes for everyone to return. Eisenberg, in the hallway, jokingly thanked Mike Short for his lawsuit, which had generated the depositions he used to prepare for trial. Without these, he said, all he would have had was “Draeger and Woodmansee.”

Four brown-shirted sheriff ’s deputies were stationed in the courtroom. Judge Nichol came back in at 11:08 p.m. As usual, Bong was brought in wearing cuffs with a stun belt, which were removed before the jury returned. A cliché on television crime dramas is that a jury that votes to convict will not look at the defendant. As the jurors filed back in, more than half trained their gaze directly on Joseph Bong.

“We’re back on the record,” said Judge Nichol. He addressed the man the jury had, at the start of its deliberations, picked to be foreperson. “Have you reached a verdict?”

The foreperson replied, “We have, your honor.”

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The Verdict

Thomas Jefferson praised the wisdom of letting juries decide questions of fact, rather than referring these “to a judge whose mind is warped by any motive whatsoever.” He felt “the common sense of twelve honest

[citizens] gives a better chance of just decision.”

The jurors in the trial of Joseph Bong were faced with a massive amount of often-conflicting evidence. There was a victim who at one point said the crime never happened and police officers who apparently believed this was the only truthful statement she ever made. There was a defendant about whom they knew next to nothing, but this, they were told, could not influence their decision in any way. There was a second suspect, a person whom the victim and the defense attorney both implicated. There was a purported eyewitness to a sex act that could account for the incriminating DNA.

In the days after the verdict, several jurors spoke with me about the case, as the judge had told them they were free to do. At the start of their deliberations, they said, there was strong division. The first vote, taken after about an hour, was split right down the middle: six to six.

People were dug in on both sides. They listened to the 911 tape and talked some more. Some jurors changed positions. They reviewed the DNA analysts’ reports. Eventually, the last holdouts were persuaded, and a unanimous verdict was reached.

Bong and his attorney stood as Judge Nichol read from the pieces of paper the foreperson had produced. On the first count, burglary while armed with a dangerous weapon: guilty. On the second count, anal sexual assault while armed: guilty. On the third count, oral sexual assault 256

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while armed: guilty. On the fourth count, vaginal sexual assault while armed: guilty. On the fifth count, armed robbery: guilty.

The defendant remained impassive, as he had throughout the trial.

In the back of the courtroom, one of his family members began weeping loudly. Patty also began to cry. Eisenberg asked to have the jury polled, so each member had to answer “yes, your honor,” when asked if he or she concurred with these verdicts. Judge Nichol thanked the jurors for their service.

Patty got hugs from her family and questions from reporters. “I’m just so happy and relieved,” she said. “It’s like a big exhale.” She thanked Schwaemle and Feagles for their work on the case, Mike Short and Hal Harlowe for their advocacy, and her family and friends for having stood by her side. She also expressed how sorry she felt for Bong’s family.

The jurors I spoke with were uniform in their assessment that the deciding factor was the DNA. They considered it overwhelmingly im-probable that the mixed Bong-Patty sample could have come from two different occasions. At the start of their deliberations, some jurors were certain Patty was telling the truth—“I just couldn’t imagine her making all that up,” said one—and others weren’t. She seemed a bit too calm.

And then there was the business about her having such a good time on the night after the rape. The inconsistencies in Patty’s story were not deemed significant. Many of these, the jurors noted, had to do with her inability to see.

There was deliberation over the recantation, but it was less about the veracity of Patty’s account than the culpability of the police. Woodmansee, one juror told me, was seen as an “inexperienced detective who jumped to a conclusion that wasn’t there.” Another said the real question on jurors’ minds was, “How did the police department allow this to happen?” They wondered why the interrogation had not been taped.

They wondered if there were repercussions for the department or the officers involved.

Judy Schwaemle was considered competent and persuasive, but the jurors were more impressed with Mark Eisenberg. They thought he was an excellent attorney who, said one, “did a very good job of trying to confuse the jury.” But in the end, “he simply didn’t have enough to work with.” (Eisenberg seemed to agree; after the jury left to begin its deliberations he mumbled, to no one in particular, “You can’t change the 258

Final Judgment

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facts.”) The jurors kept going back to the DNA and the critical testimony of Daily and Knox. They didn’t necessarily buy Schwaemle’s theory that the semen on the bed was from where the rapist set the condom down. They thought it was more likely pre-ejaculate from the oral assault.

Eisenberg’s Dominic Theory had little resonance among jury members. They thought it typified his cleverness in trying to throw them off track. Ben Donahue’s testimony was largely dismissed, with one juror dubbing him “Mr. Four-Time Loser.” To the extent that his story was given any credence, it strengthened the prosecution’s case, because it meant Bong was familiar with the layout of the apartment. None of the jurors I spoke with thought it mattered that Misty had prior sexual contact with the defendant, as they learned later when they finally read the newspaper accounts; in fact, they had suspected as much. They noticed the looks that passed between Bong and Misty when she testified. They even wondered if Bong was the never-named father of her six-year-old son.