Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (23 page)

Three Axley attorneys were assigned to counter Patty’s complaint, including senior partner Brad Armstrong and associate Mike Modl, who handled many city of Madison cases. The two men were a study in contrasts. Armstrong, who turned fifty-nine the month Patty’s lawsuit was filed, was robust and domineering. A former UW–Madison football player, his style, honed over three decades of practice as a civil defense attorney, was to box his rivals into a corner and bully them into submission. Others in the firm feared him, with good reason: he was fiercely intelligent and capable of great cruelty. He was also deeply reli-gious, and a leader in his church, Bethel Lutheran.

Modl, then forty-four, was a slight, mousy man with gray hair and an irrepressibly cheerful disposition, sometimes bursting into song. He wore thick glasses and could not see well enough to operate a vehicle; his wife drove him to and from work. Although he had gotten his law degree just twelve years before, Modl had a brilliant legal mind and numerous areas of expertise; he was the firm’s go-to lawyer for all kinds of questions. He was friendly, approachable, and well liked by others, even opposing counsel. Modl’s talents were almost always plied defending the powerful against the weak: municipalities facing civil rights claims, financial institutions accused of discriminatory practices, employers charged with workplace harassment, prisons sued by inmates. He was the system’s best friend.

Two days after Christmas, Short met with his rivals at their offices in downtown Madison to discuss scheduling and discovery. Armstrong warned him about the resources that Axley was able and willing to employ in the detectives’ defense. Short was not intimidated, but perhaps he should have been. Several days into the new year, Axley filed an impetuous answer to Patty’s complaint. It admitted that Woodmansee made a false representation regarding rubber residue but denied almost
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everything else. It denied that Woodmansee at some point began investigating Patty for the crime of obstruction. It denied Patty was taken to a “small” interrogation room, saying the dimensions of the room “were approximately 12 x 8 foot.” It even denied things Woodmansee had put in his report and admitted under oath, such as telling Patty her vision was not noticeably bad. At times, the querulousness of the Axley attorneys defied comprehension. Paragraph 61 of Short’s complaint read, in its entirety, “Plaintiff then stated, ‘Okay, I made the whole thing up.’”

Axley’s answer: “Admit only that Plaintiff admitted, ‘Okay, I made the whole thing up’ and deny the remaining allegations in paragraph 61 of Plaintiff ’s Complaint.”

This filing was followed in late January by Axley’s “first set” of interrogatories and requests for production, which filled twenty-four pages and contained dozens of demands, such as: “Please identify all documents in your possession, custody or control which you contend support your allegation that Defendants subjected Plaintiff to retaliatory criminal prosecution as alleged in Plaintiff ’s sixth cause of action.” Among other things, Axley demanded that Patty identify every occasion in her life in which she received “any treatment from any health or mental health provider.” It wanted the names of providers, the dates of each treatment, and “your entire medical history as it relates in any way” to these visits.

Short showed me Axley’s discovery demands and asked if I had any ideas. I suggested crying. The responses he eventually submitted were past deadline and incomplete; in most cases, he declined to answer Axley’s interrogatories, saying he first needed to conduct discovery. But he did open up his files to Axley’s inspection, including turning over a copy of the journal that Patty had begun writing about the assault and its aftermath. Patty was deeply distressed: this was something she produced for her own use, to help sort out her experiences, and now it was being given to people looking for things to use against her. She also signed releases to let Axley obtain medical records from every doctor or mental health professional she could remember visiting.

Axley Brynelson was not satisfied. Andrew Clarkowski, the third attorney assigned to defend the city against Patty, filed a motion in early March 2000 to compel Short to comply more fully with the firm’s discovery demands. This led to a hearing before Judge Shabaz. The 164

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defense, said Clarkowski, was merely seeking answers to “standard contention interrogatories” so that it could prepare its defense. Short said his own efforts to obtain discovery had been frustrated by Axley, and thus the interrogatories were “premature.” Shabaz came down firmly on Axley’s side, granting the motion to compel and ordering Short to pay the costs of bringing it. The judge also strongly signaled that he would respond favorably to a motion to dismiss.

“I don’t understand the modern practice of law, obviously,” said Shabaz, noting that if he were a lawyer in private practice facing a similar situation he “would have immediately moved for summary judgment.”

The judge expressed his belief that Short’s failure to fully comply with the discovery request was essentially an admission that he had no case.

“The fact is that this is the best response the defendant could have received. So I don’t understand what’s going on here, unless there’s an awfully deep pocket and the defendant is interested in running up the meter.” As if this were too subtle, Shabaz expressed his “hope that the comments of the court would be pursued,” reminding the Axley lawyers that “you don’t have to wait” to file a motion seeking dismissal.

The Axley lawyers did not bite, instead preferring to keep open the spigot of billable hours through an exhaustive series of depositions and filings that in the end, arguably, would help achieve Patty’s goal of letting the truth be known, once and for all.

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Patty’s Depositions

Brad Armstrong got right down to it. Less than four minutes into his deposition of Patty on March 15, 2000, having ascertained only her name and that of her biological father, the Axley attorney sized up the frightened woman across the conference table and asked, “Did

[your father] ever physically or sexually abuse you?” It was the kind of question—tactless, insolent, abrupt—he would pose again and again during Patty’s first deposition that day and two more to come. Armstrong asked about her past suicide attempts. He asked about the sexual abuse inflicted by her stepfather. Interspersed were comments insinuating that Patty was a complete imbecile, caught up in a drama she lacked the capacity to comprehend. To wit: “You are involved today in a lawsuit. Do you understand you’re involved in a lawsuit?”

Throughout these depositions, Armstrong subjected Patty to the kind of questioning most defense attorneys representing rapists would never try in court, because it would be barred under rape shield laws and alienate juries. His strategy was clear: to batter Patty psychologically in order to get her to make incriminating admissions, just as the police officers he was representing had done. None of the information obtained by rummaging through the painful details of Patty’s past was used in pleadings to the court; Armstrong’s purpose was apparently to exploit her emotional vulnerability. Part of this involved heightening her level of discomfort. All three depositions took place on his turf, in the offices of Axley Brynelson in downtown Madison. Mike Modl was present for the first two, Woodmansee for all three. The detective, whom she could not see, made his presence known by sighing frequently.

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There was not much that Short could do to protect Patty. Depositions are open discovery, and even questions that draw objections must still be answered. Short did repeatedly object, on grounds of relevance and the manner in which questions were framed. Armstrong, in response, sprayed him with venom. “Be quiet now,” he demanded early in the first deposition after Short objected to a question phrased as a statement. “Excuse me?” replied Short. “I said be quiet now,” repeated Armstrong, warning of likely “counseling sessions with the judge” if Short kept interfering.

Armstrong went through Patty’s entire history of relationships, with a particular interest in whether they involved abuse. “When did you first have sexual intercourse?” he asked, over Short’s objection. “I was thirteen,” said Patty. “And with how many men have you had sex in your life?” Patty wasn’t sure. “Hundreds?” asked Armstrong. Actually, she said, it was more like fifteen.

“And how many men have sexually abused you in your life?” Only her stepfather. “And in your life how many times have you claimed that you have been raped?” Just once, but she had on two occasions extricated herself from situations where she thought an assault was about to occur, including the time a strange man walked into her house and she pushed him back out. Armstrong found this incredible, asking if the man was “some kind of a dwarf.” He also asked, “Did you have any voluntary sexual contact before you insisted he leave?”

Next Armstrong wanted to know how many men Patty had sexual intercourse with since the alleged rape. Patty, in answering, admitted she had on one occasion come home with a man she met in a bar. Armstrong unloaded: “Do you know your daughter Misty has told various people that after September 4, 1997, you would go to the bars, get trashed, and bring home strangers and have sex with them?”

“There was that one,” answered Patty.

“She said you did that with regularity,” insisted Armstrong, misstating what Misty had told Detective Schwartz. “Do you deny that?”

“I deny that,” said Patty. She speculated that Misty was trying to make her look bad because she had implicated Dominic. Armstrong seized on this: “Assuming she felt she was in a position where she had to protect her boyfriend, what has that got to do with her saying that you would go to bars, particularly on weekends, get trashed, and bring
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home strangers and have sex with them?” He asked whether Patty was now claiming there were “only two times” she came home with strangers, distorting her testimony that it had happened once. Short objected to this and to Armstrong’s use of the word “stranger.” But Patty, putting honesty before self-interest, interjected, “He actually was a stranger. Yeah, I did just meet him.”

Armstrong asked about Patty’s past use of drugs and current use of alcohol, saying “every counselor you’ve had” as well as “Becky from Rape Crisis” described her as alcohol dependent. Patty disagreed, noting that she didn’t drink at all during the week and no longer used any illegal drugs. He asked about Patty’s ongoing fear of police. She recalled what Draeger had said about police not believing her next time. Armstrong derided this: “So you’re saying that in your heart of hearts you really believe that if you call the police tonight and said ‘Somebody is here, I want him out,’ that nobody would come and help?” Replied Patty, “I’m working on it psychologically.”

After several hours, Short requested a break. When he and Patty were alone, she broke down and wept. She was shocked by Armstrong’s meanness and unnerved by Woodmansee’s presence in the room. Short tried to reassure her, saying she was doing fine.

When the deposition resumed, Armstrong delved into information he gleaned from Patty’s psychological records. “Do you have a hatred for men?” he inquired. No, Patty answered. Then why were there “several references in your stuff, your counseling records, indicating that you have a deep distrust and hatred of men?” “I don’t know what you’re talking about,” answered Patty. “In counseling it’s an emotional time. . . . I hate, love a lot of things in counseling.”

Armstrong flared. “So what are you saying to me?” he exclaimed. It was “documented in the records” that Patty had a hatred for men. “Are you unable to say at this time what you meant by that?” Patty, flustered, tried to explain: “I’m saying if I said it, which I don’t doubt, I certainly didn’t mean it. I don’t hate men.” Armstrong used this to suggest that Patty had lied to her counselors and, probably, to lots of other people too.

He then asked again about Patty’s stepfather, her past use of drugs, times she had been hospitalized, boyfriends who had mistreated her. It was like a medley of blues tunes, meant to focus Patty’s attention on bad things in her life. Having established this soundtrack, Armstrong for 168

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the first time asked about the issues at hand: “You claim, as I understand it, Patty, that on September 4, 1997, you were raped at your place on Fairmont?”

“Right,” Patty answered.

“Why do you say you wouldn’t make up that story?” wondered Armstrong. Patty couldn’t imagine anyone making up such a thing and would never think to do this. Armstrong continued: “Have you ever made up
any
stories before?” Probably, answered Patty. He had her there.

Armstrong asked about Dominic, saying Patty had contended “for several years” that he was the man who raped her. When Short pointed out that it had not even been several years since the assault, Armstrong opted for another falsehood: “For two or more years, has it been your position that you were certain that [Dominic] raped you?” No, answered Patty, she was never certain but he was “my best suspect” until July 1998, when the DNA tests excluded him. Armstrong asked how that made Patty feel, “after having made all these accusations.” Patty expressed regret over the strain it had caused between her and Misty. Did Patty hate Dominic? No, she said, “I actually feel kind of sorry for him.”

Armstrong went on to ask: “Patty, have you ever had sexual intercourse with [Dominic]?”

For Patty, the most painful moments were when Armstrong produced her rape-account journal. Short argued that this document might fall under a work-product exemption if Patty had prepared it on advice of her criminal defense attorney. But Patty, again being perhaps a bit too honest, said she had not. Armstrong quizzed her at length, reading passages she never intended anyone to see, such as how, “in hopes of getting him to climax sooner, I sensuously moved my tongue around the tip of his penis and gently caressed his testicles.”