Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (17 page)

Dominic initially declined, on the advice of his attorney. Schwartz persisted, driving to a residence on the outer reaches of Dane County where Dominic was then living with his mother, Carol. No one answered, so she waited in her unmarked squad. After a while Dominic arrived, and it was discovered that Carol had been home all along. Schwartz and Carol conversed at the kitchen table while Dominic stayed within ear-shot in an adjoining room.

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Carol told the detective about a call she claimed to have gotten from Brenda. Brenda was angry that Dominic was now dating her niece and announced her plans for revenge, saying, “That son-of-a-bitch is not going to get away with this because I will do anything it takes to see him rot in jail.” Carol was positive that Dominic was innocent because he had spent the night of the alleged rape at her apartment, along with her daughter Dora. Of course, Carol could not vouch for this personally because she was in jail at the time. She had only recently been released, after ten months, with Hal Harlowe’s help. Carol claimed Harlowe admitted he had a “vendetta against the police department or some police officer.”

When Schwartz explained that she wanted to collect hair and blood samples from Dominic, he joined them at the kitchen table. “I’m scared, this is a setup,” he declared, noting that he had stayed over at Misty’s place and that Patty could have moved things between rooms, perhaps with Misty’s cooperation. “I wouldn’t put nothing past either of them,”

said Dominic. He described Patty as a chronic alcoholic who abused Misty. His only examples: the time she banged on Misty’s door, accusing her of being with someone; and the time she confronted Misty about letting Dominic’s nephew sleep over, and the two had fought. Dominic speculated that Patty had procured one of his used condoms, and Carol scolded him in front of the detective for not being more careful.

In the end Dominic agreed to provide samples. And why not? Even if his DNA matched, the police were apparently willing to believe that Patty had surreptitiously obtained his semen, dumped it onto her bedsheet, and then never sought to call attention to it, even after she was told there wasn’t any evidence and she was charged with a crime for reporting the rape. Dominic followed Schwartz in his own vehicle to Meriter Hospital, where head and pubic hair samples were collected and blood was drawn.

That same day, June 30, Schwartz met with Mark at his place of employment. He said he remained friends with Patty and believed “something really happened” to her the previous September. The last time he and Patty had sexual relations in her room was “at least a few weeks or possibly up to two months” before this. Schwartz, assuring Mark that he was not a suspect, asked to obtain blood and hair samples. Mark 118

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begged off, citing a prior commitment. He said he would call later to arrange a time.

The next day Schwartz met with Dominic’s sister Dora at police headquarters. This was, apparently, the police department’s first attempt to check out his alibi. Dora stated that on the night of the alleged assault, she and Dominic were at their mother’s apartment. She was certain he was there all night because she was up frequently breast-feeding her new baby. Besides, Dominic was still so wasted from party-ing the night before that he was “in no condition to drive.” Dora, whose car Dominic had damaged in an earlier fit of substance-induced rage, stressed that she did not approve of his drinking.

By striking happenstance, Dora said Brenda had also spoken to her about Dominic, vowing “to do whatever I can to put him in jail.”

(Brenda later denied saying any such thing.) After passing on hearsay about Patty, Dora produced two handwritten documents, two pages each, that Misty had found while digging through her mom’s belongings. One was Brenda’s list of reasons to suspect Dominic. The other was Patty’s never-sent note accusing Dominic and warning him against harming her daughter. These Misty had given to Dora, who now turned them over to the police.

Schwartz also met that day with Misty, at Carol’s home. Misty provided names and numbers for other family members and identified individuals whose numbers appeared on Patty’s phone records. She gave the full names of two men—Russ and Doug—whom Patty had dated the previous year. She said that, before the assault, her mother never came home with any man Misty didn’t know, but that this had happened since on one occasion. Misty confirmed that her mother had damaged Mark’s car. She described the incidents where Patty had pounded on her door and fought with her after finding Dominic’s nephew asleep on the couch.

According to her report, Schwartz told Misty “there was some concern about her mother having access to body fluids and/or hair belonging to Dominic.” Misty agreed this was possible but did not think her mother was trying to set up anyone. She reiterated that Patty always locked the door to her room when she was away, ruling out a setup perpetrated by someone else. Schwartz asked about Patty’s alleged childhood sexual abuse and past suicide attempts, about which Misty knew

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little. But she said her mother drank quite a bit and was seeing a therapist, whose name Schwartz now recorded as “Linda Mauston.”

On July 2 Schwartz met with Doug, who confirmed having dated Patty the summer of the alleged assault. He said he had spoken to Patty after the rape and “thought it strange [that] absolutely nothing was taken” from her bedroom. Schwartz put this statement in her report without noting that it was false: Patty had always maintained that the intruder robbed her. Schwartz asked Doug for samples; he had been drinking and requested a ride to Meriter Hospital, which she provided.

Schwartz then went to pick up Mark, who also agreed to give samples but was, by his own reckoning, too drunk to drive. Before she arrived, Mark spoke to an attorney, Marcus Berghahn, who urged him not to comply until he had a chance to investigate. Mark, intoxicated, turned Schwartz away from his door. She closed out the day with an 11 p.m. call to Patty’s remaining former suitor, Russ. He said the last time he and Patty were intimate was in mid-February 1997, more than six months and presumably quite a few sheet washings before the alleged assault. He was not asked for samples. Russ told the detective he considered Patty a decent, reliable person and had no doubt that she was telling the truth.

Attorney Berghahn spoke to Harlowe that evening and sent him a letter the following day. Berghahn had since spoken to Schwartz, who

“was quite adamant and lost her cool surprisingly quick.” He outlined two “scenarios” for why Schwartz was “running around late at night collecting samples from Patty’s male friends and acquaintances.” The first was that “the State is seeing the light and is now looking for the assailant.” The second was that it was trying to tie the semen to someone with whom Patty had consensual relations so this discovery could be

“accounted for and explained away” and potentially even used against her. Berghahn noted that under this second scenario, submitting to sampling did not expose Mark to significant risks. Several days later, Mark provided the requested samples.

Schwartz delivered materials from all three men—Dominic, Doug, and Mark—to the state crime lab for analysis, which would take about three weeks. Meantime, the case against Patty was being challenged on another front.

In a motion filed July 7, Harlowe sought to exclude all statements stemming from Patty’s October 2 interrogation, saying she “was 120

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subjected to improper techniques and influences that were both intimidating and coercive.” The detectives, he alleged, failed to issue Miranda warnings and set out to “coerce and control” his client’s mind, under-cutting her ability to think rationally. Harlowe zeroed in on their assertion that Patty’s vision was not noticeably bad, contrary to the findings of her ophthalmologist, which he attached.

“Imagine the extraordinary fear and disorientation of a blind person,” Harlowe wrote, “being placed in an interrogation room and confronted by accusing officers” who say they know she is lying and is not really blind. Such tactics overwhelmed Patty’s ability to resist, to the point where the statements she made could not be considered voluntary.

The motion would be decided by Reserve Judge Jack Aulik, a bald-ing, jowly jurist then in his midsixties. Aulik had a mixed reputation.

He had helped pioneer Dane County’s drug court, where first-time offenders can avoid jail time or a criminal record if they complete a regimen of drug treatment and testing. Earlier that year, he had dispensed a merciful sentence of probation while bestowing personal praise on one of Harlowe’s clients, an African American community activist who had fraudulently obtained prescription drugs. But Aulik had also been suspended for ninety days for having improper communications with an attorney in a civil case and, more recently, was forced to apologize after calling a probation agent a “broad” and “a typical left-wing, communist, two-bit probation officer” in remarks inadvertently recorded on a voice-mail message.

Perhaps the best harbinger of Judge Aulik’s role in Patty’s ordeal was a case he handled a few weeks before. Patricia Davis—a single mother with no criminal record—was charged with a felony after a police handwriting expert concluded she had signed a check that was stolen from an elderly patient at her workplace and cashed by someone using her identification. Davis spent a night in jail and was soon fired from her two jobs. Her attorney, Dan Stein, argued that her ID was likely stolen by a coworker convicted of a spate of nearly identical crimes, including one involving the same elderly patient. But Judge Aulik shut down this defense, saying, “There’s no relevance that I can see.” Another judge later ordered additional handwriting analysis that proved the coworker’s guilt. Davis never received restitution or even a public apology.

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Harlowe considered it unlikely that Aulik would disallow Patty’s confession. What little hope he had was predicated on two factors: that the conduct of police was especially egregious and that Aulik might be open to an appeal to his sense of decency and compassion. Earlier that month, the judge had been diagnosed with liver cancer, after battling colon cancer the year before.

But mainly, Harlowe told me, he wanted to “have a crack” at questioning Woodmansee under oath. He was also curious about how Patty would do on the witness stand but planned to call her only if he sensed a strong chance of winning. Harlowe, on the eve of Patty’s hearing, marveled at the lengths to which the police were going to account for the newly discovered semen: “They’ve spent more time and energy on this case than several homicides I’ve seen.” He said the other side had adopted a “war mentality” in which Patty had become “the Enemy” and the goal was to vindicate Woodmansee’s poor police work. “This case,”

he reflected, “is a rape victim’s worst nightmare.” It was about to get worse.

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In Search of the Truth

The hearing on Harlowe’s motion to suppress Patty’s confession began at 8:30 a.m. on July 9, 1998. The state was represented by Karofsky, fresh from her Independence Day nuptials, and Brian Brophy, a very tall, brash, and ambitious young prosecutor. Patty, looking frightened, sat beside Harlowe at the defendant’s table. Lieutenant Cheri Maples, Detective Schwartz, and Becky Westerfelt of the Rape Crisis Center were also present.

Karofsky began by asking Judge Aulik to dismiss the motion on grounds that it lacked specificity. Harlowe countered that it was clearly about the lack of Miranda warnings and the use of coercive techniques:

“I don’t think there’s any mystery why we’re here.” Aulik denied Karofsky’s request.

Woodmansee, clean cut and earnest looking, was called to the stand.

Karofsky asked the detective to recount his police training and his investigation into Patty’s alleged assault. Early on, Harlowe objected to Woodmansee’s tendency to give long answers designed to put his police work in a good light, like saying he discontinued his initial interview with Patty after three to three-and-a-half hours because “we were both tired.” Aulik instructed the witness to “respond only to the question asked.”

For Patty, the tone of Woodmansee’s testimony was set when, in recounting his investigation, he acidly remarked that she had canceled their second scheduled meeting “to go out with some friends to a tavern.” She flashed back on how he had assured her it was okay to attend the concert for which she had advance tickets and urged her to have a 122

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good time, and was beset with apprehension. She really had become the Enemy, and her accusers were prepared to say anything they could to make her look bad.

The hearing focused on what happened October 2. Woodmansee said he got Patty to come to the police department by saying he needed to collect some samples. He described the tiny room where he and Draeger conducted the interview. Karofsky then asked a series of questions. Was the defendant “ever restrained in any way?” No. “Did she ever have handcuffs on?” No. “Did she ever have leg shackles on?” No.

“Did she ever have a belly chain on?” No. “Was your weapon ever shown?” No.

Karofsky was seeking to establish that Patty was never formally in custody, one of two prerequisites for Miranda warnings, the other being the asking of questions intended to elicit an incriminating response. Police everywhere commonly avoid informing defendants of their rights in situations where only one of these two factors is present, by questioning suspects who are not technically in custody or letting those who are implicate themselves with statements made in the absence of probing questions. Woodmansee testified that when Patty offered to take a polygraph, he had said, “We’re done with the investigation, you can leave, you can walk out, I don’t care, we’re done.” This statement was offered as evidence that she was free to leave at any time.

Woodmansee recalled how he and Draeger had confronted Patty with various “inconsistencies,” including problems with the time frame, Patty’s apparent ability to see better than she claimed, and the lack of physical evidence. Woodmansee also admitted employing a “ruse,” saying a test showed no latex residue from the alleged assailant’s condom.