Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (31 page)

He presided over the first Wisconsin case in which a defendant was convicted of murder even though no body was ever found. He also conducted the first Dane County murder trial that hinged on DNA evidence. In the early 1990s, when a labor dispute between Madison teachers and the local school district ended up in his court, Nichol assumed the role of mediator and forced the sides to keep talking until an agreement was reached. He was not seen as having a great legal mind or a passion for pondering the fine points of case law, but he ran his court in a fair and evenhanded manner.

Judge Nichol’s first exposure to the case was at Bong’s arraignment in late August 2002. Schwaemle was late and another prosecutor had to be rounded up to fill in. Eisenberg, in the courtroom beforehand, was in a jovial mood. He joked that he might seek a dismissal because the prosecution was absent, and that, after his planned defense, the district attorney’s office “might want to refile charges” against Patty. He also yukked it up with court personnel about how Bong was serving an eighteen-year sentence, saying “I want him out.” (In fact, by this time, Bong was eligible for parole, although the severity of his crime made this unlikely.)

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When Bong was brought into the courtroom, in handcuffs and jail garb, Eisenberg greeted him warmly: “Hi, buddy.” The proceeding lasted less than five minutes. Not guilty pleas were entered on Bong’s behalf and Judge Nichol gave each side twenty days to file motions. Eisenberg asked for thirty days, saying there was “a significant amount of discovery” as well as “some issues about the complainant’s psychiatric history.” The judge granted the extra time. Just as the arraignment ended, Schwaemle arrived.

The thirty-day deadline came and went, with no request for an extension. On the fortieth day, in early October, Eisenberg filed three threadbare, perfunctory motions. He sought exculpatory evidence and information on the criminal backgrounds of any prosecution witnesses, and he asked whether Bong’s “other crimes, wrong or bad acts” might be introduced.

No one from the district attorney’s office kept Patty posted on developments in the case. “Nobody really gives a shit,” she concluded.

Mike Short also felt the office was treating Bong’s prosecution as a low priority. “If they screw this up, I’m going to be a bitter man,” he told me.

“I’m going to talk to every media outlet that gives me the time of day.”

In late October and early November, Eisenberg filed two new batches of motions. Unlike his initial ones, these were substantive and intensely case-specific. He wanted Patty’s psychiatric records. He wanted records of her sessions with therapist Nina Bartell, with whom Patty discussed “why she would lie about saying the sexual assault did not happen.” He wanted lab reports regarding the DNA analysis. And he wanted Patty to undergo an independent psychological examination regarding the rape.

Accompanying these motions was an affidavit from Eisenberg recounting various juicy bits from Woodmansee’s and Schwartz’s reports.

These included Mark’s speculation that Patty might be capable of fabricating a rape and his diagnosis of her as having “a mental chemical depreciation,” Dominic’s considered opinion that “this lady is crazy,”

and Misty’s purported statement to police that she “assumed her mother was hallucinating” about the alleged assault. This last point was a creative misstatement of Misty’s comment to Schwartz that her mom had stopped taking Prozac because “she didn’t want people to use that 218

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[as] an excuse for saying she hallucinated the assault,” as Draeger had insinuated.

Eisenberg’s most significant motion sought dismissal of the charges on grounds that the criminal complaint “omitted material statements . . .

which were necessary for a neutral and detached magistrate to determine probable cause.” He listed four major omissions: Patty identified another man as her assailant; she recanted her complaint; Feagles abandoned her investigation for lack of evidence; and Misty admitted having sex with the accused “on at least one occasion.” Eisenberg called it “very probable that the semen stain from Joseph Bong occurred when he was having intercourse with Misty.”

Ironically, while seeking a dismissal due to omissions, Eisenberg neglected to mention a few things himself: Patty was equivocal in naming Dominic as a suspect; her recantation was momentary; Feagles’s investigation occurred after the recantation, suggesting she found Patty’s account credible; Misty’s sexual contact with Bong did not happen in the Fairmont apartment and certainly not in her mother’s bedroom, which multiple sources said was always locked.

In mid-December a pretrial hearing was held in Dane County court. The defendant was not present, in part because he had recently been transferred from Green Bay to the state’s super-maximum security prison in Boscobel. This is where “the worst of the worst” Wisconsin inmates are locked down in tiny cells, which they are almost never allowed to leave, as part of a regimen meant to modify their disruptive behavior. Between late July and late November, Bong had received seven major conduct reports for such offenses as fighting, disobeying orders, possessing contraband, and theft. Three separate incidents involved attacks on fellow inmates. In one case, he allegedly beat a fellow inmate over a gambling debt; guards found clumps of the man’s hair on the ground and blood on Bong’s upper lip. In the final flare-up, Bong told a female guard to “Shut the fuck up” and “Shut up, you goofy ass bitch,”

saying “I don’t give a fuck about a conduct report because I’m going to Supermax.” He was right.

At the pretrial hearing, Eisenberg discussed the difficulties he had obtaining the “ton of discovery” done during the federal lawsuit.

Attorney Brad Armstrong had refused to provide these materials, including Patty’s “diary,” saying these were covered by a protective order.

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Schwaemle agreed Eisenberg was entitled to this information and promised to help him obtain it. Eisenberg said he might ask Patty to sign a release. “If she refuses,” he told the court, “then I can argue she shouldn’t be allowed to testify.” Schwaemle offered no counterargument.

Eisenberg gave a brief, biased summary of the case for Judge Nichol, who admitted knowing nothing about it. Nichol agreed to a status conference in forty-five to sixty days, at which Eisenberg’s motion to dismiss would be taken up.

“Delay, delay, delay,” groaned Patty when she heard the news. “I feel it’s going to go on forever and ever and ever.” She feared the volume of material sought would give the defense grounds for further delay. But Harlowe felt it was important that the defense get all of the material it wanted, lest this later serve as the basis for an appeal.

In mid-January 2003 Schwaemle filed a two-page response to Eisenberg’s motion to dismiss, saying any omissions from the criminal complaint did not meet the case-law standard of showing “reckless disregard for the truth.” The inclusion of these facts, she argued, would have “merely provided the additional information that the complaining witness offered inconsistent accounts.” She did not highlight any of Eisenberg’s own omissions and misstatements.

The status conference took place in early February 2003. Again, Bong was not present. The judge agreed to make a written ruling on Eisenberg’s motion to dismiss, probably within the week. Schwaemle said she and Eisenberg were “essentially in agreement” on his requests for discovery, though not everything had been provided. Nichol, noting that “this case is old,” wanted to “hold everybody’s feet to the fire” by setting a trial date. He asked both parties how long they expected a trial to take. “Three days,” answered Eisenberg. “I was going to say two,” said Schwaemle. The judge set jury selection for Monday, June 30, and the trial for the remaining three days that week before the long July 4 weekend. A motion hearing would be held at least a month in advance.

The following week, the same in which he was named Judge of the Year by the State Bar of Wisconsin, Nichol issued a decision on Eisenberg’s motion to dismiss. He concluded that none of the information outlined in the defense pleadings was sufficient to warrant dismissal of charges. As he put it:

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[That] the victim recanted, which is not all that uncommon in these types of cases, is an issue of credibility for the jury to decide. Because it was dark and the victim sight-impaired, she could not make an identification of the assailant, so the fact that the victim thought the voice of the assailant sounded like her daughter’s boyfriend doesn’t defeat the Court’s finding. Finally, the fact that the victim’s daughter had intercourse with the Defendant does not negate the evidence of the Defendant’s semen being on the bedsheets of the victim and taken as evidence from the crime scene shortly after the incident happened.

For these reasons, the motion is denied.

Nichol’s ruling heartened Patty and her advocates. While his mistaken belief that she implicated Dominic via voice recognition indicated a cursory review of case materials, the judge had framed things from her perspective, even imagining how her visual disability added to her disorientation. It was a good sign.

But it was followed by more delays. In early May 2003, shortly before the motion hearing was slated to take place, Schwaemle contacted the court to say she had a scheduling conflict. The motion hearing was pushed back to late July, with the trial now set to begin August 28. Said Patty, “It doesn’t seem like it’s ever going to happen.”

In late July, four days before a scheduled motion hearing, Schwaemle called Harlowe with some good and bad news. The good news: the state crime lab had run additional tests and found Patty’s DNA mixed with Bong’s. That would make it harder to argue that the defendant’s DNA was present because he and Misty had a tryst in her mother’s bed.

Harlowe was pleased with this development, as was Patty. The bad news: the defense wanted time to review these findings, meaning the trial would again be delayed, this time to November 17, the week before Thanksgiving.

There was a motion hearing in September. Bong, still completely bald, was brought into the courtroom wearing jail attire. He had continued to distinguish himself in prison, drawing 270 days of program segregation—solitary confinement—for an incident in which he had shouted strings of obscenities at guards and other inmates. Now he sat quietly as lawyers hashed out the remaining issues regarding discovery.

Schwaemle wanted to withhold some of Patty’s therapy records that, she said, “are not relevant and contain no exculpatory information.” Eisenberg wanted everything, arguing that Patty no longer had any medical privacy privilege, due to the waiver she’d signed in the civil suit. He
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asked the judge to review the records before making his decision; Nichol agreed.

A few weeks later Judge Nichol ruled that the defense was entitled to all of Patty’s psychiatric records, saying she had “waived her privilege of confidentiality by executing signed releases” in the civil case. Eisenberg, around this time, filed a new request: that Dominic be brought back from Terre Haute to testify at trial.

Everything looked like a go for the November 17 trial date, more than six years after the rape and two and a half years after Bong was identified through DNA evidence. Subpoenas were issued. Plans were made for Patty to meet with Kerman and Schwaemle to go over her testimony again. Bong was sent back to the Dane County jail. Then, in late October, the trial was pushed back again, this time because Bong was not feeling well.

When Kerman called to break this news and discuss new trial dates, Patty snapped, “I don’t have a calendar for 2010.” She spent a sleepless night; we spoke the next day. Patty was crestfallen: “I thought this was going to be the year when I put this all behind me.” I looked up this latest development as recorded on the state court system’s online database: “Defendant is ill. Motion to pp [postpone] by defense atty. State has no objection.” Responded Patty, “I object.”

Harlowe arranged a meeting with Schwaemle, at which Patty was told there was indeed a way to put this all behind her. Bong, through Eisenberg, had offered to plead guilty in exchange for the prosecution’s agreement to seek only a five-year term. Patty calculated what this meant: Bong could complete his sentence and be released, quite possibly to hurt someone else, while he was still a young man. She asked that this offer be rejected; it was.

The new trial date was March 8, 2004. During the months of waiting, sexual assault and the credibility of alleged victims became a national issue when a young woman reported being raped by a professional basketball player, Kobe Bryant. His attorneys played hardball, subpoenaing the woman’s psychiatric records and forcing her mother to testify about her emotional troubles, creating a climate so extreme that the charges were eventually dropped when the woman withdrew her willingness to cooperate. What Mark Eisenberg set out to do to Patty was even more extreme.

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“Expect the Worst”

Every family has its secrets, some darker and buried deeper than others.

The secrets kept by Patty’s family were very dark and very deep. “We don’t talk about it,” Patty’s sister Brenda said matter-of-factly during her deposition in the civil case. Yes, she knew Patty alleged being sexually molested by her stepfather (Brenda’s father) when Patty was young.

Yes, she attested, “I would say I believe her.” But mostly, said Brenda,

“it’s just not something—we just don’t go there. It’s fine that way.” Patty, in her own deposition, put it like this: “We like to pretend nothing ever happened.”

Mark Eisenberg filed his motion on Friday the thirteenth of February 2004. It sought “to allow the defense to introduce in its case prior untruthful allegations of sexual assault made by the complainant”—

namely, her claims of being sexually molested between the ages of six and fourteen. The stepfather, Eisenberg told the court, “will testify that this never happened.” Detective Schwartz, tellingly, had tried the same approach: find the stepdad and see if he’ll say she lied about that, too.

But Eisenberg, unlike the detective, had found the stepdad.

“Patty’s going to be victimized all over again,” sighed her sister Sue, in response to this news. A few days earlier, she had gotten a call from an investigator who did not initially volunteer that he was in Eisenberg’s employ. Just like Schwartz, he wanted to know about these allegations involving the stepfather. He asked “if I believed Patty and everything she said.” Her reply: “Of course I do.”

Eisenberg and his investigator visited Patty’s ex-husband, Misty’s father, showing him her psychiatric records, the ones Judge Nichol had 222

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turned over on grounds that Patty “waived her privilege of confidentiality” when she sued the police. They also spoke with Patty’s former boyfriend Mark, perhaps to ask about her “mental chemical depreciation.”

But tracking down her childhood molester was Eisenberg’s attempted coup de grâce.

Sue shuddered at the memories it brought back, the secrets it threatened to unleash. “We were all victims of inappropriate behavior by that adult,” she told me. Patty, the oldest, got the worst of it, and by coming forward as a teenager might have spared her sisters. Police reports confirm that the authorities who removed Patty from the home never even spoke to these other children. Sue recalled being touched in inappropriate ways. A third stepdaughter, she related, would only say, “I know what he did to
me.
” Another sibling, one of the man’s daughters, would not let her own daughter be alone with him. Sue agreed this was wise:

“He’s a person who never should be around children.”

Patty reacted to Eisenberg’s motion with alarm: “I can’t have it going that far.” Denial had worked well for her family; it protected her mother, especially, from pain and guilt over these past events. And now this lawyer was stooping to this, “telling our family when and how to deal with it.”

The impending trial and, perhaps, the throwing down of this gaunt-let, seemed to energize Schwaemle. This would be her first trial in more than five years—her duties in the district attorney’s office were largely supervisory—and she was excited by the challenge that the case presented. Eisenberg had so much to work with to confuse the jury and plant the seeds of reasonable doubt: Patty’s recantation, her implication of Dominic, Misty’s fling with the defendant, police witnesses more interested in justifying their decision to turn on a rape victim than in convicting her assailant. Schwaemle’s job was to keep the issues simple: a woman is raped; the semen of a man she didn’t know but who knew of her is found in her bed. “A lot,” she told me, “will depend on what Judge Nichol lets in.”

“I think I’ll get a lot of stuff in,” chirped Eisenberg to Schwaemle prior to the start of a February 27 hearing on his motion to dredge up Patty’s “prior untruthful allegations of sexual assault.” Patty was at this proceeding, the first she had been to in Nichol’s court. Sue was also present, in case she was needed to testify. The stepfather was nowhere 224

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to be seen. Neither was defendant Bong, per his own wishes. This may have been a tactical error, since it underscored how distant the issue in Eisenberg’s motion was from the question of his client’s guilt or innocence.

Eisenberg argued that Patty’s past history proved her propensity to fabricate claims of sexual assault to achieve her goals—in the earlier case to “get out of the house” after a fight with her mom. The stepfather, he said, would testify that he never had “sexual intercourse” with her. This was odd, since Eisenberg introduced as an exhibit the portion of Patty’s deposition transcript where she said the childhood assaults did not include intercourse.

Schwaemle noted that these thirty-year-old accusations involved a very different kind of assault. She cited case law requiring that, for such evidence to be introduced, it must be beyond dispute that the alleged victim was lying. In this case, Patty and her siblings were prepared to testify that the abuse occurred, so the perpetrator’s denial did not mean a thing. “Half the priests that are accused of it today aren’t admitting that they sexually assaulted their parishioners,” she noted. “That doesn’t make those allegations false.”

The judge sided with Schwaemle, but for a different reason. When Patty came forward with her prior allegations, she was an adolescent.

Now she was a mature woman. Said Nichol, “I don’t think I would want some things in my adolescence to be considered probative” of adult conduct. This testimony, he said, would be “unduly prejudicial.” Eisenberg gave further argument, but Nichol stuck to his decision.

On the same day as this hearing, Madison Police Chief Richard Williams announced his imminent retirement, to pursue career opportunities outside Madison. This followed months of emphatic, unequivocal denials of rumors that he was planning to step down.

Both sides filed additional motions seeking to limit the scope of evidence, necessitating another hearing, on March 3. In the courtroom beforehand, a court worker told Eisenberg about a recent case in which a man masturbated in front of a woman, then wiped his ejaculate on her.

Eisenberg laughed and said, “Yeah, there’s a lot of sickos in this world, no doubt about it.” Just then, Bong was led, handcuffed and leg-chained, to the seat beside him. He was no longer bald and had evidently recovered from the health problem that earlier delayed the trial.

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Patty missed this hearing, but Brian Blanchard, the Dane County district attorney, did attend. After more than three years in office, Blanchard had grown into the job, acquiring competence and confidence.

While some hard-bitten veteran prosecutors still saw him as an inter-loper, Schwaemle publicly proclaimed, “I think Brian could be the best district attorney Dane County has ever seen.” This was high praise indeed, given that prior occupants included Wisconsin Governor Jim Doyle, Gerald Nichol, and Hal Harlowe. Blanchard’s presence was a strong sign of his office’s support.

The defense’s motions were considered first. Schwaemle agreed to nearly all of Eisenberg’s proposed exclusions. There would be no mention of Bong’s prior sexual assaults and other crimes, unless he were to testify in his own defense. Schwaemle then asked, and Nichol later agreed, that there be no testimony over whether Misty had sex with Bong at “any other time and place” beside the bedroom where Bong’s semen was found.

Schwaemle also sought to keep the police from testifying as to their

“beliefs regarding the truthfulness” of Patty’s report of sexual assault.

This would be just as improper, she said, as having the state’s witnesses expound on their opinions as to the defendant’s guilt. But Schwaemle did want to solicit testimony regarding what Patty was told on October 2, 1997, when she recanted. Eisenberg argued that having the police admit saying they did not believe Patty would open the door for him to probe why. Schwaemle was adamant: “What they told her is relevant.

But why they believed it is not relevant.” Nichol declined to issue an immediate ruling, telling Schwaemle, “Ordinarily, I would agree with you, just out of hand. But ordinarily, you don’t have a recantation.”