Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (15 page)

The inclination to appeal to people’s meaner and baser instincts can be pretty strong.”

As district attorney, Harlowe reorganized the office, creating a separate unit for misdemeanor and traffic cases, which Jill Karofsky later came to head. During his tenure, the number of local prosecutions for domestic violence rose from about a dozen to six hundred a year. Like most district attorneys with large staffs, Harlowe personally prosecuted only a handful of cases. One of these was a double murder that for him evoked memories of the killings on the reservation.

In 1984, an imprisoned white supremacist, Joseph Paul Franklin, confessed to murdering an interracial couple in Madison seven years earlier. Franklin had been convicted of slaying two black men in Salt Lake City who offended him by jogging with a white woman. (He was acquitted of the 1980 shooting of civil rights leader Vernon Jordan and suspected of other crimes, including the 1978 shooting that paralyzed porn publisher Larry Flynt.) Franklin, angling for a transfer from a pre-dominantly black federal prison, said he had come to Madison to kill a local white judge who made national news by ascribing blame to a white teenage girl who was sexually assaulted by three black men. At the shopping mall, Franklin decided on the spur of the moment to “send this nigger and white bitch to hell.”

Harlowe noted that despite four life sentences, two each under state and federal law, Franklin might someday get out of prison. Moreover, he felt the families of his Madison victims deserved justice. And so he had Franklin brought back to Dane County for a week-long trial. Just prior to the verdict, in the library of Harlowe’s office, there was another spontaneous eruption of emotion: family members clasped hands and prayed for justice. The jury found Franklin guilty; the judge added two more life sentences and sent him back to the same federal prison.

After three terms as district attorney, Harlowe in 1989 returned to private practice, doing criminal defense and professional licensing. He remained remarkably charitable in his view of human nature, even 104

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resisting the temptation to demonize Joseph Paul Franklin, an easy target. “People like Franklin are convenient to use as foils in the struggle against evil in the world and against the evil that may lurk in each of us,” he reflected several years after the trial. “And you can pretty comfortably align yourself against a man like that in an effort to place yourself on the side of good. But I think once you go beyond that and try to judge an individual, you should do it with humility and compassion.”

Harlowe became one of the Madison area’s most successful defense attorneys. His forte was not flashy, high-profile cases, but situations where people exercised bad judgment and ended up in the system’s ten-tacles. One of his clients was Dominic’s mother, whose arrest on drug charges triggered parole revocation proceedings in Wisconsin and Texas. Harlowe ultimately prevailed, but only after she spent nearly a year in jail. Like other defense attorneys, Harlowe usually represented people who were more-or-less guilty as charged; his job was to minimize the consequences. But in late 1997 Harlowe landed a client whose innocence he believed in absolutely. Her name was Susan Pankow.

Pankow was accused of deliberately breaking the leg of thirteen-month-old “Alicia” at her home child-care center. She was charged with intentional physical abuse of a child, a felony that carried a maximum ten-year prison sentence, as well as misdemeanor child neglect. She had already lost her child-care license and with it her livelihood. The major evidence against Pankow was the confession obtained by Detectives Tom Woodmansee and Lauri Schwartz. At a probable cause hearing in December, Harlowe had gotten Woodmansee to describe, without conceding the possibility of error, how he had planted the suggestions for Pankow’s distraught admissions. How he had asked Pankow if she was

“frustrated” while changing Alicia, before she used this word herself.

How he asked if she heard a cracking noise and she answered, “possibly a crack.” How even her confession was speculative: “Oh, God, if I did this . . .”

On February 20, 1998, Harlowe filed a motion seeking to suppress Pankow’s statements. No Miranda warnings were given “although such warnings were required by the circumstances of the interrogation.” The interrogation lasted more than two hours, “during which time the defendant was isolated and subjected to intimidating and coercive techniques. The resulting statements were involuntary.” Harlowe knew it
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was unlikely that Pankow’s statements would be thrown out; contrary to the impression given on television shows, criminal suspects are rarely read their rights and judges seldom exclude incriminating evidence. But he thought it was worth a try, and he wanted to signal his displeasure with Woodmansee’s approach.

The detective, Harlowe felt, had used a well-known but risky style of interrogation that involved planting suggestions, inviting speculation, and then misinterpreting answers in ways that ratcheted up culpability. He skillfully used these methods to get Pankow to make admissions that could be used against her. Then, whether due to inexperience, arrogance, or a lack of supervision, he came to believe that he had solved the crime. Harlowe considered Woodmansee “dangerous.”

And so Harlowe was intrigued when his friend Connie Kilmark asked him to consider taking over as Patty’s attorney. David Knoll had advised Patty to plead guilty to the obstruction charge in exchange for getting into a deferred prosecution program for first offenders. Patty didn’t want to do this, since it meant publicly admitting that the police were right and she had lied about being raped. She asked Kilmark, who was still counseling her on financial matters, if she knew an attorney who would be willing to fight.

In mid-March Harlowe met with Patty and Kilmark at his law office, a gorgeous historic landmark in downtown Madison, a stone’s throw from Lake Mendota. They went into Harlowe’s spacious chamber and sat around the conference table. Patty got a good feeling from Harlowe, who was soft-spoken and patient. Harlowe liked Patty and considered her credible but left open the possibility that, as was often the case with criminal defense clients, the story she told initially was not the whole truth.

Harlowe required a $5,000 retainer, a sum beyond Patty’s means.

She scraped together $2,000 and borrowed $3,000 from her sister Sue, who lived in La Crosse, in western Wisconsin, and was married to a police officer. Patty sent Knoll a thank you card saying she had decided to

“finish this case with another attorney” and asking him to send a bill.

Knoll, in an equally thoughtful gesture, never did.

On March 26 Deputy District Attorney Karofsky offered a settlement, the same that Knoll thought he could obtain: if Patty pled guilty to the obstruction charge, her office would refer her to a first offenders 106

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program. This meant there would be no jail time and, if Patty kept out of trouble for a prescribed period, her conviction would be dismissed.

Harlowe brought the offer to Patty, calling it hard to pass up. If she went to trial and lost, she would probably get probation, at least, and be publicly humiliated.

Patty didn’t blink. She emphatically rejected any deal that would require her to admit guilt. Harlowe was gradually persuaded that, in Patty, he had another of his profession’s most elusive finds: an innocent defendant. He had given her plenty of room to amend her original story, but she had no need to. She was credible, consistent, and, above all, courageous. “I was struck by her bravery,” Harlowe said later. “It really was courage in the purest sense of the word. She was terribly frightened and yet she was determined to go right into the jaws of what she feared most.”

Karofsky’s settlement offer was accompanied by the police reports, including Woodmansee’s forty-eight-page tome, which provided the basis for the prosecution’s case. When Harlowe read through this material, he was shocked that Woodmansee had included so much information that raised doubts about his investigation and the reliability of Patty’s “confession,” right down to noting that she had prefaced it by stating, “If you’re going to drop this, I’ll say whatever you want.” Harlowe also took note of references to Patty’s vision, which Woodmansee concluded was not “noticeably bad.” He contacted Dr. Thomas Stevens, an ophthalmologist who had examined Patty in the past. Stevens confirmed that she had a severe visual impairment and most likely could not distinguish a person’s features in a dimly lit room.

Beyond that, Harlowe thought the case against Patty was woefully weak. The only “evidence” that she had lied, aside from her recantation, was Mark’s comment, in response to Woodmansee’s leading questions, that “there is something that makes me think she could make this up to get me to stay with her, but I hope not.” Reading this portion of the report, Harlowe scrawled in the margin, derisively, “The truth revealed!

The boyfriend breaks the case!” Harlowe, in reviewing the reports, also noticed that much of the evidence collected at the crime scene, including Patty’s bedding, was never sent to the state crime lab for analysis.

This was not done until several weeks after he took on the case, apparently as the result of his inquiries.

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After additional discussions with Marc Eisen, my editor at
Isthmus,
I got the go-ahead to bring a Police and Fire Commission (PFC) complaint against Lieutenant Riley. At Eisen’s urging, I called Riley in late March to tell him of my intent. I acknowledged the possibility that my understanding of the situation was incomplete and invited him to provide any information that might clear things up. Riley chose not to and hung up.

The following Monday morning, Detective Lauri Schwartz called me at
Isthmus.
She said she had something very important to discuss and asked to meet. I had some prior contact with Schwartz, regarding her concerns over media access to citizen complaints against police, after which I had praised her in print as “a good cop, one of many in Madison.” The only thing I knew about Schwartz’s involvement in Patty’s case was that she had seized the 911 tape to keep it from being released to me. We went to the coffee shop across the street.

Schwartz had just had a profound experience in the form of a three-day seminar called the Landmark Forum. This somewhat controversial program, an outgrowth of Werner Erhard’s “est,” helps people achieve personal breakthroughs, after which they are expected to bring in prospective recruits to hear testimonials. Schwartz, glassy-eyed and galva-nized, decided to pick me, saying she realized the good that could come to the community from our connecting on a personal level. She even offered to pay the seminar’s $350 cost. As a final incentive, she said she was now the lead detective on Patty’s case, and would be willing to discuss it with me once we had, thanks to Landmark Forum, “a common vocabulary.”

I ended up going to Chicago—a three-hour trip each way—to hear Schwartz and others deliver testimonials to the program, followed by a high-pressure pitch to sign up for the experience, which I resisted. The next day, April 1, 1998, I filed a formal complaint against Riley with the PFC. It charged that he had violated department policy regarding complaint acceptance and investigation, then lied to me in denying knowledge of Patty’s letters.

Schwartz and I remained in contact. She assured me she had no doubt Patty was correctly charged, saying the officers involved were

“believable” and “trustworthy.” She said there was evidence, including phone calls, that she could not share with me. And, she insisted, if an 108

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error had been made, there would be no reluctance to admit it: “We are committed to owning our mistakes.”

On the evening of April 14 Schwartz called me at home, saying Karofsky had asked her to get a “witnessed statement” regarding the case.

While another detective listened in, Schwartz asked if I had any relevant information. I said there was plenty of information in my articles, such as the corroborating testimony of therapist Moston, hypnotist Ackerman, and counselor Kilmark. Schwartz said she had not read these articles.

Harlowe, when I spoke to him the next day, scoffed at this:
Of course
she read the articles. What detective wouldn’t want as much information as possible? But Schwartz, it turned out, was apparently as clueless as she claimed. In her police report on this contact, she got details wrong—such as rendering Moston’s name as Linda M. Auston—that were stated correctly in my articles. Schwartz never contacted these other individuals. Her only interest, as Harlowe surmised, was to shore up the prosecution’s case. “Don’t trust her,” he warned me. “She’s potentially ruthless. She’s trying to manipulate you.”

As for Karofsky, Harlowe felt she was “trying to salvage a bad case.”

He knew that, when challenged, the first instinct of prosecutors and police is always to circle their wagons. And so he endeavored to appeal to their better instincts, to not put them on the defensive or make them feel that they would “lose face” by acting in his clients’ interest. It was through this sort of backdoor diplomacy, not by expressing the indigna-tion he felt, that Harlowe managed to get the charges against Pankow dismissed.

A Philadelphia-based expert who examined X rays at Harlowe’s request found evidence of two previous breaks to Alicia’s leg. Medical records showed her parents had some months back sought treatment for a leg injury they claimed was due to a swing accident. The expert, who had previously worked only as a prosecution witness, was prepared to testify that these breaks were consistent with systematic abuse.

Harlowe met with District Attorney Diane Nicks, suggesting it would be better for the office to reconsider its charging decision than for this new evidence to come out in open court. Nicks agreed. On April 16, a week before Pankow’s trial was set to begin, Nicks asked that the charges be dismissed, saying the investigation was being reopened:
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