Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (22 page)

Rieselman produced the first draft of a complaint for a federal lawsuit. It named five individuals—Woodmansee, Draeger, Riley, Schwartz, and Maples—as well as the city of Madison. It listed fifteen grounds for action, including civil rights violations, false arrest, violations of the Americans with Disabilities Act, negligent and intentional infliction of emotional distress, defamation, and civil conspiracy. Short felt the suit was overreaching and underresearched—one of many areas of disagreement between the two Mikes—and wanted to take his own crack at it. They both agreed to hold off on filing; obviously, if the PFC

disciplined Woodmansee or if Feagles found the man who raped Patty, there would be stronger grounds for a civil case.

The final PFC hearing on Patty’s complaint against Woodmansee took place on March 31. The PFC skeptically inquired why it should pursue the matter on its own authority, and, at one point, Short asked Patty to speak to this issue. It was the first time anyone from the PFC

had heard a word pass her lips. “I was told by many people that I could take a complaint to the PFC free of charge, and when I did I found I was objected to on everything by this attorney,” said Patty, pointing to where Young was sitting. “So I had to try and hire an attorney with limited resources. I didn’t have any money, as I am still paying off the . . .”

“I guess we’re kind of getting off the path here,” interrupted Short, snatching back the reins. In fact, Patty’s inability to frame her appeal to the PFC in terms of legal arguments was itself a perfect argument for why the commission should exercise the independent authority the legislature had been so clear to grant. Short said Patty was “willing to take the stand” regarding any such action. The PFC agreed to consider this appeal and issue a written decision.

It would take the commission, which had voiced concern about the expeditious handling of Patty’s case, seven more weeks to do so.

The PFC harshly rejected Patty’s appeal, saying that while it had the statutory authority to file charges, “we have no practical or institutional resources for investigation and prosecution.” The commission, ignoring the promise of full cooperation made by Patty’s attorneys, claimed Patty 156

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had withdrawn her complaint “at least in part in order to avoid being deposed” and called her willingness to submit to examination “very uncertain.” In light of this, the PFC said it would “decline to test the limits of the statute and reconstruct our rules and policies in order to investigate and prosecute this Complainant’s case.”

It was a familiar outcome: Woodmansee was off the hook, and Patty was left dangling.

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For more than a decade, Axley Brynelson had been the city of Madison’s law firm of choice. Axley attorneys handled most of the municipality’s outside legal work and represented its insurer on disputed liability claims. During a five-year period in the early 1990s, this generated more than $1.5 million in fees. There was no competitive bidding, no performance reviews, and city officials were not allowed to see the firm’s itemized billing statements on liability claims. Asked in 1996 why Axley enjoyed this favored status, longtime City Attorney Eunice Gibson replied, “I don’t know.” But she was pleased with the quality of representation and felt the firm helped save the city money.

Key to these savings was Axley’s reputation for deliberately turning even minor claims into full-fledged legal fights to discourage people from seeking compensation. “I have seen a complete and utter reluctance by the law firm to discuss settlement,” said attorney Jeff Spitzer-Resnick, who represented a Madison man injured by police responding to an anonymous—and false—911 call. “The only reason I can see for this is to continually bill the client by extending cases.” Axley rang up $86,888 in fees defending against an action Spitzer-Resnick had offered to settle for $10,000.

In another case, Axley billed $177,027 fighting a wrongful termination suit by Madison’s former affirmative action officer. The law firm lost, resulting in a major judgment against the city (it eventually paid $441,000) and a withering rebuke from Circuit Court Judge Moria Krueger. The judge said Axley attorneys led by Michael Modl “tried to unduly complicate the task at hand” by bombarding her with arguments 157

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and case law “immaterial to the issues needing resolution.” She said the attorneys engaged in “obstinacy, mischaracterizing, and repetition to the brink of apoplexy”; their arguments were “lacking in sense and integrity”; and they “over-litigated the last stage of this case so dramatically that it tried one’s patience even to read their endless submissions.”

On the same day that Krueger delivered this scolding (she later entered a formal finding that Axley attorneys presented a frivolous defense), another judge sanctioned the firm for filing a specious legal action, ordering it to pay restitution. In yet another case, Axley collected $22,284 in fees to defeat a $3,000 claim from a man whose recovered stolen car was junked after Madison police sent notification to the wrong address.

Axley’s fondness for smash-mouth litigation was even turned against the city’s own employees. In the mid-1990s the firm went after Bob Brown, a Madison firefighter who retired after twenty-eight years of service when he was diagnosed as having suffered a heart attack while fighting a fire. A doctor who reexamined the case had raised questions about this finding but later reversed himself, saying he acted on the basis of incomplete information. Axley nonetheless tried to terminate Brown’s disability benefits and force him to repay two years of benefits he had received. Brown spent thousands of dollars of his own money fighting the firm before succumbing to a fatal heart attack that the former head of the city’s workers’ compensation program attributed to stress from this ordeal.

None of these cases forced reconsideration of the city’s allegiance to Axley. Not a single local politician raised a fuss. Madison’s risk assessment manager, Kevin Houlihan, proclaimed that insurance premiums kept coming down year after year—which was, from the city’s perspective, the only thing that mattered. Although other attorneys viewed the firm with derision (“There are normal ways of doing things,” one said,

“and then there’s Axley Brynelson’s way”), it was solidly ensconced as Madison’s defender against civil litigation. If Rieselman and Short followed through on their plan to file a lawsuit in federal court, it was Axley they’d be up against.

As it was, the two Mikes were having enough trouble just putting up with each other. Rieselman, broke and down on his luck, seemed to vacillate between impatience that the case was not moving forward and
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doubts about his ability to stay involved if it did. He quarreled with Short over strategy. He heard secondhand about a man who claimed he had consensual relations with Patty, making him potentially the source of semen on her sheets. Patty told Rieselman, truthfully, that she hardly knew this person and never had sex with him. But after getting into a spat with this man, Rieselman reported him as a suspect to special agent Liz Feagles. She tracked him down and obtained samples to be tested against the diminishing supply of recovered DNA. Patty, angered, said she didn’t want Rieselman to have anything more to do with her case. Rieselman accepted this graciously and played no further role.

Short was not sorry to see him go. Still, Rieselman’s impassioned belief that Patty was entitled to justice was instrumental in moving the case forward.

Feagles, meanwhile, had broken the code that kept Madison police from figuring out that “Lonnie Alvord,” whom both Patty and Misty identified as a suspect, was really Alonzo Elvord Jr. At the time, Elvord was in prison, serving a five-year sentence for the armed robbery he committed with his cousin Joey shortly after Patty’s assault. Feagles visited Elvord at the Kettle Moraine Correctional Institution. He said he knew Patty was blind and described her as “nice.” He denied involvement in her assault and said he was willing to submit samples for DNA testing. Feagles eventually did obtain samples, which were sent to the state crime lab for analysis, as were those from the man Rieselman had named. The results: negative for both.

In August, at Short’s urging, Feagles began checking out a new suspect: Kenneth. This was the man Dominic had been with the year before when he was arrested for attacking a stranger with a baseball bat.

Kenneth, it emerged, had past criminal convictions for battery, drunk driving, disorderly conduct, and child neglect. One previous domestic incident, which led to Kenneth being charged with battery and victim intimidation, had been investigated by a Madison police officer named Tom Woodmansee.

“I really think this is the guy,” said Short, disregarding the fact that Kenneth was Caucasian and would have been thirty-three at the time Patty reported being raped by a light-skinned black or Hispanic man in his early twenties. Feagles, in her pursuit of this angle, spoke to Dominic and others. Kenneth, who had been jailed for driving after revocation 160

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(fourth offense) and obstructing an officer, was released before Feagles could obtain samples for DNA tests. He then missed a mandatory court appearance on theft charges in Dane County, and a bench warrant was issued for his arrest. Feagles asked to be notified the next time he was in custody.

As summer turned to fall, Short put the finishing touches on his complaint for Patty’s federal lawsuit. He opted against including Riley and Maples as defendants, although his complaint still cited the failure of police to properly handle Patty’s letters and Maples’s assertion that Patty was charged because she recanted her recantation and went to the press. The final draft named Woodmansee, Draeger, and Schwartz as defendants and listed eight causes of action, including false arrest, denial of right to counsel, coercion, retaliatory prosecution, and civil conspiracy. The main points: police did not adequately investigate Patty’s assault, failing even to test bedding that was later found to contain semen; they used lies, threats, and psychological pressure to get her to confess; and they caused her great emotional distress through such actions as Schwartz’s call to Patty’s sister.

On November 17, 1999, Short walked into Madison’s federal courthouse—an imposing, dark-blue building adorned with a whimsi-cal dash of red neon—and delivered Patty’s complaint. He filed Patty’s name and address under seal and obtained a protective order requiring that these be omitted from any public filings. For the purposes of her lawsuit, she would be known as Patty Doe. “She’s pursuing this because she’s gotten no satisfaction from the system,” Short told
The Capital
Times.
“She wants the truth to once and for all be known.”

Short had some idea what he was up against. He had discussed the case with Hal Harlowe as well as Jeff Scott Olson, a prominent local civil rights attorney. As Olson saw it, Patty’s confession and Aulik’s ruling presented nearly insurmountable obstacles. Harlowe also advised against a lawsuit. But Patty wanted to go forward, and Short was willing to help. Their already slim chances were further diminished when the case was assigned to Federal Judge John Shabaz, one of two jurists in Wisconsin’s Western District.

Shabaz, a former Republican state lawmaker appointed to the bench in 1981 by President Reagan, was a staunch conservative with a reputation for siding with law enforcement. Wisconsin’s Western District,
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according to the U.S. Sentencing Commission, ranked as either the first or second harshest district in the nation from 1997 through 1999, as measured by the number of times defendants received sentences that exceeded set guidelines. As an arbiter of civil cases, Shabaz had moved to block student fees from going to campus groups he said advanced

“the homosexual agenda” and rubber-stamped the nation’s most restrictive law against so-called partial birth abortion; both actions were overturned. That summer Shabaz had dismissed a lawsuit against police officers who doused a pregnant woman in labor with pepper spray because her husband, in trying to rush her to the hospital, had tried to keep driving after being stopped for speeding. Shabaz said the woman had no grounds to sue even though she was sprayed, because her husband was the primary intended target.

Two weeks before Short filed his complaint, Judge Shabaz presided over a jury trial in another case of alleged police misconduct. Two black men, brothers Victor and Tre McNair, filed suit because officers from a Madison suburb drew guns on them and placed them in handcuffs after stopping them for a suspended license plate; at least seven squad cars responded. The McNairs, who were on their way to church, charged that police used excessive force; the jury agreed, awarding $10,000 in damages. Shabaz would mull this over for several weeks before substituting his own judgment—that the police did nothing wrong. He not only threw out the jury award, he ordered the brothers to reimburse the defense for $8,714 in legal fees. A federal appellate court later reversed Shabaz, saying “the police treated the McNairs like desperadoes who had been firing Tommy guns out the windows.” Ultimately, the police ended up with a $103,292 bill, including fees for the attorneys who fought to overturn Shabaz’s ruling.

Kenneth did end up behind bars again, and Feagles was able to obtain samples for testing. She also contacted Patty’s former boyfriend Russ to get samples from him. Both Patty and Russ had told police their relationship ended many months before the assault, so he could not possibly be the source of semen on her sheets. Patty found this development disconcerting. “Liz is not believing what I’m saying,” she lamented. “Why is she doing this now that news of the lawsuit is out?”

In early February 2000 both tests came back negative, and Feagles’s investigation went cold. The state crime lab, in testing these samples, 162

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utilized a newer scientific method that required only minute amounts of genetic material to create a DNA profile. As a result, the profile from the semen on Patty’s bedsheet was uploaded into a federal data bank that also contained profiles of convicted sex offenders. No match was found. Patty’s case remained an open file but was no longer actively pursued. Feagles’s case activity reports—thirty in all, totaling about seventy-five pages—were provided to the attorneys from Axley Brynelson but not to Short.