Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (30 page)

Left:
Attorney

Mike Short

(2002 photo by

Mary Langenfeld.)

Below left:
Attorney

Brad Armstrong.

Below center:
Attorney

Michael Modl.

Below right:
Judge

John Shabaz.

Judge Gerald Nichol at the trial.

Defense witness Tom Woodmansee.

Defense attorney Mark Eisenberg.

The defendant.

Dane County District Attorney Brian Blanchard
(left),
with victim/witness specialist Mark Kerman.

Deputy District Attorney Judy Schwaemle. (Trial photos by Mary Langenfeld.) part four

f i n a l j u d g m e n t

28

For the Defense

Mark Eisenberg’s career as a lawyer began just as his father’s was falling apart. Self-confident to the point of arrogance and flamboyant to the verge of caricature, Don Eisenberg was once Wisconsin’s best-known criminal defense attorney. In the early 1980s he represented the state’s two most notorious accused murderers: Barbara Hoffman, a Madison massage parlor worker who allegedly conned sad sacks into taking out life insurance policies naming her as the beneficiary, then poisoned them; and Lawrencia “Bambi” Bembenek, a former Milwaukee police officer accused of killing her husband’s ex-wife. Eisenberg lost both cases, in ways that brought infamy to his name.

In 1984, the year after his sons Mark and Stephen became lawyers, Don’s law license was suspended over a conflict of interest in the Hoffman case. (He had simultaneously represented one of the key witnesses against her.) The original six-month suspension—imposed after he told the state bar association, as the press euphemized it, “to put its rules in a specific part of its collective anatomy”—was extended because he continued to practice and because, when Bembenek appealed on grounds of ineffective assistance of counsel, he proclaimed on Geraldo Rivera’s national television show that she was most likely guilty. Bembenek, amid mounting evidence of her innocence, later cut a deal to secure her freedom following a successful prison escape. (Much later, as Patty’s case neared its dénouement, she was back in the news, seeking to clear her name through DNA testing.)

Don Eisenberg’s reputation went from bad to even worse. In 1987 he was indicted by a federal grand jury on conspiracy and 213

214

Final Judgment

•

money-laundering charges; he was acquitted, and moved to Florida.

Two years later, his still-suspended law license was revoked by the Wisconsin Supreme Court over charges that he misused money in clients’

trust accounts. His sons represented him in a 1996 bid to reclaim his license, but the court turned him down, saying he lacked “the necessary moral character.” On his third try, in late 2000, Eisenberg got his license back. He remained in Florida but began doing legal work for his sons’ Madison-based law firm.

It was a successful, well-regarded outfit. Both brothers inherited something of their father’s passion and his fondness for flash and dazzle.

In June 2002 Steve Eisenberg won a stunning $7 million civil judgment from a local hospital for its failure to stop his client from leaping into a wall during a psychotic episode, causing paralysis. The man died soon after the judgment was awarded. Mark Eisenberg, the older of the two, wore expensive suits and neatly coifed hair and exuded an aura of self-satisfaction. But he was known for being well prepared and for fighting hard for his clients. Word that he had been hired as Joseph Bong’s attorney was considered a lucky break for Bong and bad news for Patty.

As a criminal defense lawyer, Mark Eisenberg gravitated toward tough cases in which the law and circumstance presented opportunities to win. He beat disorderly conduct charges against a sixty-year-old man who propositioned an undercover sheriff ’s deputy, saying there was nothing disorderly about one person asking another for sex. He sought, without success, to exclude statements his client, accused of being an accomplice to murder, had made to Detective Linda Draeger after initially asking for an attorney. He got a jury to reject a hate-crime charge (while returning a verdict of guilty for disorderly conduct) against a man who tormented his neighbors by, among other things, painting

“Lesbians will go to hell” on an old vehicle and then crushing it with a monster truck a few feet from their property line. The man, said Eisenberg, was just objecting to the women being “unneighborly.”

At the June 27 status conference, Public Defender Daryl Jensen broke the news: “Mr. Bong, through his mother, has now retained the Eisenberg law firm to represent him.” Judge Albert was skeptical, noting that no one from the Eisenberg firm was present. Bong, his head shaved completely bald, had this to say: “I didn’t know anything until
For the Defense

215

•

when I got here yesterday that we even had court.” The judge agreed to push back the preliminary hearing another thirty days but kept Jensen the attorney of record pending a formal substitution request. He also said the court would be “adverse” to further delays: “Out of consideration for the victim, this thing has to move forward.”

Short was incredulous that anyone in Bong’s family would have the financial resources to hire Eisenberg. The last time Bong was in trouble, his attorney was appointed by the state public defender’s office. Retainer agreements are confidential, but it’s possible Eisenberg agreed to a lower-than-usual fee because it was a high profile case.

On July 1 Mark Eisenberg formally became Bong’s attorney. “I don’t think this case is about Bong,” he told me soon afterward. “I think this case is about Patricia and her daughter.” He added brightly, “It’s a pretty good case.”

The preliminary hearing took place on July 22, 2002, before Judge Albert. A couple of reporters were present, as was Mike Short. The day before, Patty had met again with Schwaemle and Kerman to go over her testimony. She learned she would be the only witness. Eisenberg would stipulate that the DNA on the bedsheet belonged to Bong, so there was no need for police witnesses to establish the chain of evidence.

Patty was called to the witness stand and sworn in. She was quizzed, first by Schwaemle and then by Eisenberg, about the events of September 4, 1997. She spoke slowly, often pausing for long moments before answering. Her story spilled forth as on prior occasions.

“I was sleeping on my stomach and I woke up immediately to a knife to my throat and a guy in my bed,” she testified. “He told me to be quiet and nobody will get hurt.” And so on. The anal assault. The oral sex. The vaginal sex. The alarm going off, which “kind of scared both of us.”

Schwaemle asked what was, for her semen-based case, a critical question: did the man ejaculate? Patty, who had endured abuse on this point from attorney Armstrong, answered equivocally. “It’s hard to tell if he had an orgasm or not,” she said. “I don’t know if—I don’t remember or couldn’t tell, that part I don’t know. But he did finish.”

Eisenberg, in his cross-examination, returned to this point: “You couldn’t tell if he ejaculated?” “I guess he did,” she answered. He zeroed 216

Final Judgment

•

in on areas that had aroused police suspicion, like what time her alarm clock was set for and whether there was anything unusual about the man’s penis. He tried asking about Bong’s relationship with Misty, but the judge would not allow it.

Schwaemle, on redirect, asked one final question: “Did you know Mr. Bong at the time?” No, Patty answered, she did not. She was excused as a witness and made a beeline for the courtroom door. As she walked past the defense table, her composure faded and she began crying. Short followed her out of the room to give comfort.

“Based on the testimony I heard,” ruled Judge Albert, “I find probable cause to believe that a felony was committed by the defendant.” As was customary, he then assigned the case to another judge, Gerald Nichol, for future proceedings.

Nichol, then sixty-seven and still a regular hockey player, was considered one of the county’s best judges. He had served a single term as Dane County district attorney in the early 1970s, then worked as an attorney in private practice before being elected to the bench in 1988.