Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (32 page)

Another area of dispute involved Dominic. Schwaemle did not seek to exclude that Patty identified him as a suspect, agreeing it was fair game to use this to impeach her credibility. But she did want to keep out the various reasons this seemed to make sense. These included his physical appearance and his history of violence against women. Eisenberg objected, saying this went to “the identity of the perpetrator.” It thus became clear that Eisenberg planned to argue, as part of his defense, that Patty’s initial suspicions were perhaps correct: she was raped by Dominic. The judge agreed to allow testimony on Dominic’s appearance and habits, not his prior crimes.

226

Final Judgment

•

A final matter was whether the defense could argue that Patty “behaved in a manner inconsistent with a victim of sexual assault.” Eisenberg declared that Patty “had a party and was laughing and joking after the assault.” Nichol found this “marginally relevant” but “unduly prejudicial” and ruled that it could not come in.

At one point, when discussing whether Madison police could testify as to why they did not believe Patty, Eisenberg asserted, “The jury is going to know anyway when we’re done with the trial why they didn’t believe her.” Nichol smiled broadly and said, “At least you hope so.”

Clearly, this was a case in which the jury’s judgment would reign supreme. All the years of contention involving scores of players, all the thousands of pages of documents, would be superseded by the conclusions of twelve ordinary citizens after a few days of exposure to selected evidence.

Patty spent much of the Friday before trial going over her testimony with Schwaemle and Feagles. They listened to the tape of Patty’s 911 call and heard something that others had managed to miss: during the call, Patty’s alarm clock suddenly starts beeping, corroborating what she said about the snooze alarm. Schwaemle was delighted with this find and others that Feagles had already made. But she cautioned Patty that the case could go either way. “Hope for the best,” she said. “Expect the worst.”

On Monday, March 8, 165 citizens answered the call for jury duty at the Dane County courthouse. They were parked in a large room and shown an instructional film explaining the process in terms of civic duty:

“With the right to trial by jury comes the responsibility to serve on one.”

Then they waited to be dispatched in groups to various courtrooms in need of juries. Most would eventually be sent home without being picked. An especially large group—forty-four prospective jurors—was marched off to Judge Nichol’s courtroom around 11 a.m.

In the courtroom beforehand, Nichol ruled that the police witnesses could testify about their statements, not their beliefs. He also agreed to let the prosecution add a witness, Patty’s friend Cheryll, who had spoken with her on the day after she recanted. At this, Eisenberg renewed his push for what he said was similar evidence, regarding how Patty was “laughing and joking” after the sexual assault. The judge

“Expect the Worst”

227

•

seemed disinclined to change his mind, but then Schwaemle, bizarrely, dropped her objections to this testimony if it was clear that alcohol was involved.

Bong, now twenty-eight, sat at the defense table, looking like a college student, with wire-rimmed glasses, gray plaid shirt, and crisply pressed pants. He would wear sharp new outfits on each day of the trial: a clean, white dress shirt, a bone-colored pullover, a gray shirt and black vest, a tan shirt and darker vest. The idea was to keep the jury from knowing he was a convict. Attached to his leg under his pants was a

“stun pack” that one of the bailiffs in court could activate with the push of a button, delivering a 50,000-volt, low-amperage jolt, should he try to make a break for it. This device and other restraints made him walk with a slight but perceptible limp.

By prior agreement, prospective jurors were presented with a one-page questionnaire on a clipboard. The questions ranged from “Where do you work?” and “Have you ever served as a juror?” to “Have you ever smoked marijuana?” and “Have you or anyone you know ever had a bad experience with a person of another race?” It also asked whether they could be “a fair and impartial juror in a case in which an African-American (black) man is accused of sexual assault of a white woman.”

(All forty-four prospective jurors were white; slightly more than half were female.)

Then began the process of sifting and winnowing, which took several hours. Additional questions were put to juror pool members collectively in open court and, individually, in the judge’s chambers. Did they know the defendant, his attorney, the prosecutor, any of the likely witnesses, or each other? A few had extraneous connections, like a friend in the district attorney’s office, but felt they could still be fair. Had they read about this case, which Schwaemle said was sometimes referred to as “the Patty case,” in
Isthmus
or other media? Most hadn’t.

Both sides used this opportunity to plant ideas in jurors’ minds.

Schwaemle asked whether there was anyone in the pool who could not recall ever having told a lie. No hands went up. She then asked, “Would any of you automatically dismiss a witness who admits that he or she didn’t tell the truth?” This drew the same number of hands. Eisenberg, in turn, asked whether any jurors believed an alleged victim of sexual assault “could never make it up.” None did, of course.

228

Final Judgment

•

Two women jurors were excused due to child-care duties. One young man in a leather jacket touting the NASCAR Winston Cup got the boot when he “couldn’t guarantee” his bad experiences with cops, including his own police-officer father, wouldn’t skew his judgment.

A woman who felt she would have a hard time with what Eisenberg promised would be “very graphic and very nasty” sexual assault details was also let go.

A pool of twenty-four jurors was maintained and replenished from the courtroom reserve. After all of the questions were asked, Eisenberg and Schwaemle each struck five jurors from the bunch. They excluded a deputy sheriff who had interviewed rape victims and knew a thing or two about evidence collection and a lab technician who admitted knowing something about the science behind DNA.

The resulting panel of twelve regular and two alternate jurors consisted of nine women and five men. It included a retired registered nurse, two active health-care workers, a self-employed real estate broker, a computer technician, an insurance company executive, a day-care provider, a homemaker, and a student still in high school. Nichol’s clerk had them collectively swear to “well and truly try the issues in this case . . . and a true verdict give.” Then the judge ran through some rules.

Jurors were not to let their personal feelings or biases or prejudices affect them. They were not to talk about the case with anyone, including each other, until deliberations began. They were admonished not to read press accounts, including a trial preview piece on the front page of that day’s
Capital Times.
They could not use the Internet or other sources to independently investigate the case. They must presume the defendant’s innocence and not draw any inferences if he declined to testify on his own behalf. They must find guilt beyond a reasonable doubt, which was, said Nichol, “a doubt based on reason and common sense, a doubt for which a reason can be given.”

It was now 4:15 p.m. The judge turned the floor over to Schwaemle and Eisenberg for their opening statements. The trial in the case of
State of Wisconsin vs. Joseph J. Bong
was about to begin.

30

Patty Takes the Stand

In an early episode of the television crime drama
NYPD Blue,
a defense attorney prepping a police witness declares, “The truth and a trial have about as much to do [with each other] as a hot dog and a warm puppy.”

Trials are about strategy. They are about marshaling evidence and arguments. They are about who can present the stronger case or make the other side’s case seem weaker. But in terms of getting at the truth, trials may be, to paraphrase Winston Churchill on democracy, the worst possible approach, except for all the others that have been tried.

Schwaemle, who throughout the trial had special agent Feagles at her side, used her opening remarks to lay out what happened, from Patty’s point of view: the assault, the terror, the knife at her throat in the middle of the night, the inability to see her attacker. Tellingly, she spent as much time describing the events of October 2, when Patty recanted under pressure from the police. She was told that nobody believed her—not the SANE nurse, not her daughter, not her boyfriend. “They persuaded her that she was all alone in this.” The police even lied about an imaginary test for latex residue. And so, “in despair,” she told the detectives what they wanted to hear. But, the very next day, she returned to her original account, which was substantiated with the discovery of semen that was ultimately traced to Joseph Bong. The path to this trial, said Schwaemle, “has had some twists and turns in it, but it’s about to come to an end.” That would happen when the jury found Joseph Bong guilty as charged.

Eisenberg began with a point-blank declaration of his client’s innocence: “Joseph Bong did not sexually assault [Patty]. He did not break 229

230

Final Judgment

•

into her house, and he did not take anything from her.” Like Schwaemle, he intended to make Patty the centerpiece of his case—except his goal was not to empathize with her but discredit her. This alleged victim, he said, had changed her story again and again “to suit her needs.” The details of the alleged assault were all wrong. She had this crazy idea it would be good to help the man ejaculate, thinking, who knows why, that he would then leave. The condom appeared “out of nowhere” and disappeared into the same place. There was blood on the pillow but not in the closet or on her clothes. She implicated another suspect and became “more and more convinced” it was him. Bong “does not even come close to the physical description” she gave of the perpetrator. The police version of the recantation was “100 percent the opposite of what

[Patty] says.” There was a good reason his client’s DNA was found in Patty’s bed, which Eisenberg would explain in time. And then, he told the jury, “You will find Joseph Bong not guilty of these charges.”

The jury was excused for the night. The following day was Patty’s turn to testify and Eisenberg’s chance to destroy her credibility. Beforehand, in a conference room across the hall, Mark Kerman warned Patty’s mother and other family members and friends that the defense attorney would say things so “offensive” they’d want to jump up and object, which of course they shouldn’t do. When Patty joined the gathering, he said the verdict could go either way but “whatever happens, Judy and I believe you. We won’t stop believing in you.” He also warned that some Madison detectives were so reluctant to admit they were wrong

“they may even try to help the defense.”

Patty actually testified twice, the first time for a few minutes before the jury was brought in. Eisenberg wanted to keep out that she offered to take a lie detector test when police confronted her on October 2, so Patty was sworn in to relate the circumstances under which she made this offer. Eisenberg asked if she thought a lie detector test would be

“admissible” in court; she had no idea, saying only that she considered them reliable. Eisenberg said the standard set by case law required a belief in the test’s admissibility. Nichol, after recessing to his chambers to review the law, decided to allow this in, over Eisenberg’s continued objections. Requiring a belief in admissibility, the judge ruled, was “too much to expect of a lay witness.” Indeed, he cracked, “I don’t think most lawyers know.”

Patty Takes the Stand

231

•

Throughout the trial, a group of between six and nine members of Bong’s family, including his mother, sat somberly on the wooden courtroom benches behind him. He scarcely acknowledged their presence, which seemed as obligatory as his. On the opposite side gathered members of the media and a fluctuating cast of characters who were there principally to support the victim or the prosecution. These included Patty’s mother and sisters Betsy and Sue, Mark Kerman, Brian Blanchard, Mike Short, Hal Harlowe, Connie Kilmark, Cheri Maples, and Diane Nicks. As witnesses, Patty and Misty had to keep out of the courtroom except when they testified, until the closing arguments. They could not read press accounts or get information from those allowed inside.

Judge Nichol excused one of the female jurors due to a family medical emergency. That left eight women and five men. The bailiff called out “all rise for the jury,” as he would whenever they filed into or out of the jury box, and they plodded to their assigned places. Patty was called back to the witness stand and sworn in.

Schwaemle began with nearly three hours of direct examination, beginning with questions about Patty’s visual disability. “Can you see what I’m wearing?” the prosecutor asked from a distance of about fifteen feet.

“I could tell that it’s black,” replied Patty. Schwaemle was wearing a dark brown suit.

Then Schwaemle coaxed forth relevant details about the assault.

Patty kept money from her business and a separate phone line in her room, which for this reason was always kept locked when she was not there. She had had a fitted bottom bedsheet as well as a flat top sheet on her bed. She washed her sheets about two weeks before the assault.

Patty was mostly calm and confident in her replies, delivered after several seconds of reflection. But when she recalled the things her assailant had said about Misty, Patty’s voice quaked and she began to cry.

“He asked where my daughter was,” she told the jury. “And he asked if I thought my daughter would be a good fuck.” Schwaemle helped Patty locate the box of tissues on the witness stand.

Patty cried again when the tape of her 911 call was played for the jury. Several jurors seemed to squirm to hear Patty’s distress and Misty’s squeals and wails. Afterward, Schwaemle called their attention to the sudden beeping of an alarm clock about halfway through.