Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (34 page)

During her direct examination, Misty confirmed having dated Lonnie Elvord before she dated Dominic. She said when her mother was away, “she kept the door [to her bedroom] shut and locked.” Misty was a “pretty heavy sleeper” and could never recall a time when her mother’s alarm clock woke her up. She put Dominic’s name on a list she produced for Woodmansee because he, like other people she named, had been to her place. She knew Joseph Bong and had “just met him once, before the second time I met him.” Both times, she was still in high school, from which she graduated in June 1997. Was Bong “ever at your house on Fairmont?” asked Schwaemle. Replied Misty, “Not to my knowledge.”

This threw Eisenberg for a loop. He had understood, incorrectly, that Bong was one of the names on the list of people who had been to her place. Eisenberg thought this because of Misty’s later claim that she had named Bong as a suspect. He spent much of his cross-examination delving into this point of confusion, with Misty insisting that she had passed Bong’s name to police much later, after John Quamme had showed up at her house and suggested him as a suspect. (This was just as my article in
Isthmus
reported, prompting a minor side issue, raised outside of the jury’s presence, during the rest of the trial. At one point, Eisenberg tried to have me barred from the courtroom as a potential witness; the judge denied his request and I was never called.) Eisenberg got Misty to admit her mother was “kind of joking and having a good time” and didn’t appear too upset on the night following the assault. He asked Misty if she smoked marijuana and she said yes, sometimes she did, but hardly ever while she was pregnant. Did she ever have sex with Bong in her mother’s bedroom? “No.”

On the following day, before the jury filed in, Eisenberg again urged the judge to allow in evidence of prior sexual contact between Misty and
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Bong. He said his witness, Ben Donahue, would testify that he went to Misty’s place with Bong and happened to walk in on them while they were having sex in a back bedroom. In light of this, he said it was even more important that testimony regarding Misty’s past sexual contact with the defendant be allowed into evidence. Schwaemle argued that this would be “highly prejudicial.” Nichol agreed, and reaffirmed his original ruling.

There was more haggling over Eisenberg’s wish to let Woodmansee and Draeger testify as to what they believed, not just what they said.

Nichol, who had already ruled on this, expressed his annoyance. The detectives’ beliefs, he said again, were not relevant, although the jury could and likely would infer from how they described their interaction with Patty that they “had some problems with her credibility.”

The first witness of the day was Dominic’s sister Dora. She testified that he was with her at their mother’s apartment when the alleged rape took place. He had come there drunk after a fight with another sister; she took away his car keys and had him sleep on her sofa. She knew that’s where he remained because she got up “every hour on the hour” to drink juice, per her doctor’s orders, and could see him there. Eisenberg, on cross, pressed her on this point. But Dora had “no doubt about it.”

Feagles testified briefly as to her role in the case, before and after Bong was identified as a suspect through DNA. The jury was not allowed to hear how this critical event happened—that Bong’s DNA was in the system because he was a convicted sex offender. When Feagles obtained a DNA sample from Bong on June 28, 2001, he initially denied knowing Patty. She mentioned Lonnie’s former girlfriend, and he replied, “Oh, Misty’s mom.”

Patty’s brother-in-law Paul, a twenty-nine-year-veteran police officer, attested to her credibility, calling her a “very honest, respectful citizen and person.” Then Karen Doerfer Daily was called to the stand.

Daily had never met Patty. She knew little about the circumstances of the crime or the many twists and turns it had taken. She didn’t even know the back story to her own involvement—how Hal Harlowe, in his defense of a woman being charged with the crime of lying to the police, had asked why evidence collected from the scene of an alleged rape had not been examined, more than six months after the fact. But what Daily did know was critical.

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Final Judgment

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Daily had worked as a forensic scientist with the Wisconsin State Crime Laboratory for more than a quarter of a century, including the last eight years as a DNA analyst. In April 1998 she had examined items including a blue bedsheet that had been retrieved from police storage.

On her initial visual inspection, Daily observed what appeared to be two spots with semen stains, in close proximity to each other. These she cut out and examined under a microscope to find a total of seven sperm heads. During Daily’s testimony, Schwaemle put on rubber gloves and opened the evidence bag, laying the sheet out on the courtroom floor so the jury could see the two holes.

Under further questioning by Eisenberg, Daily announced another finding whose significance she could not have known. The sheet, she related, contained a “copious quantity of dark brown hair.” This undercut Eisenberg’s efforts to discredit Patty’s claim that the assailant pulled her hair.

The stains had what Daily determined to be a mixture of male and female DNA. The sperm was in the same place as a larger amount of female material; there was no way to know if this other material was saliva, vaginal fluid, mucus, nasal excretion, or tears. Eisenberg posited that if the mixed DNA sample were made at the same time, there should be roughly equal amounts of material from the male and female source. “Not necessarily,” she said. He had better luck getting Daily to admit she could “not exclude” the possibility that the male ejaculate on the sheet was deposited “at some other time than the female portion.”

Several of the jurors had questions, two of which boiled down to this: Could the mixed male-female sample have come from the oral sex?

Daily thought that was possible. Whose DNA was it, anyway? Daily couldn’t answer that question, but said her former colleague, Curtis Knox, was prepared to do so. Schwaemle called him as the prosecution’s final witness.

A specialist in DNA analysis, Knox had interned at an FBI labora-tory in Virginia and worked at a crime lab in Louisiana, before a seven-year stint at the Wisconsin State Crime Laboratory. That ended two months earlier, when he took a job with a Madison-area company that developed technologies for analyzing DNA. Knox had been involved at several stages of Patty’s case. Back in July 1998 he had used the older, less efficient method of DNA analysis to exclude Dominic and two of
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Patty’s male friends. In early 2000 he used the newer, improved method, which required less genetic material but was even more accurate, to exclude other suspects. And in July 2001 he compared DNA from the bedsheet with that from Joseph Bong’s buccal sample. The DNA profiles, he said, “match exactly.”

But there was more. In June 2003 Knox analyzed the “nonsperm”

portion of the bedsheet sample. “It was a mixture of DNA,” he said, and it came from two contributors: Bong and Patty. The largest share of the sample was from Patty. Eisenberg again tried to argue that ratio should be about the same, but Knox said that there was no reason for this to be so. “No, I disagree with you,” the expert told the defense attorney. The prosecution rested.

32

Star Witness

Of all of the strange and arguably objectionable things that happened during Patty’s long ordeal, perhaps the strangest and most objectionable happened that Thursday, March 11, when Detective Tom Woodmansee came to testify. Suddenly, about a dozen Madison police officers showed up in court, badges visible, and sat on the benches behind Bong and his family. Captain Maples and two or three other officers conspic-uously dissented from this show of police support for a repeat felony offender whose most recent conviction was for terrorizing two people with a sawed-off shotgun, taking their places on the opposite side.

Woodmansee was actually the fourth defense witness of the day, but clearly the most important. The first three contributed little to the defense’s case.

Christopher Delp, an emergency physician, testified that he would expect to find more “evidence of trauma” in a person who was anally assaulted for up to a minute with no lubricant. But he also said the most common injuries were abrasions, and that even the use of saliva as a lubricant would reduce their likelihood.

David Exline, a privately employed forensic scientist whom the defense brought in from Pennsylvania, told the jury there was actually a test for traces of condom lubricant—rubber residue!—when condoms are used in sexual assaults. He said more rapists than ever wore rubbers, to avoid leaving DNA behind. He didn’t claim to have tested for condom lubricant in Patty’s case.

John Quamme, Bong’s cousin, was called to say he had been at Misty’s place on five to ten occasions and had noticed that the door to 242

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her mother’s bedroom was open. He denied ever suggesting that Bong should be considered a suspect, saying he didn’t even know Patty was raped until “a few years after it allegedly had happened.” As was agreed beforehand, Quamme, then twenty-seven, admitted to having two criminal convictions. The jury didn’t get to hear these were for battery and disorderly conduct, or that he was facing fresh criminal charges for allegedly pointing a firearm at someone while intoxicated.

Woodmansee was called to the stand at about 2:45 p.m. and testified for more than two hours; his contingent of police supporters remained in the courtroom behind Bong throughout. He was the defense’s star witness, the person who might single-handedly convince the jury there was no need to convict Patty’s rapist because there was never any rape.

Under questioning by Eisenberg, the detective reconstructed his investigation into the alleged assault. Patty, he said, was calm and open during their early discussions and able to provide details. She said “it wasn’t the rape that bothered her so much [as] the fact that she woke up with a knife to her throat.” She laughed when she described her assailant’s penis. She described the man as almost sympathetic, which Woodmansee said he found “unusual.” (It was one of several instances in which he casually strayed from the judge’s instruction, restated beforehand outside the jury’s presence, that he should refrain from expressing his opinions.) He noticed blood on the kitchen phone but couldn’t find any in the closet where she hid.

Eisenberg quizzed his witness about the events of October 2.

Woodmansee confirmed getting Patty to come to this meeting under false pretenses by saying he needed to collect some samples. He led her to the interview room, where Detective Draeger joined them. Right off the bat, “I confronted her with my belief that she wasn’t telling the truth.” Patty seemed taken aback and disputed this assessment. Her offer to take a polygraph test or to be hypnotized was rebuffed.

Woodmansee denied telling Patty the SANE nurse did not believe her. He testified that he didn’t say she did not act like a rape victim. He didn’t recall saying he might jail her on “suicide watch,” and she never said, “I want to leave.” In time, she admitted making the whole thing up. In this statement and when she elaborated on particulars, Patty appeared sincere. Woodmansee took her to the mental health center because he was worried she might harm herself.

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Final Judgment

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After more than an hour, Schwaemle got her chance to cross-examine the detective. One of her first questions, regarding his initial meeting with Patty, was this: “She’s
blind,
and you asked her for a
de
-

scription?
” “Yes,” answered Woodmansee. What phone had Patty used to call 911? Woodmansee thought she had said it was the kitchen phone.

Retorted Schwaemle, “She didn’t tell you that because you didn’t ask her, did you?” The detective thumbed through his forty-eight-page report, to refresh his memory, and eventually admitted that he couldn’t find he had.

Regarding the events of October 2, Schwaemle pressed Woodmansee on the difference between an interview and an interrogation. As she put it, “You interview witnesses, and you interrogate suspects.” He said the goal of both was to get at the truth, but agreed his meeting with Patty was an interrogation, since his purpose was to confront her. “I told her about the inconsistencies and asked if she could explain them.”

Schwaemle was angered by this sophistry. Woodmansee, she charged, hadn’t asked Patty open-ended questions; he made statements designed to overwhelm her. Schwaemle went through some of them.

“You told her there was no evidence that she had been assaulted at all, didn’t you?” Responded Woodmansee, “I told her the SANE kit . . .

showed there was no sign of sexual assault.” He said he put aside three or four child abuse cases to work on Patty’s case, didn’t he? “It’s possible, yes.” In like fashion, Schwaemle got the detective to admit telling Patty that there was no blood where blood should be. That the alarm clock times did not add up. That Patty seemed to be able to see some things well. That her boyfriend and Misty had raised doubts about her.

Had Woodmansee threatened to put Patty in jail? “No,” he answered firmly. Schwaemle asked if he recalled testifying before Judge Aulik in July 1998 that a supervisor had given him two options, which he then discussed with Patty. His memory thus refreshed, Woodmansee admitted, “I told her we had options of Dane County Mental Health or she could be arrested and put in jail.” For once, the suppression hearing worked in Patty’s favor.

Finally, Schwaemle made Woodmansee admit to his ruse about rubber residue, and then demanded, “If you are not trying to overwhelm her with how much evidence is stacked against her, why are you making stuff up?” Replied Woodmansee, “It was a bad ruse.” Schwaemle wasn’t
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done with him. When Patty finally did confess and gave the answers the detectives wanted, “what you interpreted as sincere could well have been resignation.” Woodmansee: “It’s possible.” Eisenberg, on redirect, got Woodmansee to say his comment about putting Patty in jail was made
after
her confession, when police were deciding what to do.