Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (35 page)

Woodmansee was excused and the jury was sent home for the night, with the usual instruction that they were not to read the local papers, both of which carried daily stories on the trial. (
The Capital Times
would note that “Woodmansee’s account of the interrogation of Patty on the day she recanted was strikingly similar to Patty’s account.”) Nichol and the lawyers stayed to hammer out jury instructions.

The following day, Friday, March 12, was the final day of trial. It began with a number of “housekeeping” tasks, performed outside of the jury’s presence. Eisenberg made what he called “one last-ditch effort” to bring in Misty and Bong’s known past sexual contact; Nichol again refused. Eisenberg also got turned down when he asked for dismissal of the charges on grounds that the description Patty gave of her assailant fit Dominic better than Bong. Then Judge Nichol ascertained, through a series of yes or no questions, that Bong was “freely and intelligently” waiving his right to testify. It was the only time Bong spoke at his trial.

The jury was brought back in and the defense called Captain William Housley of the Madison Police Department. He averred that Woodmansee, whom he had known for years, was “a truthful person.”

He also said that if a detective had gotten a tip on a suspect in an aggra-vated sexual assault and failed to look into it, as Misty’s testimony suggested, this would be investigated internally as a serious infraction and most likely lead to discipline. It was that tight a ship. Not mentioned was that Lonnie Elvord was clearly named as a suspect but this was never looked into, even after his arrest for the hotel robbery and abduction with his cousin Joseph Bong.

Schwaemle asked Housley if he was aware of cases where people confessed to crimes, even murders, they did not commit. “That has happened, yes,” agreed Housley. She also asked whether Woodmansee was

“incapable of making a mistake.” Shrugged Housley, “I suppose not.”

Linda Draeger had waited outside the courtroom the previous afternoon, prepared to testify for the defense. Eisenberg evidently changed 246

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his mind, because he never called her. His final witness, the deus ex machina of his defense, was Ben Donahue.

Donahue, then twenty-nine, told the jury he had been good friends with Joseph Bong for fourteen years. But he also said they hadn’t spoken since Bong “moved” in late summer 1997. The summer before this, he said, he and Bong ran into Misty. She wanted to buy some marijuana and Bong had some to sell. But Misty didn’t have money on her so the three of them drove to her place. She went into a back bedroom, and Bong followed. After a while, Donahue got “sick of waiting and went back to find them.” He peeked into the room and saw Bong lying back on the bed with his pants to his knees and Misty’s head by his crotch.

Schwaemle hardly went after Donahue at all. She focused on the fact that when Feagles tried to talk with him in December 2003, he had refused. She also got Donahue to admit that he and Bong had spoken in November 2003, quite a bit more recently than he had just testified. In fact, Donahue had visited Bong in prison, which the jury couldn’t be told. Donahue said he had four criminal convictions. The jury didn’t get to hear they were for theft, disorderly conduct, and intimidation of a victim to dissuade reporting.

The defense rested. Schwaemle called no rebuttal witnesses, even though Patty and Misty were outside the courtroom in case they were needed. Misty had maintained all along that she didn’t even know Donahue, but the prosecution considered it too risky to put her back on the stand. It would only increase the weight of this testimony in the jury’s eyes. Besides, the jury could decide on its own how implausible it was that Bong would be lucky enough to have an eyewitness to a sex act that could explain away the otherwise incriminating DNA. As Mike Short remarked after Donahue’s testimony, “I wouldn’t believe him if he told me today is Friday.”

After a short break, Judge Nichol spent a half hour explaining the

“principles of law” jurors were to use in reaching their verdict. They could consider only the evidence presented at trial, but in assessing it they could draw upon their common sense and life experience. Questions and comments from opposing counsel, even opening and closing statements, were not evidence. They must give no weight to objections and disregard any question the judge did not allow answered. Specific
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tests, which Nichol went over, had to be met for each charge. Jurors must establish guilt beyond a reasonable doubt. While it was their duty to give the defendant the benefit of any doubt, they were to search not for doubt but for the truth. There was also a special instruction, which the two lawyers had hammered out that morning: the jury was not to pay any mind to Woodmansee’s opinion of Patty’s credibility, since the jury was supposed to be the “sole judge” of such things.

And with that, it was time for closing arguments.

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Closing Arguments

Judy Schwaemle kept it as simple as she could. The jury, she said, had just two issues to decide: were the crimes in this case committed, and did Joseph Bong commit them? The evidence, she assured, led to only one answer.

As to the first issue, Schwaemle staked her case on the credibility of a single witness. Patty, she said, had come to court and told the same story she had told before to the 911 operator, to Jill Poarch, to the police, to her friends and family, in depositions, and at the preliminary hearing.

For six and a half years, she had stuck to this story, with only one exception: October 2. She stuck to it despite all of the hardship it entailed.

“If these crimes hadn’t happened to her,” Schwaemle told the jury,

“she could have given it up a long time ago. And frankly, who could have blamed her?” Patty sat in the courtroom’s front row, with Misty and other family members, throughout these closing arguments.

Yes, there were “trivial inconsistencies” in Patty’s account, admitted Schwaemle. But this was to be expected for a story told so many times to so many listeners, each of whom interpreted things differently. All these perceived inconsistencies were then used against her. Still, the hardest thing for Patty to bear were the words she had “uttered in a moment of hopelessness, isolation, and despair.” Of course she knew, as well as anyone, that her recantation had undermined her credibility. And still, said Schwaemle, she continued to seek justice, enduring the humiliation,

“because she wants you to find the truth.”

Consider how Patty had cried spontaneously on the witness stand, recalling what the rapist had said about her daughter. Consider the 911

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call. How could that have been an act? And then there was the crime scene itself. “Let’s look at the physical evidence,” said Schwaemle.

“Let’s do what Tom Woodmansee should have done, but didn’t.”

First, there was the empty bottle of Body Splash, which in the photo shown to jurors was partially covered by a sock. “Who left that there?”

The rapist, she speculated, had used this sock to wipe fingerprints off the items he touched—the alarm clock, the phone, the money bag, and, finally, this bottle. But Woodmansee could not have considered this possibility because the crime scene photos were not even developed until 1998, long after he abandoned work on the case.

If Woodmansee had done his job, argued Schwaemle, he would have realized that the bottom fitted sheet that had been on Patty’s bed was not among the items collected from the crime scene, nor was it left behind. Didn’t it make sense, she said, that a rapist who pulled the sheets off the bed may have taken this with him to avoid leaving evidence?

Maybe he used it to wrap up the knife, condom, and condom wrapper.

Maybe this is why there was not more blood found from the cut on Patty’s hand.

This was a rapist who knew what he was doing. He wore a condom.

He wore sweatpants that could easily be pulled down with one hand while the other held a knife. He took the fitted sheet with him when he left. Said Schwaemle, “This is a smart, calculating, careful predator.”

But instead of realizing this, Woodmansee botched the investigation and leapt to the wrong conclusion. He decided there “should be blood everywhere” because there was blood on the pillow and on the phone, but he never even asked what phone Patty used. And he never had the top bedsheet collected from the crime scene examined. When this was finally done, the following April, a crime lab analyst spotted visible semen stains the first time she looked at it. Even the fact that it was a tiny amount of semen corroborated Patty’s account.

If Woodmansee had considered the physical evidence, he would have realized that Patty was telling the truth. “Instead,” said Schwaemle, “his disregard of that evidence led him to a false conclusion

[and] led him to create bad evidence”—Patty’s recantation. He brought all of his mistaken beliefs and false assumptions and dumped them on her during his interrogation. It was no surprise that Patty gave in.

“People have confessed to a lot worse than lying,” said Schwaemle.

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“People have confessed to murders they didn’t commit.” And here was a woman who was especially vulnerable. Here was someone who, on account of being blind, “has to rely day in, day out, on what other people tell her is reality.” She needed to trust other people even to cross the street. Said Schwaemle, pointing to herself, “She’s not going to be able to contradict you if you say . . . my suit is brown.” Schwaemle, on this day, was wearing a black suit. It was her way of subtly reminding jurors that Patty had earlier been mistaken about the color of her clothes.

Woodmansee, Schwaemle noted, was not “the bad cop on TV.” He was, as they had seen, soft-spoken and apparently thoughtful and con-siderate. And here he was telling Patty in as many ways as he could think of that it didn’t happen. He knew she was lying. There wasn’t any evidence. He succeeded in overwhelming Patty “with what was stacked against her.” What did he mean, she was free to leave? “She doesn’t even know where she is!”

Schwaemle’s closing, laid out in her efficient, almost methodical way yet tinged with anger, offered as distinct an assessment as could be imagined from what her former colleague Karofsky had previously said in another courtroom about the same events: “The police officers in this case ought to be proud of what they did.”

In fact, Schwaemle continued, there was plenty of evidence, but Woodmansee’s “tunnel vision” kept him from seeing it. The SANE

nurse documented injuries, including a scratch that could have been caused by a fingernail. “Whose fingernail?” asked Schwaemle. Maybe Patty’s injuries were not more severe because she offered no resistance.

Maybe the rapist used his own saliva to lubricate his penis.

Schwaemle talked about the side issue of Dominic. If Patty had really set out to frame her daughter’s boyfriend, wouldn’t she have just come out and said it was him? She probably could have found a used condom in Misty’s room and planted that. It’s true Patty did come to believe Dominic was to blame, but this was the result of her own flawed investigation, after the police had dropped the case. She did, said Schwaemle, exactly the same thing as Woodmansee—“drew false conclusions based on an incomplete understanding of the evidence.”

What was the evidence that Joseph Bong committed the crime?

Patty was able to provide some description. He was young. He had short hair. He was mixed race or Hispanic. He seemed to know that she
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was blind, had a daughter, and kept money in the house. Perhaps he knew the front door was often left unlocked. And Joseph Bong had a source of knowledge—his cousin Lonnie—for all these things. The information could have even been conveyed innocently, in idle talk about Misty, whom both men knew.

And then there was the DNA evidence. Bong was the source of the only semen in Patty’s bed, the sheets of which had been washed two weeks before the rape. And his seminal fluid just happened to hit the same place on a queen-size bedsheet as an excretion from Patty. The amount—“seven little sperm”—was not a full ejaculation. It was more like an accidental spill, where the rapist may have momentarily set the condom down. Joseph Bong had tried his best to get away with it. “But for his little tiny mistake, he would have,” said Schwaemle. “Hold him responsible for what he did.”

Nichol called a break, during which one of the jurors learned that his mother just had a stroke. The juror was excused and the last alternate was tapped. Eisenberg began his closing argument around 1 p.m.

In his gruff, nasal voice, he asked jurors to use their common sense in deciding whether there was reasonable doubt. He said he would focus their attention on three elements: Misty, the DNA, and Patty.

Taking up the first element, Eisenberg apologized to jurors for having misunderstood the matter about Misty naming his client as a suspect. He thought this meant she had included Bong on her list of people who had been to her home. But he learned during trial that she actually claimed to have given Bong’s name to Woodmansee later on.

This, he insisted, was simply incredible. The jurors saw Woodmansee testify. Was he the sort of person who would ignore such a tip? Eisenberg recalled Captain Housley’s testimony about how seriously this would be taken. “Why would [Woodmansee] want to risk his career?”

Eisenberg poked at other aspects of Misty’s testimony. Her lack of recollection about certain things. How Elvord and Quamme both said they saw her mother’s bedroom door left unlocked. Misty glared at Eisenberg from the courtroom’s front row, her mother’s arm around her.

As for the DNA evidence, what did it tell the jury, really? Patty said the “sex,” as Eisenberg referred to it, occurred in the middle of the bed.

But the semen stains were up at the top of the sheet. The experts couldn’t tell when the semen got there. They didn’t know when the material from 252