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 or 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 Madison 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. '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 Gene Parks, 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 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.' She later entered a formal finding that Axley attorneys presented a frivolous defense.
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 28 years when he was diagnosed as having had a heart attack while fighting a fire. A doctor had raised questions about this finding but later reversed himself, saying he acted based on 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 worker's 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 proclaimed that insurance premiums kept coming down year after year ' which was, from the city's perspective, the only thing that mattered.
If attorney Mike Short followed through on his plan to file a lawsuit against the police in federal court, it was Axley he'd be up against.
Short, then just a few years out of law school, was a Madison attorney who got pulled into being an advocate for Patty, a legally blind Madison woman.
On Sept. 4, 1997, Patty was raped at knifepoint by an intruder in her home. The case was assigned to Madison Police Det. Tom Woodmansee, who came to doubt Patty's account and focused suspicion on her. On Oct. 2, 1997, he and another detective accused her of fabricating the rape. Faced with a barrage of police pressure and lies, Patty recanted, then promptly returned to her original account.
In February 1998, Patty was charged with obstructing an officer, a misdemeanor, for having reported being raped. The charge was dismissed more than six months later, after the belated discovery of crime-scene semen. But police and prosecutors continued to suggest that Patty had lied. She fought back, but her efforts were rebuffed by the Madison Police Department, then-Mayor Sue Bauman, and the Madison Police and Fire Commission.
Short first met Patty in early 1999 and played a role in her PFC complaint. Soon her determination to fight for vindication became his own. He drafted a complaint for a federal lawsuit.
The complaint named Woodmansee and two other Madison detectives, and listed eight causes of action, including false arrest, denial of right to counsel, coercion, retaliatory prosecution and civil conspiracy. Its 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.
On Nov. 17, 1999, Short walked into Madison's federal courthouse ' an imposing, dark-blue building adorned with a whimsical dash of red neon ' and delivered Patty's complaint. '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.'
Hal Harlowe, who had defended Patty in the criminal case against her, advised against filing 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, was appointed to the bench in 1981 by President Reagan. A staunch conservative, Shabaz 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 of 1999, 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, Shabaz presided over a jury trial in another case of alleged police misconduct. Two black men, brothers Victor and Tre McNair, had officers from a Madison suburb draw guns and slap on 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 ended up 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. An appellate court later reversed Shabaz, saying 'the police treated the McNairs like desperadoes who had been firing Tommy guns out the windows.' Ultimately, the cops ended up with a $103,292 bill, including fees for the attorneys who fought to overturn Shabaz's ruling.
Three Axley attorneys were assigned to counter Patty's complaint, including senior partner Brad Armstrong and associate Mike Modl.
Robust and domineering, Armstrong turned 59 the month Patty's lawsuit was filed. A former UW'Madison football player, his style, honed over three decades of practice as a civil defense attorney, is to box his rivals into a corner and bully them into submission. Others in the firm feared him, with good reason: He is fiercely intelligent and capable of great cruelty. He is also deeply religious, a leader in his church, Bethel Lutheran.
Two days after Christmas, Short met with his rivals at their offices in downtown Madison to discuss scheduling and discovery. Armstrong warned him about the resources that Axley intended to employ in the detectives' defense. Short was not intimidated, but perhaps he should have been.
In early 2000, Axley filed an impetuous answer to Patty's complaint. It admitted that Woodmansee made a false representation in securing Patty's 'confession,' but denied almost everything else. It even denied things Woodmansee had put in his report and admitted under oath, such as telling Patty that her vision was not noticeably bad.
At times, the querulousness of the Axley attorneys defied comprehension. Paragraph 61 of Short's complaint read, in its entirety, 'Plaintiff then stated, 'Okay, I made the whole thing up.'' Axley's answer: 'Admit only that Plaintiff admitted, 'Okay, I made the whole thing up' and deny the remaining allegations in paragraph 61 of Plaintiff's Complaint.'
This filing was followed in late January by Axley's 'first set' of interrogatories and requests for production, which filled 24 pages with dozens of demands. Among other things, Axley asked Patty to identify every occasion in her life in which she received 'any treatment from any health or mental health provider.' It wanted the names of providers, the dates of each treatment, and 'your entire medical history as it relates in any way' to these visits.
The responses Short eventually submitted were past deadline and incomplete; in most cases, he declined to answer Axley's interrogatories, saying he first needed to conduct discovery. But he did open up his files to Axley's inspection, including turning over a copy of the journal that Patty had begun writing about the assault and its aftermath. Patty was deeply distressed: this was something she produced for herself, to help sort out her experiences, and now it was being given to people looking for things to use against her. She also signed releases to let Axley obtain medical records from every doctor or mental health professional she could remember visiting.
Axley Brynelson was not satisfied. Andrew Clarkowski, the third attorney assigned to defend the city against Patty, filed a motion in early March 2000 to compel Short to comply more fully with the firm's discovery demands. This led to a hearing at which Judge Shabaz came down firmly on Axley's side, granting the motion to compel and ordering Short to pay the costs of bringing it. The judge also strongly signaled that he would respond favorably to a motion to dismiss.
'I don't understand the modern practice of law, obviously,' said Shabaz, noting that if he were a lawyer facing a similar situation he 'would have immediately moved for summary judgment.' The judge opined that Short's failure to fully comply with the discovery request was essentially an admission that he had no case.
'The fact is that this is the best response the defendant could have received. So I don't understand what's going on here, unless there's an awfully deep pocket and the defendant is interested in running up the meter.' As if this were too subtle, Shabaz expressed his 'hope that the comments of the court would be pursued,' reminding the Axley lawyers that 'you don't have to wait' to file a motion seeking dismissal.
The Axley lawyers did not bite, preferring to keep open the spigot of billable hours through exhaustive depositions that in the end, arguably, would help achieve Patty's goal of letting the truth be known, once and for all.
Brad Armstrong got right down to it. Less than four minutes into his deposition of Patty on March 15, 2000, the Axley attorney sized up the frightened woman across the conference table and asked, 'Did [your father] ever physically or sexually abuse you?'
It was the kind of question ' tactless, insolent, abrupt ' he would pose again and again during Patty's first deposition that day and two more to come. Armstrong asked about her long-past suicide attempts and the sexual abuse inflicted by her stepfather. Interspersed were comments insinuating that Patty was a complete imbecile, caught up in a drama she lacked the capacity to comprehend. To wit: 'You are involved today in a lawsuit. Do you understand you're involved in a lawsuit?'
Throughout these depositions, Armstrong subjected Patty to the kind of questioning most defense attorneys representing rapists would never try in court, because it would be barred under rape shield laws and alienate juries. His strategy was clear: to batter Patty psychologically in order to get her to make incriminating admissions, just as the police officers he was representing had done.
None of the information obtained by rummaging through the painful details of Patty's past was used in pleadings to the court; Armstrong's purpose was apparently to exploit her emotional vulnerability. All three depositions took place on his turf, in the offices of Axley Brynelson. Mike Modl was present for the first two, Woodmansee for all three. The detective made his presence known by sighing frequently.
There was not much that Short could do to protect Patty. Depositions are open discovery, and even questions that draw objections must still be answered. Short did repeatedly object, on grounds of relevance and the manner in which questions were framed. Armstrong, in response, sprayed him with venom.
'Be quiet now,' he demanded early in the first deposition after Short objected to a question phrased as a statement. 'Excuse me?' replied Short. 'I said be quiet now,' repeated Armstrong, warning of likely 'counseling sessions with the judge' if Short kept interfering.
Armstrong went through Patty's entire history of relationships, with a particular interest in whether they involved abuse. 'When did you first have sexual intercourse?' he asked, over Short's objection. 'I was 13,' said Patty. 'And with how many men have you had sex in your life?' Patty wasn't sure. 'Hundreds?' asked Armstrong. Actually, she said, it was more like 15.
'And how many men have sexually abused you in your life?' Only her stepfather. 'And in your life how many times have you claimed that you have been raped?' Just once, but she had on two occasions extricated herself from situations where she thought an assault was about to occur, including the time she pushed out a stranger who walked into her house.
Armstrong found this incredible, asking if the man was 'some kind of a dwarf.' He also asked, 'Did you have any voluntary sexual contact before you insisted he leave?'
After several hours, Short requested a break. When he and Patty were alone, she broke down and wept. She was shocked by Armstrong's meanness and unnerved by Woodmansee's presence in the room. Short tried to reassure her, saying she was doing fine.
When the deposition resumed, Armstrong delved into information he gleaned from Patty's psychological records. He asked again about Patty's stepfather, times she had been hospitalized, boyfriends who had mistreated her. It was like a medley of blues tunes, meant to focus Patty's attention on bad things in her life. Having established this soundtrack, Armstrong for the first time asked about the issues at hand: 'You claim, as I understand it, Patty, that on Sept. 4, 1997, you were raped at your place on Fairmont?'
'Right,' Patty answered.
'Why do you say you wouldn't make up that story?' wondered Armstrong. Patty couldn't imagine anyone making up such a thing and would never think to do this. Armstrong: 'Have you ever made up any stories before?' Probably, answered Patty. He had her there.
For Patty, the most painful moments were when Armstrong produced her rape-account journal. Armstrong quizzed her at length, reading passages she never intended anyone to see, such as how, 'in hopes of getting him to climax sooner, I sensuously moved my tongue around the tip of his penis and gently caressed his testicles.'
'You're making fun of it,' Patty protested. 'I'm asking questions about it,' said Armstrong. 'I'm sorry however you feel about it.' He kept reading: 'I could hear him responding positively as if he were my lover.' 'Right?' asked Armstrong. Patty was crying. 'I'm going to object again,' said Short. 'Correct?' asked Armstrong, ignoring him. 'I just wish I never wrote that thing,' said Patty.
'And what was there about his response,' asked Armstrong, 'that seemed as if he were your lover?' Patty: 'He just made a couple of groans, moans.' This 'strategic move,' he read on, caused her shame and embarrassment. 'I'm not sure what you mean there,' he said. 'Is it the rape that shames and embarrasses you or your strategy to help him have an orgasm and caressing his testicles that embarrasses you, or is it something else?'
'Yeah, the method of helping him,' answered Patty, humiliated. But this strategy didn't work because the rapist didn't climax? 'No, he didn't,' said Patty. Armstrong did not relent: 'But it was your plan that he would have an orgasm and he would ejaculate in your mouth?' 'Right,' said Patty.
Why, if 'you didn't want to have sex,' had Patty positioned herself so the man could enter her vaginally? 'I wasn't fighting the guy at any time,' she said. 'I know I should have but I wasn't.' On those two other sexual assault attempts, Armstrong noted, Patty had successfully fought back, even though she was alone. But during the alleged rape on Fairmont, where 'you had another person in the apartment to help you fight the assailant,' she did nothing to resist. 'Why is that?'
The man had a knife and she was worried about her daughter Misty, in the next room. 'I didn't want him to hurt anybody,' she said. 'But,' exhorted Armstrong, 'he never did hurt anybody, did he?' Patty: 'I didn't know at the time what he was going to do.' Armstrong kept at it. 'This person never did hurt you at all, did he?' Short objected, but Armstrong paid him no mind. 'Did he?'
Patty knew what was expected of her: to give in, to back down, to concede defeat. To say all right already, you win, I give up. I'll say whatever you want. I'll do whatever you want. I'll let you walk all over me. Almost her whole life, this was how things had gone. But not this time.
'No,' she answered. 'But I didn't know he wasn't going to. If I fought, he may have.' Armstrong ridiculed this: 'Was there anything that this person did that was forceful in the course of this event?' Said Patty, 'Just the fact that he had a knife I felt forced.' Persisted Armstrong, 'Did he ever in touching you physically force anything?'
Patty's hurt was turning to anger. 'I don't know what you're saying,' she retorted. 'Did I want him to have sex with me? Is that what you're saying?' Replied Armstrong, peevishly, 'I assume the answer is no.'
'Right,' said Patty.
Armstrong remained on the offensive. Did the man, with any part of his body, use force on her? 'He did hold my hair, my head,' replied Patty. 'He pulled my hair. I felt the knife a couple of times. It didn't hurt. So he didn't beat me. Is that what you're asking?'
'Well, he didn't do that, did he?' crowed Armstrong. 'No,' said Patty.
Patty's second deposition, on March 21, was just as brutal. Again, much of the deposition was devoted to exploring personal areas that had nothing to do with the conduct of police. Armstrong lambasted Patty about how, after the rape, she let Misty stay 'back in the rape apartment, alone.' What steps had she taken 'to protect Misty' during this period of time? Patty had urged Misty not to stay, to no avail.
Armstrong then asked Patty about the daughter she gave birth to at age 14, who was raised by her mother: 'Why did you leave [this daughter] in the home with your stepfather to be raised?'
Short objected. Patty cried. 'I was a kid,' she pleaded. 'I thought I was the only one being abused.' Armstrong showed no mercy: 'And at that time, recognizing that you were a kid, you had no concern that your stepfather might sexually abuse your first daughter?' Patty said she was never aware of any abuse. 'Have you asked her?' pressed Armstrong. 'No,' admitted Patty.
Armstrong called Patty's attention to the section of her 'diary' where she described her first meeting with Woodmansee, and how he seemed to exude 'obvious arrogance.' What did she mean by that? Well, for one thing, said Patty, Woodmansee told her straight off that he was going to do a better job than the police who had already questioned her.
This set Armstrong off. 'Weren't you real happy,' he asked, 'that somebody was going to do a better job in questioning you to find out who raped you?' He then chided Patty for writing that Woodmansee, during this encounter, was frustrated with her inability to remember details. Wasn't this to be expected from someone 'working very hard with the victim to get some answers that might help solve the crime?'
Patty said she felt intimidated, recalling how Woodmansee had suggested the two of them might have to 'role play' the rape if she couldn't get it right. Armstrong berated Patty's discomfort with this suggestion: 'And you are upset that he's trying to be very thorough and do whatever is necessary to help you remember to the best of your ability what happened?'
Patty said she thought Woodmansee's 'pressuring' was counterproductive. He made her feel as though 'I can't remember' and 'I don't know' were not acceptable answers and expressed his frustration by sighing a lot.
'So what?' interrupted Armstrong.
Replied Patty, 'What do you mean, 'So what?'' She couldn't believe she had to justify her opinion that Woodmansee's sighs were inappropriate, even as he was sitting right there in the deposition room sighing up a storm. Armstrong erupted: 'You have an officer trying to solve your rape and he's frustrated by your answers and he's sighing. Who cares?'
After hours of this sort of questioning, during which he continued to denigrate Patty about 'the rape you claim happened,' Armstrong turned his attention to the events of Oct. 2, which were at the heart of the lawsuit. It was here that his efforts to break Patty's spirit paid off.
For a long time she held firm, maintaining that the entire time she was at police headquarters, she felt she was in custody. She recounted that she wasn't allowed to leave to smoke a cigarette and that when she asked to come back the next day with a lawyer or counselor Woodmansee had refused, saying, 'You'll just change your story.' But then, in a rapid-fire exchange, Armstrong succeeded in strong-arming Patty into a series of admissions that would undermine her cause of action.
Armstrong: 'Did you ever ask Tom [Woodmansee] or Linda [Draeger, the other detective] if you were free to leave?'
Patty: 'No.'
Armstrong: 'Did you ever tell Tom or Linda that you wanted this interview or interrogation to stop and you wanted to go home?'
Patty: 'Not in those words, no. I told him I was telling him what they wanted to hear so that I can leave.'
Armstrong: 'Did you ever attempt to get up and walk out, announce you were leaving and make the move to leave?'
Patty: 'No, I didn't feel ' they wouldn't have let me.'
Armstrong: 'So is that the answer?'
Patty: 'I never made the attempt to get up and leave.'
Armstrong: 'Did you ever demand to call a lawyer?'
Patty: 'Just the one time.'
Armstrong: 'The one where you said you want to maybe come back the next day with your lawyer or [therapist]?'
Patty: 'I didn't say maybe. I said I wanted to come back the next day with my lawyer or my psychologist.'
Armstrong: 'Now let's talk about this day when you're actually with the detectives. Did you ever demand to have an attorney present on that day?'
Short: 'Objection, asked and answered.'
Patty: 'No.'
Patty's ordeal at Brad Armstrong's hands continued through a third deposition, for a total of 19 hours. In all, more than a dozen people were deposed, including the police defendants. The deposition witnesses called by the defense gave testimony supporting Patty, and as such were treated hostilely by the Axley lawyers.
The cost of these depositions quickly ran into the thousands of dollars, which Patty, per her agreement with Short, paid out of her own pocket ' or rather with money from her two franchise businesses, a coffee shop and vending machine route, both run by a state program that employed the visually impaired.
Overall, Short was heartened by these depositions. In fact, he thought he had a strong case. Patty and her witnesses had stood up well to opposing counsel, collectively affirming that she was credible. The police, clearly, had conducted only a cursory investigation before using lies and psychological pressure to get Patty to recant. A jury might regard this as unfairly coercive, whether or not she demanded a lawyer or tried bolting for the door.
Getting to this point, however, came at a huge cost for Patty ' not just in terms of the emotional battering she endured but also in dollars and cents. Her quest for justice did not deplete her courage or resolve. But it left her flat-busted broke, and then some.
On the morning of April 28, 2000, two representatives of Wisconsin's Business Enterprise Program arrived without warning at Patty's coffee shop. They shut it down and confiscated her supplies. Patty had fallen too far behind in her payments. Devastated and ashamed, Patty left this message on her answering machine: 'I'm here. I have to take the day off. I can't talk to people today. Please don't call me.' Short stopped by Patty's place to make sure she was all right. He found her grieving the impact of these events on her assistant, who had been with her for 14 years. That was just like Patty, Short related, 'always concerned about somebody else.'
Hal Harlowe went to bat for Patty, arguing that Business Enterprise failed to follow its own procedures. Patty was able to arrange a repayment plan. But her coffee shop franchise was lost forever, and it would be five months before she was given a new vending machine route. In between, she got a part-time job at a neighborhood grocery store, and Short assumed the lawsuit's ongoing costs.
On May 9, Short filed his response to Axley's motion for summary judgment. He recounted Patty's assault and subsequent 'humiliating interrogation,' saying she was not allowed to leave the room or come back with an attorney. He disputed the defendants' immunity claims, saying 'no reasonable officer would have conducted such a slipshod investigation and coercive interrogation.' He said Woodmansee had disregarded his training regarding the proper investigation of sexual assault.
The two sides agreed on the case's major factual issues, including whether the police falsely arrested Patty and coerced her confession in violation of her constitutional rights. But no jury ever got to decide these issues.
On May 18, 2000, Judge Shabaz threw out the lawsuit 'with prejudice and costs.' He found that Woodmansee had probable cause to believe Patty had lied given 'the lack of physical evidence' and discrepancies in her account. The detective's alleged failure to contact potential witnesses or analyze evidence was immaterial since he had 'no duty to further investigate' once he came to believe that Patty had committed the crime of obstruction.
According to Shabaz, whether or not Patty requested an attorney was irrelevant since her statements on Oct. 2 were 'never used against her as evidence in a criminal trial.' Even if Patty's confession was coerced, 'her due process rights would not have been violated unless the confession was used against her at trial.'
In other words, Shabaz held that any police misconduct committed in securing Patty's confession was absolved when prosecutors dismissed charges after their case fell apart. Police could deny citizens the right to counsel or coerce them into confessing so long as the evidence obtained was not used at trial. This interpretation, if consistently applied, opened to acute vulnerability one particular class of criminal defendant ' the demonstrably innocent.
Shabaz, in reaching his decision, cited a 1992 federal appellate court case, Mahoney v. Kesery, which holds that even coerced statements do not violate the Constitution until they are introduced against a defendant in a criminal proceeding. An equally applicable 1994 case, Weaver v. Brenner, says 'use of the statement at trial is not required,' only that there be some 'use or derivative use of a compelled statement at any criminal proceeding against the declarant.' Arguably, charging a person with a crime counts as a criminal proceeding.
But Patty's opportunity to argue her case had come to an end. She was out of money, and thus, in terms of her ability to navigate the justice system, out of luck. Short conveyed to Modl that his client could not afford to pay the defense's legal costs, as Shabaz had ordered. The Axley attorney agreed to accept $1,500 ' on condition that Patty relinquish her right to appeal. Patty had to sign a document to this effect, and Short paid this amount.
The lawyers at Axley Brynelson billed the city's insurer $98,617 to defend against Patty's lawsuit, most of which went to pay their hourly fees. But picking this deep pocket was not a risk-free proposition.
For one thing, it generated reams of information that supported Patty's version of events. For another, although it continued to hire Axley lawyers for certain cases (Axley has gotten $315,287 in city business during the last five years), the city's insurer began referring most of its liability claims to another Madison law firm, which had argued that it could do the job for less. And this, from the point of view of the city and its insurer, was the only thing that mattered.
From Cry Rape: One Woman's Harrowing Quest for Justice, by Bill Lueders, University of Wisconsin Press, Copyright 2006, excerpted with permission.
