A False Report

by T. Christian Miller

  It was as though Marie had gone back in time, bouncing from foster home to foster home. She was unsettled as ever. She still didn’t have her driver’s license. Her employment prospects remained limited, as she drifted from one retail job to another. Her life was on loop.

  Days after she moved in with her latest family, Marie saw she had a phone message from the Lynnwood police. They said they were looking for her, that they needed to talk. They didn’t say why.

  Marie flashed back to the call from Sergeant Mason, three days after she had been raped, saying he needed to talk to her. She had the same question now: Am I in trouble?

  Maybe I missed some court date, she thought. Whatever it was, Marie didn’t want the police feeling agitated at having to hunt her down. She could just see them charging through her door with an arrest warrant. So she called them back and provided her new address.

  On March 18, they arrived—two years, seven months, and one week after Marie had been raped. There were three of them: Commander Rider, Sergeant Cohnheim, and a woman who worked as a domestic-violence coordinator, Lynnwood’s closest equivalent to a victim’s advocate.

  They asked if there was a quiet place to talk. Marie walked them to her room and shut the door.

  Rider had prepared for this moment. But when the moment came, he didn’t know what to say. How do you say: Now, we believe you. Now, we hope you can trust us and work with us and help us bring to justice the man who raped you. Now we want to treat you as a victim to be helped instead of as a liar. He knew that whatever healing Marie had done, “we were just about to rip that wide open.”

  Asked years later for the words he used, Rider couldn’t remember. But he remembered the look on Marie’s face. “Stunned,” he says. When his words to her registered, she wept, experiencing, all at once, shock, relief, and anger.

  They told Marie her record would be erased.

  They handed her a check for $500, a refund of her court costs.

  They handed her an envelope with information about counseling for rape victims.

  The last time Cohnheim had seen Marie was when she had tried to take back her confession to lying. He had watched as Detective Rittgarn threatened her with jail if she failed a polygraph. Seeing Marie again, Cohnheim understood she had been “victimized twice”—first by a rapist, then by his police department.

  How can we ever make her whole? he wondered.

  He didn’t think it was possible.

  —

  I have something to tell you, Marie said on the phone.

  The police just came by, Marie told Shannon. They said the man who raped me has been arrested in Colorado. Now—they believe me.

  For Shannon, there could be no simple reaction to this news, no single emotion. Relief, grief, and guilt—all washed over her. O’Leary’s arrest meant Marie had been vindicated. It meant Marie had been raped. It meant Marie had been abandoned—“at the most desperate time of her life,” Shannon says.

  “It’s very complicated,” Shannon says. “Knowing they caught him and at the same moment knowing it actually happened. That she was raped and nobody believed her, especially the people in her life that had been supporting her, taking care of her, and trying to mend her, help her. And we didn’t believe her. It was horrible.”

  Shannon asked Marie if they could meet. What Shannon had to say, she wanted to say in person.

  As they’d done so often together, the two went for a walk in the woods. About a hundred feet down the trail, they stopped. “I was ready to apologize,” Shannon says. Shannon told Marie how sorry she was that she hadn’t believed her. She apologized for telling Marie she could no longer spend the night. She said she would understand if Marie never forgave her and never talked to her again.

  Marie gave Shannon a hug. She told her it was okay, that she forgave her.

  There was no “I told you so,” no “Why didn’t you believe me?” Marie’s absolution was immediate and unconditional. “I was just so shocked that she was willing to forgive me for that,” Shannon says. “Because it was such a huge thing. It went on for so long.”

  “I’m a forgiving person,” Marie says. “I was born with that, or something. It might take a while to forgive or trust, but I do forgive.”

  —

  Marie called Wayne, her former case manager at Project Ladder.

  I knew you weren’t lying, Wayne told Marie.

  Wayne’s words landed with a jolt. Marie didn’t know what to say. She had a rush of thoughts—Then why didn’t you say something? Why didn’t you stick up for me? You were my case manager—but left them unspoken.

  For Wayne, perhaps it was easier to remember it this way, or to say as much. But his words were belied by what he had written before: His case note, typed one week after the attack, said he didn’t believe that Marie had been raped.

  —

  Marie called Jordan.

  Jordan told Marie how sorry he was that all of this had happened to her.

  Talking to Jordan, Marie had never wavered, never taken back her account of being raped. And Jordan had never wavered in believing her. Yes, he had considered the possibility she was lying. But he had just as quickly dismissed it. She wasn’t that kind of person. Sometimes you just know. “And on top of that, I knew who she was before and I knew who she became after. And they weren’t the same, because she was hurt.”

  But in addition to threatening Marie’s freedom, the police had damaged her friendships. They left her believing that Jordan had distrusted her. Jordan told her that wasn’t so. Still, she had wondered, nursing doubts about all that had been said outside of her hearing. In the years after, Marie and Jordan had drifted apart.

  Marie hadn’t read the police’s reports, so she didn’t know that they made no mention of Jordan doubting her story. Jordan had told Marie the truth: He had not branded her a liar.

  —

  Marie called Peggy.

  “She said she was sorry,” Marie says. “She didn’t seem like she was in that much of a shock when I said it—like when someone shrugs their shoulders or something.”

  The muted response disappointed Marie. Marie wanted something more from Peggy, but Peggy—initially, at least—was unable to give it. She didn’t want to reflect on her role, knowing where her thoughts would lead. Marie’s settlement with Shannon had been clean: Both Shannon’s apology and Marie’s forgiveness were unreserved. With Peggy, the reckoning would be complicated. Years later Peggy would not remember for sure how she learned of O’Leary’s arrest. Maybe Shannon told her, even before Marie called. Or maybe it was Peggy’s mom who broke the news. Peggy does remember her mom cutting out an article about O’Leary’s capture and giving it to her. “There was still so much guilt attached to it that I sort of put it over here and said, okay, yes, this really did happen. But it’s still really painful to acknowledge it.

  “I think there was a lot of denial on my part,” Peggy says. “It was just so painful. I…I knew when I heard all the evidence that it was true. But it was still just horrifying that it really did happen. And that I was involved in not believing her.”

  In time, Peggy would look back with deep regret on the call she had made, telling the police she doubted Marie’s story. “I feel that if I would have shut my mouth, they would have done their job instead of relying on what was just my attempt to be very honest with them,” she says.

  “I was trying to be a good citizen, actually. You know? I didn’t want them to waste their resources on something that might be this personal drama going on.

  “I should have known better. You should always believe the victim until proved otherwise. That was a mistake I made. I did make that mistake. And I’m very sorry for it.”

  Peggy would reach out to Marie—and offer something more than she had in that first phone call, something akin to Shannon’s walk in the woods. “Eventually we did have a sit-down dinner and I took her out and I apologized to her for not believing her. We tried to have a heart-to-heart about it. And I know that it
took her still a little bit longer to forgive me. We have a decent relationship now, but it took a long time.”

  —

  Marie told the Lynnwood police she wanted an apology—not from the department itself, and not from some higher-up speaking on the department’s behalf.

  She wanted an apology from the detectives who hadn’t believed her.

  On the appointed day, Marie went into a conference room at the Lynnwood police station and waited. From Rittgarn, she would receive no apology. He was now in Southern California, working as a private investigator. His LinkedIn profile said he did surveillance for divorce and workers’ compensation cases. He also did contract work for the federal government, conducting background employment investigations, according to his profile.

  Mason, though, was still there. He came into the conference room, looking “like a lost little puppy,” Marie says. “He was rubbing his head and literally looked like he was ashamed about what they had done.” He told Marie he was sorry—“deeply sorry,” Marie says. To Marie, he seemed sincere.

  His apology helped—“a little bit,” she says. “You can’t go back two and a half years and fix all I had to go through. An apology doesn’t really fix that.”

  Marie could have used this meeting to delve into the reasons Mason hadn’t believed her. But she couldn’t bring herself to ask—because, she says, “I don’t know if I’d want the answer.”

  15

  327½

  March–December, 2011

  * * *

  Golden, Colorado

  Bob Weiner’s phone buzzed at seven o’clock one March morning. He was standing on the side of a soccer field in a suburb west of Denver, watching his daughter squeeze in a scrimmage before school. Detective Stacy Galbraith was calling.

  “Oh my God, you don’t know what we just found,” she began. They had discovered another victim of O’Leary’s predations. She described how Evans had found the photos of Marie in Washington, bound, gagged, and terrified.

  “You will never believe this,” she finished. “She was prosecuted for false reporting.”

  “You’re kidding me,” Weiner said.

  It was the latest twist in a case that Weiner considered one of the most horrific in his fifteen-year career at the Jefferson County district attorney’s office. Weiner was one of the most senior prosecutors in the office, which covered two counties west of Denver. Prosecutors and cops don’t always get along—to cops, prosecutors can be too picky; to prosecutors, the cops can play fast with the rules. None of that had happened in this case. Galbraith and Weiner had been in contact almost since the beginning. They had talked frequently during the six-week hunt, consulting each other over search warrants and the timing of O’Leary’s arrest.

  With O’Leary locked up, Weiner had turned his attention to building his case. Galbraith and Hendershot had done what Weiner called a “fantastic, unbelievable investigation.” But O’Leary was facing life in prison. With the stakes so high, it seemed unlikely he would take a plea. The state’s case had to withstand every attack the defense could mount and convince a jury to convict. As Weiner reviewed the facts, he saw holes. “It wasn’t ready for trial,” he said.

  At first, he worried about the physical similarities between Marc and Michael. Any good defense attorney would try to raise reasonable doubt by arguing that Michael O’Leary had been the actual rapist. Perhaps Michael had carried out the attacks, while his doppelgänger brother ran his pornographic website empire? “We need to alibi the brother,” he told Galbraith and Hendershot. He had Galbraith pull every time card from the furniture store where Michael O’Leary worked as a delivery truck driver, all the way back to August 2008. No luck. Michael hadn’t been on the job when most of the incidents took place.

  Hendershot and Ellis pitched in to help Weiner, launching what they called “Project Mazda.” Hendershot pulled up every registration in Colorado of a 1993 white Mazda pickup. There were seventy-seven. She gathered ten patrol officers from Westminster and began sending them all over the state to take pictures of the trucks. The strategy was simple: If the defense tried to argue that the white Mazda on the videotape from Amber’s attack was different from O’Leary’s, Weiner would pull up pictures of every Mazda in Colorado. Only O’Leary’s truck would match.

  But the discovery of the pictures in the memory cards from O’Leary’s cameras—of Amber, of Sarah, and now of Marie—brought the officers’ travels to a halt. Weiner would view the images in his office, his screen turned away from his door to prevent passersby from seeing them. Although the photos did not show O’Leary’s face, they did show his birthmark. Weiner even had a crime scene technician do a comparison of the moles on O’Leary’s body with the ones visible on the body of the rapist. The mole map, with lines and arrows connecting similar marks, showed that Marc and the attacker were the same. Weiner knew he had O’Leary. There was no need to worry about mistaken identity. “Once we found the photographs it was like, ‘Okay.’ ”

  Weiner had one more concern about the images. He asked Galbraith and Hendershot to check O’Leary’s porn sites, to see whether he had posted any of the photos. One morning, the two women met at the FBI’s regional headquarters in Stapleton, a neighborhood built on the site of Denver’s old airport. In a long, low room filled with computers, they sat down back to back, each facing a terminal screen. They began to search every website that O’Leary owned, or even that he linked to.

  “We looked at porn all day,” Galbraith says.

  “All day. All day,” Hendershot adds. “We literally looked at, honest to God, porn all day long.”

  “Gross stuff,” Galbraith says.

  In the end, they did not find any images of the victims. They couldn’t rule out that the photos might be posted in some dark corner of the Internet. But at least they could tell the women that they had found no evidence that O’Leary carried out his threats. It brought a measure of peace of mind to the victims—and to Weiner.

  The son of an FBI agent, Weiner had been involved in some of the biggest rape and murder cases in the region. In the courtroom, he cut a striking figure, seeming to vibrate with intensity. He was tall, thin, with a high forehead and the ropy build of a long-distance runner—which is exactly what he was. Weiner ran marathons. For practice, he’d jog through the high mountains that surrounded his home in a Denver suburb perched in the Rockies some 7,000 feet above sea level. At forty-two, he’d finished the Boston Marathon at 2:31:20, second in his age division. He was so good that he was sponsored by a running shoe manufacturer.

  Running gave him clarity. It helped free his mind from the haunting images of the victims, and allowed him to focus on the mechanics of the case. And there was much to think about—even with the pictures in hand.

  Weiner worried, for instance, about the amount of time that passed during each rape. Each woman had endured three or four hours of abuse. “The typical juror is going to sit there and think, ‘Well, she didn’t yell. Why didn’t you scream? Why didn’t you fight? You could have easily gotten away.’ ” And he worried that O’Leary had such detailed knowledge of each victim. The jurors might wonder: Did she know this guy?

  Those kinds of concerns hinder many rape investigations. Researchers call it “downstreaming”—the tendency of each person in the investigative chain to think about how the rape accusation will look to the next person to examine it. It begins with the victim—her fears about whether she might be judged by the cops about the length of her dress, or the number of tequila shots she drank. It next infects the police, who wonder what the prosecutor will think of a case with no physical evidence, only one person’s word against another’s. And finally it extends to the prosecutor, who must ponder how a juror will perceive a woman’s testimony. Doubt afflicted every stage of a rape prosecution.

  Weiner believed he could prove the facts of the case—he had actual pictures of the rapist committing the crime, after all. But the skepticism attached to rape victims made a trial no easy thing. He was p
articularly concerned about the women O’Leary had attacked, who would have to serve as witnesses. How would they hold up? They would face hostile questioning. They would endure having painful, intimate details of the attacks splayed before a courtroom of strangers and written up in the press. They would take the witness stand with O’Leary sitting only a few feet away. In the end, would they agree to testify?

  The trial was set for October 2011. Weiner knew he had to prepare. After all, he was not only battling O’Leary’s defense. He was also up against hundreds of years of legal history.

  —

  Marie’s case concerned one police department, which bungled one investigation, which led one court to hold her a liar. But her experience was no aberration. When it comes to reports of rape, the criminal justice system has long embraced the “cherished male assumption that female persons tend to lie,” as Susan Brownmiller once wrote. In courtrooms throughout America, the historical default setting has been doubt.

  The jurist with the greatest impact on our legal system’s response to rape allegations lived four centuries ago. Sir Matthew Hale, a contemporary of Oliver Cromwell and Charles II, became Lord Chief Justice of England in 1671. He was “by far the most renowned and respected judge of the time,” one account says. In legal circles, his name became venerated. A biographer wrote in 1835: “So resplendent, in short, were his excellencies, that, to this day, if an instance of singular virtue and uprightness, especially in the legal profession, is to be adduced, the mind turns as instantly to Lord Hale, as the needle to the pole.” Language equally fulsome can be found in accounts written since.