A False Report

by T. Christian Miller

  We met Mason at the Lynnwood police station in December of 2015; we interviewed him in the same room where he had interviewed Marie seven years before—across the same table Marie had pounded with her fist, insisting she had been raped. Mason traced his doubts back—the Project Ladder manager’s mention of Marie wanting a different apartment, the skepticism Peggy voiced the day after the rape. “Those were people who knew her a heck of a lot better than I did,” Mason said.

  Mason wasn’t disciplined over Marie’s case. In the years after, his police record would be commendable.

  “I think anybody that’s been in this job for any length of time—there’s a lot of stuff they see over their career that tends to have an effect on them. Harden a person or whatever,” Mason told us. He took from Marie’s case the need to be more open-minded, freer with the benefit of the doubt. “Nobody goes into law enforcement thinking they’re going to end up victimizing somebody further,” Mason said.

  We asked Mason about Peggy. “She was relaying information that she thought was important,” Mason said. She was being the good citizen she thought she was being. Mason was grateful she called. That he used what she said in the way that he did is on him: “I got it wrong.”

  We asked about Marie. We told Mason that she wonders about her role in all that happened, if there’s some misstep she could have avoided.

  “She didn’t misstep. It was—me. So that’s—just that,” Mason said.

  “It wasn’t her job to try to convince me. In hindsight, it was my job to get to the bottom of it—and I didn’t.”

  “When you look back on this, what haunts you most about this case?” we asked.

  “There’s several aspects”—he sighed—“that do, but probably the most is…what Marie had to endure by reporting this. Yeah…”

  “Do you think about her a lot?”

  For five seconds, ten, fifteen, Mason said nothing. He let the question sit, collecting himself. Half a minute passed before he spoke.

  “Can we…?”

  “Sure.”

  “I just need to grab some water.”

  He left the room.

  When Mason came back, he said: “Yeah, I do.” He thinks of Marie often. “It’s pretty random. Just at different times. Over the course of my day, visiting family out of state—it just depends.

  “When I think of Marie, it’s more of how she is doing now.

  “I hope that she’s okay.”

  —

  The court records for Marie’s false-reporting charge were expunged in the spring of 2011. The file was sealed, its traces eliminated. But Marie knew that erasing history wouldn’t prevent its repeating. So in June of 2013, she filed a civil rights lawsuit against Lynnwood in US District Court. “Maybe they could change the way they do things so another woman won’t get treated as I did,” she says.

  The defendants included the city; the two police detectives, Mason and Rittgarn; Cocoon House, a nonprofit that managed the Project Ladder program; and the Project Ladder managers, Jana and Wayne. The lawsuit alleged that the police interrogated Marie without reading her her rights; that the department failed to provide proper training for dealing with rape victims; and that Cocoon House acted in concert with police by not helping Marie get a lawyer. Defense lawyers responded that when the police drove Marie in for questioning, she wasn’t under arrest. Marie was free to leave, so the detectives were free to bypass the Miranda warning. Meanwhile, Cocoon House conceded that Jana and Wayne didn’t help Marie get an attorney. But they had no duty to, the lawyers said.

  One defense argument hovered above the rest. If it succeeded, just about every other argument fell away. Marie waited too long to sue, the defense lawyers contended. They said that the statute of limitations for a federal civil rights claim is three years—and that the clock started ticking for Marie in August of 2008, back when she was questioned and charged with false reporting. They moved to have her lawsuit tossed.

  To Marie, the argument was confounding. “You can’t file a lawsuit when they don’t believe you,” she says. Was she expected to sue before O’Leary’s arrest validated her basis for suing? Nonetheless, the motion to dismiss posed a challenge for her attorney, H. Richmond Fisher. He likened Marie’s situation to a patient who learns, years later, that doctors left a sponge behind during surgery. The law doesn’t punish that patient for the time between operation and discovery. Nor, he argued, should the law punish Marie for the time between her arrest and O’Leary’s.

  In December of 2013, Marie and Lynnwood agreed to mediation, in hopes of settling before trial. Both sides wrote the mediator beforehand. Fisher said Marie wanted $5 million. Lynnwood’s lawyers said she was unlikely to see an award “anywhere near the mid-six-figure range, let alone seven figures.” Two weeks before Christmas, the mediator called the two sides together, to hash this out in person. The police and Marie stayed in separate rooms while attorneys made their cases. Then Marie was summoned. Asked to tell her story to two higher-ups from Lynnwood’s police department, she described what she had been through. She invited them to imagine a daughter of theirs being treated the way she had been treated. The two apologized, acknowledged the department’s errors, and pledged to do better.

  Marie did not get $5 million. She settled with Lynnwood for $150,000. “A risk management decision was made,” one of Lynnwood’s lawyers told a newspaper reporter. Marie settled separately with Cocoon House, for an undisclosed amount.

  She never heard anything from Rittgarn, the detective who had threatened to book her into jail and had since moved to Southern California. But after Marie’s lawsuit was filed, a reporter for the Seattle Times reached Rittgarn by telephone. “Rittgarn…said he was unaware of the lawsuit,” the newspaper reported. “At first he could not recall the case, except that he thought it involved ‘that guy from Colorado.’ ”

  Although Lynnwood agreed to settle for $150,000, the city’s insurance picked up most of that, leaving Lynnwood to foot only its deductible.

  In the end, the city paid $25,000.

  —

  “We had a major failing,” Lynnwood police commander Steve Rider told us.

  “A drastic mistake,” he called it. “A reality check….Wrong turn…wrong assumptions…wrong calls.

  “Knowing that she went through that brutal attack—and then we told her she lied?”

  Facing fallout, many police departments resort to damage control: foul up, hole up. Get a big case wrong and they go full bunker, refusing to acknowledge, much less apologize. But the Lynnwood police proved an exception. In 2011, after Marc O’Leary’s arrest, the city’s police chief ordered two reviews—one internal, one external—to determine how Lynnwood’s investigation went sideways. The department chose to own its mistakes, and to learn from them.

  The internal review, seven pages long, was conducted by a Lynnwood police commander and a sergeant. Neither had worked the initial case. Their report used understated language—saying, for example, that the investigation reached an “incorrect resolution”—but their analysis was pointed enough. The detectives attached too much weight to small disparities in Marie’s statements and to Peggy’s doubts. Once doubt set in, they interrogated Marie instead of interviewing her. Once Marie confessed, “there was a self-imposed rush to file charges” and close the case. When Marie tried to take back her confession, Detective Rittgarn greeted her with threats.

  The external review covered much the same ground, but with language that blistered. This peer review was conducted by Snohomish County sheriff’s sergeant Gregg Rinta, who, unlike Mason, had substantial experience with rape cases. For five years he had supervised the sheriff’s Special Investigations Unit, which handled up to seven hundred cases a year involving adult sex crimes and child abuse.

  “In most respects, there simply was no investigation in this case,” Rinta wrote in his fourteen-page report. “For reasons that I cannot explain, [Marie’s credibility] became the focus of the investigation and all of the strong evidence
that pointed to a serious felony crime, was completely ignored.” Rinta recounted all the times the first day that Marie, on one hour’s sleep, described being raped. To have Mason then request a written account was unnecessary and even cruel: “What you are asking her to do is tell her story for the FIFTH time.” Multiple statements in hand, Mason elevated “minor inconsistencies”—common among traumatized victims—into major discrepancies. As for Peggy’s doubts, Mason had no business even mentioning them in a report. Someone’s opinion, with no supporting evidence, has “absolutely no relevance in an investigation,” Rinta wrote.

  In his review, Rinta makes clear how incredulous he is—at both the missteps and the mindset. He cannot fathom the detectives’ lack of regard for the trauma Marie reported. He cannot understand their lack of compassion. Referring to the day the detectives first confronted Marie and accused her of lying, Rinta wrote:

  The manner in which she was treated by Sgt. Mason and Det. Rittgarn can only [be] labeled as bullying and coercive. It is painful to read, and difficult to understand how this type of behavior on the part of experienced police officers can happen in a professional police department. If this hadn’t been documented in their reports, I would have been skeptical that this actually happened.

  The way they hounded Marie, it’s not surprising she confessed to lying, innocent though she was, Rinta wrote.

  And what happened four days later—when Rittgarn threatened to book Marie into jail and recommend that she lose her housing—was worse. “These statements are coercive, cruel, and unbelievably unprofessional. I can’t imagine ANY justification for making these statements.”

  Rinta recapped what happened afterward: the police escorting Marie down the stairs and handing her off to the two Project Ladder managers; the managers asking Marie, in the presence of the two officers, if she’d been raped; Marie saying no.

  “I can only presume that this was orchestrated for the purpose of putting pressure on the victim to tell the ‘truth,’ ” Rinta wrote.

  It “is painful to imagine how the victim felt.”

  At the Lynnwood Police Department, Marie’s case led to changes in practices and culture, Rider says. Detectives receive additional training about rape victims and trauma. They learn the protocols of the International Association of Chiefs of Police—the guidelines written by Joanne Archambault—to build trust with victims, to show respect and reserve judgment, to give victims a say over when and where they are interviewed. Rape victims get immediate assistance from advocates at a local healthcare center. Investigators must have “definitive proof” of lying before doubting a rape report. A charge of false reporting must now be reviewed with higher-ups. “We learned a great deal from this,” Rider says. “And we don’t want to see this happen to anybody ever again.”

  In 2008, Marie’s case was one of four labeled unfounded by the Lynnwood police, according to statistics reported to the FBI. In the five years from 2008 to 2012, the department determined that ten of forty-seven reported rapes were unfounded: 21.3 percent. That’s five times the national average of 4.3 percent for agencies covering similar-sized populations during that same period. Rider says his agency has become more cautious about labeling a case unfounded since Marie.

  “I would venture to say we investigate our cases a lot more vigorously than many departments do,” he says. “Now, we’re extra careful that we get the right closure on it.

  “Each one of us,” Rider says, “will remember this case forever.”

  —

  On a November day—a blizzard was forecast, but didn’t hit—we drove from Denver to Colorado’s upper-right corner, where Nebraska lies to the north and east. At the Sterling Correctional Facility, a prison that looks pretty much like any other—low and long, with concertina wire—we were led through three sets of sliding doors that locked behind us, down a long corridor and into the visiting room.

  Marc O’Leary wore green prison scrubs with a ball cap. Stubble lined his jaw. His face looked jowly compared to his intake photo. He blinked in spasms, as though his eyelids were hooked to a motor drive. His hands stayed mostly in his lap, his left thumb bouncing.

  “I do a lot of reading,” he told us of his days in prison. Philosophy, science, psychology, “or I’ll read metaphysical stuff like Taoism….Lately I’ve been doing meditation….I try not to let my thoughts carry me….I actually took up sewing.”

  His family visits maybe a couple of times a month. They didn’t know about him—not this part of him—until the day he spoke at sentencing. “I spent decades, a long time, learning how to hide this. So I was good at it.” We asked if he committed other crimes the police don’t know about. “Nothing more serious than breaking and entering,” he said. Ever had a formal psychological diagnosis? we asked. No, he told us. “The court assumes because I can speak coherently and I’m not writing crazy stuff in a notebook somewhere that I must be perfectly sane. But if running around breaking into homes and playing out rape theater is not mental illness, then I think the definition is completely lost.”

  O’Leary wonders if he could have been stopped, years ago, if there had been a program to intervene with young boys suffering deviant fantasies. “There’s no safe haven for a person that is on the edge or knows that they’re going down the wrong path to really go to and say, ‘Look, I need help.’ ” A program’s success would depend on counselors who understand the urge to rape—people like him, O’Leary said. “I don’t care if you had twenty PhDs on your wall or were an expert in criminology or psychology or whatever—there’s no way I would have opened up completely.” O’Leary told us he is “infinitely more qualified” to counsel potential rapists.

  One of the biggest questions that brought us here concerns Lynnwood. Back when he saw the news—that the police had closed their investigation, that they had concluded there had been no rape—how did he react? Was he dumbfounded?

  “I didn’t know until after I was arrested,” O’Leary said. “I was told by my public defender in Colorado.”

  After committing a rape he didn’t read or watch the news, or go online to track the investigation’s progress. He didn’t see the need. “I thought about it sometimes, but I just never followed up. I was—living two lives is a lot of work. I wasn’t sleeping. I was literally living two lives. And I was just not focused on that.

  “I just kind of assumed that police were looking.”

  —

  During our months of reporting, we spent many hours talking to rape experts—prosecutors, cops, researchers, advocates. To Joanne Archambault, the retired sergeant who has authored guidelines on investigating allegations of rape, Marie’s case shows how police skepticism can become a self-fulfilling prophecy. “Unfortunately, interrogating victims and challenging them about inconsistencies just shuts them down or causes them to recant, which reinforces law enforcement’s belief that so many of these cases are unfounded.”

  The Lynnwood detectives not only interrogated Marie, they used the Reid Technique, typically reserved for someone like a robbery suspect. They provoked. They deceived. They studied her physical reactions. Using this approach on Marie was “inappropriate,” Sergeant Rinta wrote in his peer review. He added: “Interpreting body language is an inexact science, and should not be used as a conclusive tool in determining the truth, unless one has expertise in this area. Mason and Rittgarn certainly did not.” The Reid Technique has come under scrutiny generally, as DNA testing has exposed scores of cases in which innocent people confessed to detectives. Wicklander-Zulawski & Associates, a police consulting firm, announced in 2017 that it would no longer teach the method because of the risk of false confessions. “This was a big move for us, but it’s a decision that’s been coming for quite some time,” the company’s president said. John Reid, the technique’s namesake, built his reputation in part on a 1955 Nebraska murder case in which he elicited a confession from a young forester named Darrel Parker. Twenty-three years later, a death row inmate named Wesley Peery admitted he was the
real killer. Parker was formally exonerated in 2012, the year after Marie’s record was expunged.

  Marie’s case is an object lesson in other ways, too. Archambault warns that a rape victim’s recall can be disorganized, inconsistent, or simply wrong. Marie described the rapist’s eyes as blue. O’Leary’s eyes are hazel. Marie described the rapist as five feet six to five feet nine. O’Leary is six feet two.

  Her case shows the risk of the abbreviated investigation and discarded rape kit. Once the police suspected Marie of lying, they stopped investigating. Once they concluded she was lying, they had her rape kit destroyed. Around the country, examples abound of similar neglect, only on a grander scale. In 2007, the year before Marie was raped, a task force comprising state and county investigators raided the Harvey, Illinois, police department and found two hundred unprocessed rape kits. Two years later, in Detroit, an assistant prosecutor discovered a cache of 11,341 untested rape kits in a warehouse, “furred with dust.” In 2015, a USA Today investigation tallied seventy thousand untested kits nationwide while noting that it was likely a fraction of the true total. The White House that year estimated the backlog at four hundred thousand.

  “That’s tragic. That’s really tragic,” says Susan Irion, a principal figure in the adoption of rape kits back in the late 1970s.

  But in some ways—culturally and politically—we’ve also seen a shift. When she was on the police force, Archambault saw how people avoided discussions of rape, how the public wanted police resources devoted to other kinds of crime. But in 2015 the US Department of Justice and the Manhattan district attorney’s office dedicated nearly $80 million to clearing the national rape-kit backlog. A key partner in that push was the Joyful Heart Foundation, a nonprofit founded by actress Mariska Hargitay from the popular television show Law & Order: Special Victims Unit. In 2016, at the Academy Awards ceremony, Vice President Joe Biden said “Let’s change the culture” while introducing Lady Gaga, who sang while surrounded by survivors of sexual assault. A few months later there was a public backlash when Brock Turner, a former Stanford University swimmer, received a sentence of only six months in jail for sexually assaulting an unconscious woman. More than a million people signed an online petition to remove the case’s judge from the bench.