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DOJ-Solomon/Berg letter

DOJ-Solomon/Berg letter

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Published by The Badger Herald

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Published by: The Badger Herald on Oct 24, 2011
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05/19/2012

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DANE COUNTYDISTRICT ATTORNEY
ISMAEL R. OZANNE
September 27, 2011Dorinda Freymiller, Special AgentDivision of Criminal Investigation, Public Integrity Unit17 W. Main St.PO Box 7857Madison, WI 53707-7857RE: Case Review and Charging Decision – Brian Solomon InvestigationDear Agent Freymiller:Thank you for your extremely thorough investigation of this sexual assault casearising from an incident in the early morning hours of April 14, 2010 at theresidence of Elena Berg. I have had an opportunity to carefully review the reportsand discuss the charging decision issues with other experienced sexual assaultprosecutors. Ultimately, we are denying prosecution of Brian Solomon.I write to document the reasons behind this “close call” decision. Let me start outby stating that I absolutely believe Ms. Berg’s account of what occurred when sheawoke in her bed the morning of April 14, 2010. We are not declining prosecutionbecause we think that Ms. Berg consented to this sexual intrusion and has nowclaimed otherwise. Quite the contrary; there is no doubt in my mind that Ms. Bergdid
not 
consent to the defendant’s digital penetration. The issues arise in thecontext of whether 12 jurors would unanimously agree, beyond a reasonabledoubt, that she did not consent.My experience prosecuting these cases informs my decision. At trial, defendantspitch to juries their list of evidence or “reasonable hypothesis” which they argue areconsistent with their innocence in the context of consent. An attorney in this casewould argue the fact that Ms. Berg was highly intoxicated and engaged in socialdrinking activities with Solomon the night before and leading up to the assault.They would argue that Ms. Berg accepted a ride back to her house from Solomon,even though another coworker offered to provide a ride. They would argue thatMs. Berg invited Solomon to spend the night. They would argue the fact thatconsensual kissing occurred on the walk back to the car, as well as on her bedonce they were inside. They will point out the previous “consensual” back rub andthe fact that Ms. Berg remembers nothing after the kissing on her bed, until sheawoke to find the assault underway. They will argue the fact that personnel at theCity/County Building witnessed the two together in the early morning hours of April14, 2010 and that while Ms. Berg was “tipsy,” she was not incapacitated and thetwo appeared equally affectionate with one another. And, while it is not a legal
Dane County Courthouse 215 S. Hamilton St. #3000 Madison WI 53703-3297Ph (608) 266-4211 Fax (608) 267-2545http://countyofdane.com/daoffice/dahome.htm
 
requirement that sexual assault victim’s resist their attackers or specifically shoutout the word “no” before a crime occurs, Ms. Berg’s acknowledged lack of anyresponse to Solomon when she awoke to his conduct is a case weakness.Additionally, the statement Ms. Berg provided on October 5, 2010 and thestatement she provided on November 9, 2010, reveal inconsistencies or somedegree of recovered memory, which an attorney would cite as evidence of fabrication, (e.g., stating first that he had never been to her residence before April14, 2010 and later acknowledging that he had). Furthermore, Ms. Berg’sacknowledged emotional difficulties from her past trauma would surely be thesubject of discovery motions, thus subjecting her to an invasion of privacy aboveand beyond the routine rigors of these sensitive crimes prosecutions. One of our considerations and concerns is re-traumatizing sexual assault victims based uponwhat we know will occur in the trial process.Mr. Solomon knows and the reports confirm, that Ms. Berg suffered from specificpsychological issues, which would become the subject of defense motions for an
in camera
inspection. If a judge granted such a motion, Ms. Berg would berequired to consent to the disclosure of her otherwise confidential counselingrecords. In this case, a judge would have a solid basis for such an order. If thecourt found the records relevant to the defense, Ms. Berg would be required again,to consent to having her records disclosed to the defense for use at trial. Whilethis issue is certainly not alone a reason to deny prosecution, it does weigh in our determination of guilt beyond a reasonable doubt. The common battle cry of defendants who claim consent under these circumstances is “buyer’s remorse” onthe part of the victim. In other words, the victim consented and later wished shehadn’t. Again, while this does not approximate the truth in the present case, theargument is made and perhaps reinforced by the psychological records issue.Another occurring claim is that the victim suffers PTSD and has a compromisedability to recall the consent based upon the prior traumatic assaultive history.Quite frankly, Mr. Solomon’s statement to you is telling and, in my opinion helpfulto any prosecution regarding the digital penetration on the morning of April 14,2010. Ms. Berg states that she went to sleep fully clothed and likely quiteintoxicated. While they had kissed, she and Solomon had never had anyconsensual sexually intimate encounter before. Two hours later, at about 5:00a.m. on a work day, after a serious night of drinking, she describes waking up tohim digitally penetrating her using two to three fingers. She described that it “reallyhurt.” By contrast, Solomon describes his digital workmanship as producing notone, but two orgasms, in a woman who suffers from sexual trauma on the morningafter an excessive atypical drinking binge. He further, incredibly, claims that Ms.Berg
thanked him
for respecting her boundaries. This is precisely the type of offender mentality that stretches credibility to its limits. If this were true, why would

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