Part 4: Incriminating evidence comes forth, and a witness is surprised on the stand

The evidence from David Brake’s black box is incriminating. Lori Fluegel knows it.

It wasn’t long ago that Jessica’s grandmother found the plastic case — part of an old cocktail mixing kit — locked and tucked in the back of a closet in her home where Brake allegedly raped Jessica when she was 9. She wrapped it in a white trash bag and called the police.

The prosecutor watches with satisfaction as her co-counsel stands in front of the jury, slips on rubber gloves and pulls the items, one at a time, from a brown evidence bag and displays it for the jurors.

Three metal drink cups.

Drink strainer.

Bottle opener.

One T-shirt.

One bra.

Naked Barbie dolls.

Three pairs of a girl’s underwear, stained and, as crime lab experts would show, containing Jessica’s and Brake’s DNA.

Over the next two days in late May, Fluegel tries to hem Brake in. She calls 11 prosecution witnesses as the defense, in cross-examination, sows the seeds of reasonable doubt.

“The state calls Kendra Montgomery,” Fluegel says. The foster mother recounts how Jessica revealed the rape.

“ ‘He hurt me,’ ” Montgomery remembers Jessica saying.

For nearly six months, Jessica had been living with Montgomery, seeing a therapist, and struggling with deep behavioral problems.

On April 1, 2006, Montgomery was admonishing Jessica, she says, when the girl burst into tears.

“Who hurt you?” Montgomery remembers asking the girl. “Then she started talking about her dad and how he had molested and raped her.”

Jessica said her mom fondled her, too.

Fluegel homes in.

Anyone else?

“David Brake.”

•••

In cross-examination, defense attorney Curt Winegarner lasers in on the chaos of Jessica’s life, how she’d hoped to be adopted by Montgomery and how the possibility of returning to her neglectful alcoholic mother or father petrified her.

“She told you she was afraid of her mother?” Winegarner asks.

“Yes,” Montgomery says.

“Afraid of her father?”

“Yes.”

“In this conversation, you asked her if anyone else hurt her?”

“Yes.”

Then Winegarner makes a turn.

“She said two men?”

“Yes.”

“In fact, when this came up, she said she did not know the names of those two men, is that true?”

“I don’t remember that at all,” Montgomery says, taken aback.

But Winegarner now shows Montgomery a copy of her earlier deposition. It shows that Montgomery did say that Jessica, at first, did not know the names of the two men in her room when she was raped.

“The more she talked … the more details she remembered,” Montgomery protests.

“And the details changed,” Winegarner says. A statement, as much as a question.

“Some did.”

•••

Fluegel now calls Detective David Albers, a 10-year police veteran. Fluegel arranges an easel by the juror’s box. She props up an enlargement of a police document — a four-page question and answer “formal statement” — and faces it toward the jury. Albers testifies to its veracity. It reads:

Statement of David A. Brake, Taken 1125 Locust, Kansas City, Missouri Police Dept. By Det. Dave Albers on this 20th Day of July 2006 at 23:59 hours.

It is, in effect, a signed confession taken on the night of Brake’s arrest. A rarity in child sex crimes.

Q. Did you have sexual intercourse with Jessica…?

A. Yes.

Q. Did you have a friend visiting you at the time?

A. Yeah.

Q. Who was the friend?

A. Robert.

Q. Does Robert have a nickname?

A. Ratboy.

Q. If you could talk to Jessica right now what would you tell her?

A. I’m sorry. I wish I could take it back, and I hope she forgives me.

Fluegel takes her seat. The document seems damning, but she’s unsure. She’s had cases where juries have completely disregarded confessions because the defendant said it wasn’t real or they didn’t trust the police.

Defense co-counsel Matt Johnson now argues that exact point: the confession was coerced.

David Brake’s interrogation went on for nearly three hours, Johnson says. He faces the detective. Why is there no videotape of it?

The Police Department’s juvenile division doesn’t videotape its confessions, Albers says.

In her chair, Fluegel wants to roll her eyes in exasperation. Because it’s true and, for years, she’s found the police practice beyond frustrating. Other police departments in Jackson County videotape all confessions. But Kansas City police don’t. Nearly every time a Kansas City confession comes up from the juvenile division in a child sex crime, she faces this battle.

If it’s so important, Johnson says, where’s the videotape? Where, too, are the detective’s written notes of this nearly three-hour conversation?

Albers answers again: He threw them away.

“So there is no record of this conversation other than your summary of it, yes?”

“Yes,” Albers says.

Johnson presses:

Isn’t it true that David Brake initially denied this crime time and again? Isn’t it true you said you didn’t believe him? Didn’t you say that it would be easier for him if he confessed? Isn’t it true the police are allowed to mislead to obtain a confession?

“Sometimes it can be outright lying to them, right?” Johnson says.

“Yes,” Albers says.

•••

The next day, Fluegel presents the rest of her case.

•A DNA expert confirms the presence of Jessica’s and Brake’s genetic material on underwear from the black box. The defense raises the possibility that it could have gotten there by masturbation rather than rape.

•Jessica’s therapist explains how it is common for children to wait weeks, months or even years before they disclose their sexual abuse, waiting to be in a safe place as Jessica did at Kendra Montgomery’s.

“Would you agree that a child who has lived a chaotic life could be confused about who the perpetrator might be?” the defense asks.

The therapist says no, but Winegarner reminds her how, in an earlier deposition, she said it was possible.

Soon after the next witness takes the stand, Fluegel punches a button on a videotape player. An image flashes on an old television. It’s Jessica again; this time she’s 10.

On the tape, the girl sits in a spare room talking to Kim Curtis of the Child Protection Center. Curtis, also on the witness stand, is a forensic interviewer, trained to draw out children’s stories of possible abuse.

It is April 19, 2006, only weeks after Jessica disclosed the rape to Kendra Montgomery. Jessica looks almost unchanged from the way she did a few days ago in court: She is tinier, meeker, but with the same blond hair and distant voice.

On the tape, for 35 minutes, Jessica is calm. She talks about the alleged sexual abuse by her father in the matter-of-fact way a child might talk about her day at school.

“After he was done,” Jessica says. “He said, ‘Never tell anybody or I’ll kill you…’ ”

Curtis soon asks if anyone else ever did anything similar to her at any time.

“Mom,” Jessica says. “And Dave.”

“Tell me what Dave’s last name is again?” Curtis asks.

“Brake,” Jessica says.

In detail, graphic and with no emotion, Jessica recounts the rape. She also tells how Brake was helped by another man who held her arms. She’s not sure of his name, she says, but he had brown hair, a pierced tongue and a tattoo. She touches her right shoulder to show where.

Minutes later, Fluegel rests the prosecution’s case.

•••

The defense calls its own witnesses. There are two.

Brake is not among them. Fluegel is surprised. Juries usually like to hear from the defendant.

Of those called, one is a police records custodian who says no Kansas City officer ever responded to a report of rape at the grandmother’s house, as Jessica had testified.

Winegarner asks the other to state his name.

“Robert Striebel,” the witness says.

Ratboy.

Fluegel is fascinated to see him. At 29, he is slight and narrow shouldered, just over 5½ feet tall with the pinched features of his nickname and wispy facial hair. He wears a tight brown suit and carries a cowboy hat that looks too large for his head.

He sits upright, shoulders back, hat in his hand, dignified, like a man posing for a picture in the 1800s.

In due course, he testifies that, although he’s known David Brake for 19 years, he met Jessica only twice. He was never alone with her. He was never alone with her and just David. He barely knows the girl.

“Has everything you told us been the truth?” Winegarner asks.

“Yes,” Striebel says.

Fluegel can’t resist. Voice strident, arms crossed, she paces in front of him. Isn’t it odd, she asks, that Striebel should be David Brake’s best friend for 19 years and yet have met Jessica only twice? Still, she and all the kids knew him enough to call him Ratboy?

They must have heard the name from Dave or Jessica’s mom, Striebel responds.

Fluegel nods. She fires, her voice even, but cold.

“Are you aware that the defendant, David Brake, confessed in this case?

“Yes,” Striebel says.

“Are you aware that he placed you there at the time?”

“No,” Striebel says, still unfazed. “I’m not.”

“You’re not aware that he said that you were there on that night when he raped Jessica?”

“No,” Striebel says

“He didn’t tell you that, did he?”

“No.”

“Mr. Striebel, do you have any piercings?”

“I have one in my ear and one in my tongue,” he says.

She stares at him.

“Do you have any tattoos?”

“On my right shoulder,” he says. He touches his arm just as Jessica did in the videotape.

•••

Fluegel would have to wait until the Tuesday after Memorial Day to deliver her closing argument and to hear the jury’s verdict. Tuesday would be her 43rd birthday. She hates being in trial on her birthday.

All weekend, she works to polish what she is going to say to the jury. She delivers it to Lily, her dog, as they walk in front of her house. She lives in a late 1800s Victorian, in what Fluegel likes to call “the hood” in northeast Kansas City. Friends are constantly telling her that she needs to give up on it and move on to someplace easier and “better.” They don’t get what she sees in it. Some say the same about her job.

As the weekend wraps up, Fluegel also thinks about Jessica and how she’ll break the news if the verdict comes back as not guilty.

The youngest victims of child sex abuse — ages 4 or 5, even younger — rarely seem as concerned about the guilty-or-not-guilty outcome of a trial, Fluegel has found. They just seem to want to move on with their lives.

But not-guilty verdicts can hit teenagers hard. Because they know that when 12 people rule not guilty, it means 12 people didn’t believe them. First they get abused and then they go to trial and people think they’re liars.

Before the trial ever began, Fluegel told Jessica, as she tells every child: “No matter what 12 people say, I believe you.”

She told Jessica the coming forward takes profound courage.

“Just because you get a not-guilty verdict, doesn’t mean this didn’t happen.”

•••

On Tuesday afternoon, the jurors file into the courtroom.

“Have you reached a verdict?” Judge Kelly Moorhouse asks.

It took 2½ hours of deliberation. The clerk reads the jury’s verdict. Winegarner asks for every member of the jury to be polled.

•••

Days later, Fluegel and Jessica’s “victim advocate,” Elizabeth Parker, drive to Jessica’s group home. She’s excited and greets the women with smiles. They sit next to Jessica on a plaid loveseat.

In her darker moments, Fluegel sometimes wonders if her job makes any real or lasting difference to the lives of sexually abused children. It’s not as if she can cure the horrors of their pasts or fix their futures.

“You were brave,” she tells Jessica.

On her better days, Fluegel is willing to believe her friends who work with sexually abused children. The verdicts matter. And it’s comforting to the children just to know that someone is fighting for them.

“The people you told,” she tells Jessica, “found him guilty.”

“Does this mean he’s going to stay in jail?” she asks.

Formal sentencing is still weeks away. Fluegel doesn’t know.

For a while, she and Jessica chat about summer. Fluegel notices how Jessica’s fingers seem to have grown even longer, stretching beyond her own. They hold their hands up to each other and compare.

“Will you come back and see me again?” Jessica asks.

•••

It’s the day of sentencing, July 10. “The only appropriate sentence is 25 years,” Fluegel argues before Judge Moorhouse.

In moments, Moorhouse will decide and declare David Brake’s sentence.

Brake sits at the lawyers’ table in a convict’s orange jumpsuit, his hands and feet manacled.

On June 30, Fluegel got a copy of the Missouri Sentencing Advisory Commission’s recommendation on Brake: 10 years as a general sentence, 15 if there were “aggravating” factors.

Fluegel thinks that’s woefully light. The sentence for statutory rape in Missouri involving kids 12 and under is 10 years to life.

Brake “destroyed her life,” she tells the judge. “Jessica … was given a life sentence of incredible hurdles.”

But judges usually require compelling reasons to veer beyond the commission’s recommendation. In Missouri, “aggravating factors” include the use of a deadly weapon, a prior felony record, the risk of death or proof that the offender caused “severe physical or emotional trauma to the victim” or committed the crime in an “especially heinous, atrocious or cruel manner.”

In Kansas the age and vulnerability of a child are also aggravating factors. But not in Missouri.

In court, Fluegel now finds herself arguing that Brake did cause “emotional trauma.” He did act in a “heinous, atrocious and cruel” manner.

“Here’s a child who stands alone and will probably always stand alone,” Fluegel argues.

For the defense, Winegarner argues that although Jessica suffered, Brake did not cause it all. Winegarner reminds the court of alleged repeated rapes at the hands of Jessica’s father.

Brake, moreover, has no prior convictions. He has, over the last two years, been a model prisoner. Prison psychological tests show he is at low risk to repeat the crime.

Winegarner argues that he should be released into the community on a plan under which he would live with his mother or brother.

Judge Moorhouse calls David Brake and the lawyers forward. She does not buy the defense’s argument. The crime was too disturbing, she says.

“It’s the court’s judgment,” Moorhouse declares, “that you be sentenced to 13 years.”

Fluegel turns dejected from the bench. She’s tired. Her face sags in disappointment. It is a victory, but it isn’t.

Brake has already served two of his 13 years. He is required to serve 85 percent of his sentence before he’s eligible for release. He’ll probably be out in a little more than nine years.

“I’m glad I’m going on vacation,” Fluegel says.

Tonight, before she heads home, she makes one more stop. To see Jessica.

But not to talk about the sentence.

Instead, she carries a present: a small purple box tucked in a pink bag. Inside is a handmade silver chain. Fluegel had promised she’d visit again.

Someone needs to. Especially today. It’s Jessica’s 13th birthday.

To reach Eric Adler, call 816-234-4431 or send e-mail to eadler@kcstar.com