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