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Wednesday, Oct. 12, 2005 02:58 pm

Victim of the state

Lisa Weisser was raped at McFarland in 1994.

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To press a claim against the state, Lisa Weisser first had to obtain a judgment against her rapist. Now the state of Illinois is fighting her in the Court of Claims.
Patricia Schnoor remembers every detail. How could she forget? “My best friend says it was a brush with the devil.”
It was April 29, 2004. Schnoor, who works at the Illinois Department of Commerce and Economic Opportunity and was attending classes at the University of Illinois, stayed late at the office to finish a school project, the last one she needed to earn her MBA. Usually, she moved her car closer to her office at 5 p.m. when she worked late, but not this time. “I ended up staying later than I thought I would,” she remembers. “It was still kind of light out.”
Schnoor grabbed her schoolbooks and umbrella and went out the door, just another state worker in heels and a dress suit headed for home. She was soaring as she walked to her car. Not only was she about to earn her graduate degree after more than three years of study, she and her husband were also due to close a deal to buy their dream home the next day. As she walked down Seventh Street, she noticed a man sitting on a bench. “He was kind of slumped over — I didn’t recognize him from the usual bunch that was around there. I’d taken my classes: Walk assertively, don’t make eye contact, don’t give them a reason to approach. I didn’t acknowledge him at all. “Then I heard him say, ‘Hey, do you want to get raped?’ ”
He started following her. “He kept repeating himself: ‘Hey, baby, do you want to get raped?’ ” Schnoor recalls. “He was three feet behind me.”
She wasn’t sure she could make it to her car. Lincoln Library was closer, but she didn’t know whether it was open. She dreaded what might happen if she found the door locked. Maybe he would go away if he saw her call someone on her cell phone, so she dialed her husband. “But he kept bothering me,” Schnoor says. “I said, ‘There’s some weirdo following me. He says he wants to rape me. I’m going to call the police next.’ I called 911, but I dialed it wrong. It didn’t go through.”
She hung up and decided on the library. Her car was just too far away. “I kept thinking, ‘I’m not getting raped tonight — this is not going to happen,’” Schnoor says. “I was totally shaking. I didn’t know exactly what I was going to do. It was just a matter of trying to get there. If that door wasn’t going to open, I had the umbrella in my hand. I was going to beat the shit out of the guy.”
The library door opened, and Schnoor ran inside. “I was yelling at the girls behind the counter, ‘Call 911!’ They’re saying, ‘What?’ I’m just ‘Call 911! Now! ’ ” The police were on their way when a library security officer pointed to a man who’d just entered the library and asked whether he was the one. “Sure enough, this guy had walked into the library and was just sitting there — he didn’t leave; he just stayed there,” Schnoor says. “It was very frightening. I kind of lost it. The police said, ‘Do you want to press charges?’ I said, ‘Absolutely.’ Why let the guy wander around and let him do it to somebody else?”
Schnoor took a day off work to go to the courthouse and see that justice was done. She wanted the man off the street. Weeks later, she was still shaken enough to tell prosecutors that she didn’t want to sit in the same room with the man who had scared her so badly. He pleaded guilty to disorderly conduct. A misdemeanor. Two days in jail, one year’s probation and a requirement that he see a psychologist. With the blessing of the state’s attorney’s office, he was released from probation early and never spent his second day behind bars. “I wasn’t impressed by the way they handled it,” Schnoor says, “but I didn’t want to take any more time off work. They promised me they’d put him in rehab or therapy. They said he had a history of similar incidents. I don’t know what his history is — all they said was, he had a history.”
Bryan K. Noel, 39, most definitely has a history. His record of violence against women dates back to 1992, but he’s always escaped with little, if any, real punishment. One of his victims has spent more than a decade fighting to hold the system accountable. She’s now battling the Illinois attorney general’s office. What Noel did to her was as preventable as it was awful, but no one will admit they did anything wrong. Not the prosecutor who let Noel off with a plea bargain. And not the state agency that should have kept him away from her.

All these years later, Lisa Weisser still sobs as she recalls the attack.
Remarkably, Weisser and her attacker agree on virtually every detail: She was fully dressed and taking a nap when Noel slipped into her room at McFarland Mental Health Center on July 3, 1994, unnoticed by staffers who were supposed to be closely watching him. He asked her whether she wanted to make love. She said no. He sat down on her bed and French-kissed her. He pulled up her shirt, then her skirt. He fondled her. He put his fingers inside her. Then he had full-fledged intercourse with her. Weisser told a state police investigator that she cried and told Noel no. Noel doesn’t dispute that she resisted. He told the investigator that she was “very tense and not loosening up” and that she was “playing hard to get because sometimes women even like to wrestle in bed.”
Patients in the residence hall told the investigator that Weisser was frantic immediately afterward, crying and shaking and pacing. The staff, Weisser recalls, acted as if it was business as usual. “I got no support, no counseling,” Weisser says. “I was completely alone. I had no one. The nurse shouted out loudly in the community area where everyone could hear: ‘Bryan, did you rape her?’
“I thought, ‘Why me?’ I was 34 at the time. I’m no beauty. I felt like there was something wrong with me.”
That Noel attacked Weisser when he had a chance shouldn’t have surprised anyone. Unlike other residents who had their own rooms, Noel’s bed was next to the front desk of the residence hall so the staff could keep a close eye on him. It’s easy to see why. According to police reports, he was a suspect in a sexual assault at McFarland committed four months before Weisser was attacked. He had a reputation for having sex with other residents and told police that none of the other women he’d had intercourse with at McFarland had complained. Shortly before attacking Weisser, Noel told another resident, within earshot of a nurse, that he’d returned from a home visit so that he could “get laid.” The staff told police that Noel would stare at female residents, stalk them, and grab them. A psychiatrist told the investigator that Noel constantly thought about sex and talked about having sex with female residents. The psychiatrist, who also treated Weisser, said she believed Weisser was being truthful when she said that Noel had raped her. Although Weisser showered as soon as she could, police still found semen and pubic hairs on her underwear. The case sounded like a slam-dunk: Besides physical evidence, investigators had the victim and assailant agreeing on what happened, Noel’s history of inappropriate behavior toward women, and witnesses who saw Weisser shaking, crying, and frantic after the attack. This wasn’t the first time Noel had hurt a woman: In 1992, he was arrested twice for assaulting a girlfriend. No charges were filed, but she obtained an order of protection and told the court that she had sustained bruises and a black eye during the attack. Noel was charged with misdemeanor sexual abuse and felony sexual assault for the attack on Weisser. John Schmidt, then an assistant state’s attorney, drew the case. After Noel demanded a speedy trial, Schmidt agreed to drop the felony charge in exchange for Noel’s guilty plea to the misdemeanor. He was sentenced to six months in jail and two years’ probation. He was not required to register as a sex offender to help police — and the public — keep a watchful eye. It’s not clear whether he ever did jail time. His court file shows that his jail term was subject to waiver if he stayed out of trouble, and the Sangamon County Jail has no record that Noel served his sentence.  Schmidt, of course, is now Sangamon County’s top prosecutor — he won reelection to the state’s attorney post last year without opposition. Weisser, who was being treated for clinical depression when she was raped, says that she didn’t get much sympathy from Schmidt years ago when he told her about the proposed plea bargain. “He said, ‘Frankly, Lisa, I’ve got a stack of files a mile high, and I’m not going to get to your case,’” Weisser says. Schmidt did not return a call from Illinois Times, but Steve Weinhoeft, first assistant state’s attorney, insists that his boss would never say such a thing. “There’s no chance he would have said that to her,” Weinhoeft says. “Victims are never treated in that manner by this office.”
Weinhoeft, who reviewed his office’s case file for Illinois Times, says that the plea bargain was an appropriate resolution because Weisser agreed to the plea and because Noel could have raised consent as a defense. “It’s plain as day,” he says. And Weinhoeft says that disorderly conduct was the best the prosecutor’s office could do last year when Noel gave Schnoor the scare of her life. Told the facts of the Weisser case, Mary Ratliff, medical and legal advocate at the Prairie Center Against Sexual Assault, says it seems the system could have been tougher on Noel. “From what you’ve told me, it sounds like a pretty substantial case for the prosecution,” Ratliff says. “There are ways to overcome the consent defense, and I don’t think they’re being used as much as they could or should be. I’ve been doing this work for four years now, and I’ve seen Sangamon County do better in the past four years. Are enough rape cases being charged? No. We’re always pushing for more.”
Weisser says she agreed to the plea bargain because she felt that the mental-health system had failed Noel as much as it did her. “He was very sick,” she says. “I feel like he was a victim of the state also.”
Such sentiments aren’t unusual, according to Ratliff. “It’s not uncommon for victims to even feel a bit of compassion for the perpetrator, as well as feeling responsible for other people’s burdens, like the state’s attorney’s caseload — ‘I’m putting a lot of people through a lot of trouble,’ ” she says. Told what Noel did to Schnoor 11 years later, Weisser sobs. “Oh no,” she cries. “That’s just the worst news. I don’t feel sorry for him anymore. I feel so guilty now that I didn’t press for harder charges.”
Schnoor gasps when she’s told what happened 11 years ago to a woman she’s never met. “My heart completely goes out to her,” Schnoor says. “God, if that man had touched me, I don’t know if I’d ever have gotten over it.”

It’s clear from the way she cries that Weisser has never gotten over the attack.
Even though she now lives in Arizona, Weisser says she’s terrified that Noel will find her. “All he has to do is look me up in the phone book,” she says. “What if I see him in the grocery store?”
The Illinois attorney general’s office isn’t making matters any easier. The state, Weisser says, was as responsible for the rape as Noel himself. After all, the staff at McFarland knew that Noel was sexually aggressive, knew of his obsession with sex, knew that he’d been leering, grabbing, and stalking — knew enough to keep his bed in a public area so that the staff could keep a close eye on him. “It was very obvious that the state was negligent because they were supposed to watch the guy,” Weisser says. And so she sued the state. Eleven years later, her case is still pending in the Illinois Court of Claims, the venue forced on plaintiffs who’ve been wronged by the government. Under Illinois law, Weisser had to exhaust all other avenues before going after the state. In her case, that meant suing the man who raped her. Although Noel was promptly served with notice of Weisser’s lawsuit in 1996, he never showed up in court, never filed a motion in his defense, never requested a continuance. Weisser’s lawyer didn’t press very hard. It took six years before a Sangamon County judge finally awarded Weisser $600,000 in a default judgment. She hasn’t collected a penny. “I feel like there are times that my lawyer may have dragged his feet,” Weisser says. “Two or three years would pass where I wouldn’t talk to him. He doesn’t return my calls. That’s frustrating.” Henry C. Hagen, Weisser’s lawyer, declined an interview request. 
With her lawsuit against Noel finally adjudicated in 2002, Weisser was free to seek damages from the state. Even if she wins, she won’t get much. Under state law, damages in most lawsuits against the state are capped at $100,000. The statute that limits awards in cases such as Weisser’s doesn’t apply to traffic accidents involving state employees or vehicles. The upshot: If Weisser had been injured in a publicly owned ambulance on her way to McFarland, she could collect whatever a judge or jury thought her case was worth. But because of the Legislature’s decision to limit damages, she’ll never see anything close to the $600,000 that a judge awarded in her lawsuit against Noel. And Weisser’s lawyer is entitled to 20 percent of whatever she might win from the state.
“You can’t get money and be fixed when you’ve been raped,” Weisser says. “I’ve had to fly back to Springfield two times just for this case. Reliving it, it’s horrifying. I want them to say, ‘We were wrong and we didn’t take good care of her and we’re going to change things so it doesn’t happen to anyone else.’ If people would just open their eyes. They just need to see. They’ve got to see the ugly. And when you see the ugly, you can start to change it. “That’s why I’m doing this.”
The state isn’t about to apologize — or pay Weisser a nickel. In briefs filed by the state attorney general’s office, lawyers for the state dispute the notion that Noel was a known danger. They say that the staff told him to stay out of other residents’ rooms and that there was no reason to believe that he couldn’t obey those orders. They’ve asked a judge to dismiss Weisser’s case because she hasn’t hired an expert to testify on the appropriate standard of care for patients such as Noel. At the same time, they’ve fought to keep Noel’s medical records confidential so that neither Weisser nor anyone else will know why he was at McFarland, his prognosis, or how he was treated.
Just how an expert could decide the standard of care for a patient whose medical records are secret isn’t clear. Calls to the assistant state attorney general handling the case were returned by a spokesman who asked for questions in writing. After Illinois Times e-mailed queries, the spokesman said that the office doesn’t comment on pending cases. But the court file is clear: The state attorney general’s office has defended this case as staunchly as possible, almost as if Noel were a victim who deserves the best lawyers the state can offer. Considering how long it has dragged on, the number of court hearings, the briefs filed, and the salaries of state lawyers, Weisser figures that it would have been cheaper for the state to simply settle and pay her the maximum $100,000. She thought that would happen a year ago. She says that her lawyer, who normally would never make any predictions, said that the attorney general’s office had made a settlement offer: All she had to do was give a deposition, sign some papers, and the case would be over. Then, she says, the state backed out and decided to go to trial. A judge finally heard the case in separate sessions in March and June, which Weisser remembers as “two days of hell.”
“It’s the attorney general’s office that’s stalled — I can’t tell you how many court dates were made and canceled,” Weisser says. “I can’t believe how unprotected I was in the state mental hospital, and now I feel like I’m in the clutches of the state again.”
Weisser has no idea when the judge will render a verdict — and so she waits. “No one is saying that he didn’t rape me — no one,” Weisser notes. “I was 34 when this happened. I’ll be 46 in March. In a million years, I never envisioned this. I knew I could lose, but I never thought I could lose like this, where I’m just left suffering and hanging. “If I’m going to lose, just tell me I lost.”
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