DANE COUNTY DISTRICT ATTORNEY ISMAEL R.

OZANNE
September 27, 2011 Dorinda Freymiller, Special Agent Division of Criminal Investigation, Public Integrity Unit 17 W. Main St. PO Box 7857 Madison, WI 53707-7857 RE: Case Review and Charging Decision Brian Solomon Investigation Dear Agent Freymiller: Thank you for your extremely thorough investigation of this sexual assault case arising from an incident in the early morning hours of April 14, 2010 at the residence of Elena Berg. I have had an opportunity to carefully review the reports and discuss the charging decision issues with other experienced sexual assault prosecutors. Ultimately, we are denying prosecution of Brian Solomon. I write to document the reasons behind this close call decision. Let me start out by stating that I absolutely believe Ms. Bergs account of what occurred when she awoke in her bed the morning of April 14, 2010. We are not declining prosecution because we think that Ms. Berg consented to this sexual intrusion and has now claimed otherwise. Quite the contrary; there is no doubt in my mind that Ms. Berg did not consent to the defendants digital penetration. The issues arise in the context of whether 12 jurors would unanimously agree, beyond a reasonable doubt, that she did not consent. My experience prosecuting these cases informs my decision. At trial, defendants pitch to juries their list of evidence or reasonable hypothesis which they argue are consistent with their innocence in the context of consent. An attorney in this case would argue the fact that Ms. Berg was highly intoxicated and engaged in social drinking 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 that Ms. Berg invited Solomon to spend the night. They would argue the fact that consensual kissing occurred on the walk back to the car, as well as on her bed once they were inside. They will point out the previous consensual back rub and the fact that Ms. Berg remembers nothing after the kissing on her bed, until she awoke to find the assault underway. They will argue the fact that personnel at the City/County Building witnessed the two together in the early morning hours of April 14, 2010 and that while Ms. Berg was tipsy, she was not incapacitated and the two appeared equally affectionate with one another. And, while it is not a legal
Dane County Courthouse 215 S. Hamilton St. #3000 Madison WI 53703-3297 Ph (608) 266-4211 Fax (608) 267-2545 http://countyofdane.com/daoffice/dahome.htm

requirement that sexual assault victims resist their attackers or specifically shout out the word no before a crime occurs, Ms. Bergs acknowledged lack of any response to Solomon when she awoke to his conduct is a case weakness. Additionally, the statement Ms. Berg provided on October 5, 2010 and the statement she provided on November 9, 2010, reveal inconsistencies or some degree 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 April 14, 2010 and later acknowledging that he had). Furthermore, Ms. Bergs acknowledged emotional difficulties from her past trauma would surely be the subject of discovery motions, thus subjecting her to an invasion of privacy above and beyond the routine rigors of these sensitive crimes prosecutions. One of our considerations and concerns is re-traumatizing sexual assault victims based upon what we know will occur in the trial process. Mr. Solomon knows and the reports confirm, that Ms. Berg suffered from specific psychological issues, which would become the subject of defense motions for an in camera inspection. If a judge granted such a motion, Ms. Berg would be required to consent to the disclosure of her otherwise confidential counseling records. In this case, a judge would have a solid basis for such an order. If the court 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. While this 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 buyers remorse on the part of the victim. In other words, the victim consented and later wished she hadnt. Again, while this does not approximate the truth in the present case, the argument is made and perhaps reinforced by the psychological records issue. Another occurring claim is that the victim suffers PTSD and has a compromised ability to recall the consent based upon the prior traumatic assaultive history. Quite frankly, Mr. Solomons statement to you is telling and, in my opinion helpful to 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 quite intoxicated. While they had kissed, she and Solomon had never had any consensual sexually intimate encounter before. Two hours later, at about 5:00 a.m. on a work day, after a serious night of drinking, she describes waking up to him digitally penetrating her using two to three fingers. She described that it really hurt. By contrast, Solomon describes his digital workmanship as producing not one, but two orgasms, in a woman who suffers from sexual trauma on the morning after 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

Ms. Berg evidence retreat from the relationship, attempt to internalize and not report and then finally, with some trauma and emotional difficulty, disclose sexual assault? Mr. Solomons correspondence in the form of poetry reveals his romantic obsession with Ms. Berg, which was corroborated by people in the workplace. Given his understanding of Ms. Bergs various past traumas and consistent warnings about her relationship limitations, his behavior was out of line. I believe he was so desirous of a relationship with Ms. Berg that he took advantage of a situation in which alcohol was abused by all, and his access to her was easy and private. While he may have cajoled some kisses from her, he digitally penetrated her in the likely hope of arousing some response. When that did not happen, he avoided her and re-wrote the story for you. The most we can say for Solomon is that he hoped for consent but he didnt have consent, and he knew it. I would like to take this moment to acknowledge your hard work in this investigation. You covered every base and left no stone unturned. I could not think of anything more you could have done to corroborate this case or chase down possible evidentiary leads. You did excellent work and our decision to not file charges is not a reflection of anything other than an evidentiary analysis of the facts we would have to prove to a jury beyond a reasonable doubt. This investigation is especially important for future reference in the event Solomon is again reported for similar conduct. Wisconsins other acts statute (904.04(2)(a)) permits the introduction in evidence of prior (bad) acts of a defendant to demonstrate his motive, intent, preparation/plan, and/or motive, among other things. Where one victim standing alone may be insufficient proof beyond a reasonable doubt, two or more are not. Additionally, the statute of limitations for the charging of a felony crime in Wisconsin is six years. In the event future reports are made by other victims, the Dane County DAs office has the discretion to review and reverse its current decision to deny prosecution. Thank you for this case submission and the opportunity to work with you. Sincerely _____________________________ Shelly Rusch Assistant DA, Dane County
Copy: Brian Solomon C/O Attorney Marcus Berghahn