Prosecutor Still Believes Rape Story -- Men Set Free After New Evidence Emerges

Jeff Schmieder and Mark Clark are free men today, out from under the dark prospect of long prison terms after their conviction for rape was thrown out of court.

But freedom and exoneration are as different as believing a crime occurred and being able to prove it, said King County Deputy Prosecutor Dave Ryan.

Although Ryan believes the woman who accused the two men, he acknowledged that his conviction unraveled when defense investigators were able to prove that Regina Louise Birindelli was in jail the day she claimed she was brutalized.

Ryan's only choice, he said, was to ask the court to set them free.

The men and their attorneys insist that the woman fabricated the story, either because she was a police informant or because her husband owed Schmieder and Clark money. Prosecutors insist she never was an informant.

Ryan is convinced the woman could not accurately recall, months after the fact, when the assault occurred.

The case was complicated by the fact that all the players had criminal records and were, court documents say, involved in the Auburn drug scene.

"She did the best her drug-addled mind could do in trying to reconstruct what happened to her in May 1998," Ryan said. "She was wrong about her time frame.

"Does it mean she wasn't raped, and that these guys didn't rape her? It might, and that's why I felt duty-bound to dismiss the case."

Defense attorneys paint a picture of an incompetent police investigation and a prosecution bent on conviction in spite of a flimsy case.

"They should have had a clue," said attorney John Henry Browne, who was hired by Schmieder's family.

"What happened to those men is scary and disturbing," said private investigator Jerry Esterly, who dug up the evidence that set the men free.

Clark and Schmieder have maintained their innocence.

Police and prosecutors missed the fact that Birindelli was in jail in Auburn on May 18 - the day she testified that the assault occurred.

She told police she had gone to the trailer court where Clark lived to retrieve her husband's truck. She says Clark, Schmieder and a third man handcuffed her, and Clark and the other man raped her.

But there were problems with the story, Browne said. For one, she never reported the assault. Indeed, detectives didn't talk to her about it until August, when they said they were led to Birindelli on a tip.

While she gave a taped statement, there was no evidence of an assault. The woman also wavered in recalling events, though Ryan attributes that to her drug use. She failed to pick the third man from photographs, and he was never charged. And it was difficult, said Browne's associate, Tim Dole, to pin down a date the assault occurred. Birindelli eventually settled on somewhere between the 16th and 18th of May.

But Schmieder was in jail on domestic-assault charges May 15, 16 and part of the 17th, and Birindelli had been booked into jail on May 17 and held until the 18th under her old married name, Regina Louise Alexander.

"She slipped through the cracks," said Ryan.

Still, Ryan believes the backbone of the case remained intact - the woman's vivid story.

"I felt it was quite compelling," he said.

And the prosecutor wasn't alone. Esterly, the defense investigator, attended a pretrial interview. He expected she would crumble under the inconsistencies. She didn't.

"I was, quite frankly, surprised," he said. "She did good."

The story also convinced the 12-member jury, although it never learned Birindelli had been jailed that weekend.

"She was an admitted methamphetamine user, and we took into account whether or not her recollection of specific facts and events was credible," said jury foreman Steven St. Claire. "We decided it was."

Clark and Schmieder have returned to their families.

"We told the truth the whole time, and it got us damn near to prison," Schmieder said yesterday. "I just wish them people would admit they got bamboozled."

Staff reporter Ronald K. Fitten contributed to this story.

Mike Carter's phone message number is 206-464-3706. His e-mail address is: mcarter@seattletimes.com