William Bernhardt - Double Jeopardy

“You gave the police a physical description, though, didn’t you?”

“I … told them what I remembered.”

“You told them”—Travis glanced down at his file and read from the police report—“that you were assaulted by three white men and three black men. You described one of the white men as having black hair, an average build, and medium height.”

“Right. That’s Mr. Moroconi.”

“Would you tell the jury where you actually identified Mr. Moroconi?”

“At the lineup. The next day.”

“And how did the police select the men who would stand in the lineup?”

“Objection,” Cavanaugh said, rising to her feet. “Beyond the personal knowledge of this witness.”

Hagedorn shrugged. “If she doesn’t know, she can say so. The witness will answer the question.”

Now that you’ve told her what to say, Travis mused. Thanks a bunch, Judge.

“I’m afraid I don’t know,” Mary Ann said, to no one’s surprise. “You’d have to ask the police officers in charge.”

“Believe me,” Travis said, “I will. Tell me what happened at the lineup.”

“Five men came out and stood on the other side of a one-way mirror from me. The officer in charge asked them all to say … something.”

Travis didn’t remember that being mentioned in the police report. “What did he have them say?”

“He had them repeat the statement”—her voice trembled—“about liking it doggie—”

“That’s all right, ma’am,” Travis said, cutting her off. Stupid mistake. If you don’t know the answer, don’t ask the question. “And did you identify Mr. Moroconi?”

“Oh yes. Almost immediately.”

“By his voice or his appearance?”

She thought for a moment. “By his appearance.”

Thank goodness. Travis picked up his file. “I’m looking at the police photograph of the other men in that lineup, ma’am. One of them is significantly taller than Mr. Moroconi. One of them is probably in his sixties and one of them looks barely old enough to drive. Isn’t that correct?”

“I don’t remember what the others looked like.”

“Your honor, I request permission to publish this photo to the witness and the jury. It has been premarked as Defense Exhibit Number One and its authenticity has been stipulated to by the prosecution.”

“Any objections?” Hagedorn asked.

Cavanaugh shook her head no.

Travis handed copies of the photo to Mary Ann and the bailiff, who delivered it to the nearest juror. “Mr. Moroconi was the only man in the lineup who fit the general description you gave the police, wasn’t he?”

“I never thought about it,” Mary Ann said. “He’s the one who did it. I know that.”

“And that’s why Mr. Moroconi is in court today, isn’t it?” Travis continued. “Because you identified him in that lineup?”

“I suppose.”

Travis pushed away from the podium. It was a visual cue to the jury that something important was about to happen. “The only thing I haven’t been able to figure out, ma’am, is how you could possibly have recognized him.”

“Wh-what do you mean?”

“Ma’am, this incident occurred between eleven P.M. and two o’clock in the morning, isn’t that correct?”

“I believe so.”

“There was no moon that night, was there?”

“I have no idea.”

“Believe me, there wasn’t.” He glanced at Cavanaugh. “And if counsel isn’t content to take my word for it, we can have the judge look in the almanac and take judicial notice of the fact.” He returned his attention to Mary Ann. “There’s no artificial lighting out at White Rock Lake, is there, ma’am?”

“No, I don’t think so.”

“No lights, no moon. Middle of the night. In other words, it was dark.”

“It was dark. That’s true.”

“You didn’t see Mr. Moroconi in the parking lot, did you?”

“Well … no.”

“Mr. Moroconi isn’t the man who threw you into the trunk, is he?”

“No.”

“You spent the entire drive to White Rock Lake alone in the trunk of the car, right?”

“Yes.”

“You were then assaulted by six men, one after the other, correct?”

Cavanaugh jumped to her feet. “Objection, your honor. Asked and answered. I see no reason to drag the witness through these horrible events a second time.”

Hagedorn pursued his lips unpleasantly. “I assume Mr. Byrne is building toward something new.”

“That’s correct, your honor.”

“Then you’d better get there quickly. But the objection is overruled.”

Travis continued. “Mary Ann, you were assaulted by two black men first, correct?”

“That’s right.”

“And the third man beat you, then rolled you over facedown, right?”

Her head slowly lifted. “Yes. But—”

“And you remained facedown for the remainder of the assaults, right?”

“Yes, but—”

“And after the last man finished, you were tied to the back of the car. Still facedown, right?”

“Y-Yes.”

“And you remained in that position when you were placed in the trunk again, barely conscious, then deposited on the roadside hours later, where you remained until you were discovered by the police the next morning, correct?”

“That’s … correct.”

“Did Mr. Moroconi put you in the trunk?”

“N-No.”

“Did he take you out and leave you on the side of the road?”

“No, that was someone else. The first one.”

The jury was watching him now—Travis could see it out of the corner of his eye. They were beginning to follow his line of reasoning. “Miss McKenzie, you said you didn’t see Al Moroconi in the parking lot. You obviously didn’t see him when you were locked in the trunk. When you arrived, it was a dark, moonless night, and you were immediately accosted by your assailants. The third man, to use your own words, pressed your face into the mud. You remained facedown in the mud until you were put back in the trunk—by another man—and subsequently tossed out on the roadside—by another man.”

A few of the jurors were nodding. Nonetheless, Travis decided to ram the point home. “Ma’am, you didn’t see Al Moroconi in the parking lot, you didn’t see him in the car, and you didn’t see him at the crime scene. When did you see him?”

Tears were once more streaming down her cheeks. “I—I don’t know exactly.” She released a heart-wrenching cry. “But it was him. I know it was.”

“Isn’t that because you want it to be him? Because you want someone to be punished for the horrible crime visited on you?”

“Objection!” Cavanaugh shouted.

“Sustained.”

Travis proceeded undeterred. “Miss McKenzie, can you tell me with absolute certainty that the man sitting at defendant’s table is the man who assaulted you?”

She raised her chin defiantly. “Yes. Absolutely.”

“Take a good look, ma’am. I want you to be certain.”

“I’m certain. He’s the one. I’ll never forget that face as long as I live.”

“I see.” Travis approached defendant’s table. “Sir, would you please produce your driver’s license?”

He did so.

“Permission to publish this to the jury?”

Hagedorn nodded.

Travis handed the license to the bailiff and waited as it was slowly passed down the two rows of jurors. “As you can see, ladies and gentleman, the man now sitting at defendant’s table is Charlie Slovic, a nice gentleman who runs the courthouse coffee shop. He switched places with the defendant during the break. Mr. Moroconi is waiting out in the hall.” He turned toward the back of the room. “Sergeant.”

The sergeant at arms stepped outside and returned with Moroconi. Together they walked to the front of the courtroom.