Double Jeopardy

by William Bernhardt

  “At the moment, not much. But that will change soon.”

  “When you learn somethin’, let me know. I wouldn’t mind having the chance to stick that pig where it hurts.”

  “If the opportunity presents itself, I’ll be happy to oblige.” The man blew cigarette smoke through his teeth. “I guess you’ve heard what happened to his predecessor.”

  Moroconi’s face became noticeably less animated. “No. What?”

  “Fish food. Washed up on the shore of Lake Palestine. They’re not sure how long he’s been there.”

  “What happened to him?”

  “The word isn’t out yet officially, but …” He paused dramatically. “It involves fire.”

  “No shit! Then—”

  The man nodded.

  “Look, I can’t screw around anymore. As long as I’m stuck in here, I’m a sitting duck.”

  “That fact has occurred to me.”

  “You son of a bitch.” Moroconi’s face and neck muscles tensed. “All right, goddamn you. I’ll go first. I’ll tell you where you can get the money. Half of it, anyway. After I’m out, and you’ve delivered the goods, I’ll see that you get the other half.”

  “That’s acceptable. Under the circumstances.” He inhaled deeply. “Six to the right, two to the north, three to the left. Commit that to memory.”

  Moroconi made sure he had it, then asked, “How are you gonna get me what I want?”

  “Not to worry.”

  “I don’t think you should come here like this again. It’s too risky.”

  “Agreed. Next time I’ll visit during the day.”

  “Are you crazy? I’ll be in the courtroom all day long. They’ve got five sergeants breathing down my neck from start to finish.”

  “I’ll arrange something. Tonight I wanted us to have the opportunity to talk face-to-face. Privately. That shouldn’t be necessary again. I’ll get you what you want.”

  “I don’t see how.”

  “You don’t have to. I’ll take care of it.”

  “Listen to me, chump. I’m tellin’ you, they won’t let you near me!”

  “Of course they will.” He ground his cigarette out on the table. “I can do anything I want, Al. I’m with the FBI.”

  WEDNESDAY

  April 17

  13

  8:50 A.M.

  “C’MON, CHARLIE, YOU GOTTA help me out here.”

  “Sorry, Travis. Courtrooms give me the shivers.”

  “It’ll only be for a little while.”

  “Ten seconds would be ten seconds too long. Get someone else.”

  Travis was inside the courthouse coffee shop pleading with Charlie Slovic, the proprietor. “There’s no one else here who fits, Charlie. You’re a perfect match.”

  “Besides, who would watch the shop while I’m gone?”

  “I’ll take care of that,” Travis assured him. “I promise. You won’t get into any trouble. Think of it as your civic obligation. Kind of like jury duty.”

  “I’ve never done jury duty.”

  “Well then. You owe us.”

  “Sheesh.” Charlie turned down the coffee burners. “I really don’t want to do this, Travis.”

  “But you will. That’s what makes you a great American. Am I right?”

  Charlie sighed. “Yeah. Right.”

  Opening statements passed without any major surprises. On behalf of the prosecution, Cavanaugh gave new meaning to the word melodramatic. Travis thought she overdid it—this situation was already so supercharged with emotion that it reeked of overkill. But the jury didn’t appear to mind. Their attention was riveted to her, except for occasional diversions, when Cavanaugh would describe a particularly horrific act and the jury would glance at Moroconi with disgust.

  Travis’s opening statement was much shorter and hinged upon a single point. He didn’t contest the fact that Mary Ann McKenzie had been raped—the medical evidence established that beyond any question. He didn’t try to dissuade the jury from sympathizing with her; as he assured them, he felt for her, too. The only question was whether Al Moroconi was a member of the gang that assaulted her. In order to convict, Travis told them, they would have to find that Mary Ann’s identification of Moroconi was trustworthy. Beyond a reasonable doubt.

  Hagedorn instructed the prosecution to call its first witness. To Travis’s surprise, Cavanaugh led with Mary Ann McKenzie. He had expected her to testify, but not right off the bat. The usual prosecution strategy was to build up to the victim—establish the crime through medical and forensic testimony, then bring on the victim for a devastating wrap-up. But for some reason, Cavanaugh had decided to lead with her ace.

  Mary Ann McKenzie took the stand. She was sworn in, her voice choking on the phrase I do. Not a good sign, Travis thought. If she can’t get through the oath without a choke, cross-examination might prove impossible.

  She looked terrible. Her face was partially wrapped in bandages and still covered with large blue-black bruises. Travis knew she was undergoing reconstructive plastic surgery to restore some semblance of her former face. He also knew it wouldn’t work; this was permanent damage, far beyond the curative powers of the surgeon’s scalpel. Her neck and right arm were in a body cast—probably due to injuries sustained as she was dragged behind the car. She appeared weak, pale, and emaciated.

  Cavanaugh began the direct examination. Travis noted that she was using her nice-nice voice; some questions were barely louder than a whisper. After passing through the preliminaries, Cavanaugh brought Mary Ann to the night of the incident.

  “Would you please tell the jury what you were doing that night?”

  Mary Ann’s lips parted, and her voice emerged in a hoarse whisper. “I went to O’Reilly’s. It’s on Mockingbird. Near campus.”

  “Is this a place you frequented?” Cavanaugh asked.

  “I’d never been there before in my life.”

  “Why were you there that evening?”

  “I was looking for Dierdre, my roommate. A sorority sister told me she might be there. She was supposed to loan me her psych notes so I could study for an exam we had the next day.”

  “Did you find Dierdre?”

  “No.”

  “What happened?”

  “I searched all through the bar. She wasn’t there, so I left. As I crossed the parking lot these men jumped out of nowhere and grabbed me.”

  “How many were there?”

  “Six. Three black men, three white. I think. Everything happened so quickly.”

  Cavanaugh advanced toward the witness stand. “Can you tell us what happened next?”

  “They threw me down on the asphalt and … hit me. In the face. Several times.” She pointed to a still-vivid abrasion just beneath her left eye. “That’s when I got this. They hit me so hard—I was afraid I’d lose my eye. Then they took my keys out of my purse, threw me in the trunk of my car, and closed the lid.” She turned toward the jury, eyes wide. “It was so … terrifying. I was trapped in the trunk—I couldn’t see, I couldn’t hear. I didn’t know what they were going to do to me. I was so scared.”

  Cavanaugh stood beside Mary Ann, careful not to block the jurors’ view, and addressed her in a quiet voice. “When did you see them next?”

  “After they stopped the car. They opened the trunk and pulled me out by my hair. We were somewhere near White Rock Lake—I’m not sure exactly where.” Her hands began to tremble. “Two of them pinned me down to the ground. It was wet and muddy. I tried to get away, but there were so many of them—and they held me so tight. I was helpless.”

  “What happened next?”

  Mary Ann looked down at her lap. “One of them ripped off my slacks and … and—” She turned away and covered her face with her hands.

  “Did he rape you?” Cavanaugh asked.

  Technically, Travis knew Cavanaugh was leading the witness. He also knew that if he objected, the jury would crucify him.

  Mary Ann nodded her head. Tears began to appear in the c
orners of her eyes.

  “I’m sorry,” Cavanaugh said. “You have to answer verbally for the benefit of the court reporter.”

  After several false starts, Mary Ann managed to say, “Y-Yes. Yes. They all did.”

  “How many of them?”

  She shook her head. Tears were streaming down her face. “All six of them. Some of them more than once. The third one”—she clenched her eyes shut—“he peed on me.”

  “The man urinated on your body?”

  She nodded. “In my mouth. On my breasts. All over me. Then he flipped me over on my stomach, pressed my face into the mud, and said—that thing.”

  “I’m sorry, Mary Ann, but you need to tell the jury what he said.”

  Mary Ann looked as if she would rather die, but she eventually answered the question. “He said, ‘I bet she likes it doggie-style, stupid cunt.’ And then he—he—oh God!” Her voice dissolved into uncontrolled sobbing. “I begged them to stop! It hurt so much! I begged them! But they just kept on and on. I was crying, pleading. And they laughed at me!”

  Travis checked the jury. Her outburst had electrified them. If they had any questions about her veracity before—which Travis seriously doubted—the questions had evaporated.

  Cavanaugh paused to allow Mary Ann to collect herself. “Did you recognize any of the men?”

  Mary Ann raised a trembling hand and pointed at Moroconi. “He was there.”

  “Was he the one who urinated on you?”

  “No. He came after that. Fourth.” Her eyes seemed to be turning inward, as if she were experiencing the whole nightmare over again. “He was so mean. He hurt me. On purpose. He pounded on my breasts. He tore me. Inside. I was bleeding and crying, and he didn’t care. The doctors say I’ll never be able to—to—” Again her words were drowned in tears.

  “Have children?” Cavanaugh completed.

  Mary Ann nodded. “Y-Yes.”

  “And you subsequently were forced to undergo an emergency double mastectomy. Correct?”

  Mary Ann covered her chest. “Yes.”

  “Do you recall anything else Mr. Moroconi did or said?”

  “Yes. He was the one who suggested they tie me to the back of my car and drag me.”

  “Why would he want to do that?”

  “He said, ‘Just to teach the dumb bitch a lesson.’ ”

  “Subsequent testimony will show you were dragged for over a mile,” Cavanaugh said quietly. Counsel was testifying, but Travis wasn’t about to protest. “What happened after that?”

  “They tossed me back in the trunk, drove around for several hours, then threw me out on the side of a dirt road. Like I was … just a piece of garbage.” Her voice was beyond tears; it took on an empty, despairing tone. “I hurt so bad. I felt so … ruined. I just wanted to die. That was the only thing I kept thinking. I just wanted to die.”

  14

  10:45 A.M.

  WHEN MARY ANN FINISHED, the courtroom was deadly silent. Several of the jurors were crying.

  Travis knew he would have to break this spell. He would have to play the villain and ask Mary Ann the tough questions. He also knew that even if the jurors ultimately agreed with him, they would hate him. Who wouldn’t?

  “Psst.”

  It was Moroconi, hissing into Travis’s ear.

  “Yeah?”

  “Ask how often she gets laid.”

  “What?”

  “Ask her about her sex life. I bet she’s had a good fuck or two in her time.”

  “Brilliant suggestion,” Travis said. “You’re a real sweetheart.”

  “Listen to me, Mr. Big-Shot Attorney. I’ve seen this routine played before. The jury might be a little pissed off at first, but once they hear about all the other times she’s had sex, all the different positions she’s tried, and all the different guys she’s screwed, they’ll change their minds. They’ll wonder if she wasn’t looking for some action in that bar that night, if she didn’t maybe ask for what she got.”

  “Get a grip, Moroconi,” Travis said emphatically. “No way.”

  “What do you mean? You got to do this.”

  “I don’t got to do anything. Especially not for—” He stopped himself just in time.

  “For what? For a guy too dirty for you to touch with your lily-white hands? I tell you, this is a sure winner!” Moroconi’s face tightened. “Who’s the client here?”

  “You are. And I’m the attorney. An officer of the court. And I’m not doing it.”

  “You self-righteous son of a bitch. What the hell are you plannin’?”

  “Just wait and see.”

  “You prick. You’ll be sorry you screwed with me.”

  Hagedorn pounded his gavel on the bench. “Mr. Byrne! I hate to interrupt what is undoubtedly a fascinating conversation, but may I inquire if you would like to cross-examine this witness?”

  Travis rose to his feet. “Yes, your honor. I would. But may I request a brief recess before we begin?”

  Hagedorn glanced at his watch. “Well, we could probably all use a break. Court will resume in five minutes.”

  Travis didn’t have a nice-nice voice, but he was going to have to fake it as best he could. If the jury thought he was being mean to Mary Ann McKenzie—prematurely—they’d never listen to another word he uttered.

  “Miss McKenzie, my name is Travis Byrne, and as you probably know, I represent the defendant. I’d like to ask you a few questions, if that’s all right.”

  “Certainly,” she said, barely audibly.

  “I know this is very hard for you, ma’am. If you need to stop at any time, just tell me.”

  “All right.”

  “Do you feel able to proceed?”

  She nodded.

  “Thank you. I appreciate your cooperation.” Surely that was a sufficient show of sympathy. Now to get on with it. “Ma’am, when you were first questioned by the police, you didn’t identify Mr. Moroconi by name, did you?”

  “Of course not. I didn’t know his name. I’d never seen him before that night.”

  “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?”