Free Double Jeopardy by William Bernhardt

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?”
    “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