By Adam Pitluk
Court TV
WAUSHEKA, Wis. Prosecutors called a parade of witnesses Friday in the Mark Chmura sexual assault trial, yet only one teenage girl on the stand was actually at the after-prom party where the purported incident occurred.
And that witness, Margaret Polack, a 19-year-old friend of the alleged victim, wasn't awake when the incident occurred and when she learned of it, went back to sleep.
In the first full day of testimony in the 31-year-old former NFL star's trial,
District Attorney Paul Bucher spent the day questioning five witnesses, three of whom are friends with the alleged victim and two of whom are parents. With the exception of Polack, all of them testified about how they learned of the alleged victim's allegations secondhand they didn't witness anything. Rather, they all made statements to police about what they heard from each other.
The victim, 17 at the time, says the former all-pro tight end beckoned her into a residential bathroom at the party last April and assaulted her. If convicted on the charges of third-degree sexual assault and child enticement, the Super Bowl winner will face up to 40 years in prison.
Among other things, defense lawyer Gerald Boyle spent time in his cross-examination pointing out that none of the girls made statements to police that Chmura physically guided the teen into the bathroom.
"If she [Allison, the victim] said, 'He grabbed my hand and gently guided me into the bathroom,' you would have put that down, wouldn't you?" Boyle asked Kathleen (Kate) Flannery, one of the teenage witnesses.
"Probably," she replied.
Child enticement is actually the more serious of the two charges Chmura faces, and it carries up to 30 years in prison. The statute states that anyone who "causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place" and then engages in sexual activity, among other things, is guilty of child enticement.
By presenting witness after witness telling the same essential story, Bucher may have been attempting to hammer home a consistent account of events. But the repetitiveness, combined with some of the discrepancies that emerged, may have succeeded in boring the jurors and casting doubt on the prosecution's version of the night's events.
At the end of Friday's session, Waukesha County Circuit Judge Mark Gempeler noted that many of Bucher's witnesses had pretty much the same thing to say and that he would like to "streamline" the teenagers' testimonies.
Four of the five witnesses testified that Allison and Kim who was allegedly assaulted by Robert Gessert in the hot tub that night recounted their respective accounts to them after the fact. One after the other, Kate Flannery, Kate Les, 19, Bruce Lese (father of Molly Lese, scheduled to testify Saturday) and Kate Flannery's mother Jeanne Flannery testified how they weren't at the scene of the crime. All they had to go on were reports from others. But Jeanne Flannery said it was actually Molly who did almost all the informing while the other two girls sat still, crying. This story differed from everyone else's testimony.
Here is a story about partying and excessive drinking, an NFL pro-bowler who unexpectedly showed up at a party brimming with pretty young girls, and yet Bucher and his redundant, methodical questioning manner managed to make it seem like a run-of-the-mill day in court.
Boyle did bring some life to the room while cross-examining Kate Flannery. She testified that she had been with Kim on Thursday night for about an hour and a half. Witnesses have been instructed not to discuss their testimony with others. Flannery admitted that in the course of their conversation, the two might have touched on Kim's experience on the witness stand the day before what it was like and what to expect.
But Boyle also got Flannery to admit that there was some talk about the "Sexy Bitches," a nickname the girls used to describe their clique in high school.
"The only thing she [Kim] spoke of was that the club was brought up in court and would probably be in the papers," she said to Boyle, who was leaning over the lectern in the middle of the courtroom.
"Did you talk about your forthcoming testimony?" Boyle asked.
"No. All we talked about was the club nickname," she said.
Boyle also asked Flannery some questions focusing on statements Allison may have made to her about cashing in on her newfound publicity.
"We spoke about it, but she never said she's going to get tons of money," Flannery said.
Flannery also testified as to how drunk Kim and Allison were, which differed from Kim's testimony Thursday. Kim had rambled off a list of some 10 to 14 alcoholic drinks she had consumed throughout the course of the night. "But I wasn't really feeling it until later," she told Bucher. Flannery, on the other hand, testified to the contrary. She said that while the girls were involved in a drinking ping-pong game, they were throwing down drinks and stumbling around.
"Molly kept saying that everyone was really drunk," Flannery said under cross-examination. "They [Kim and Allison] were extremely intoxicated."
Chmura kept the same statue-like posture that he has exhibited throughout. He didn't move a muscle. One female juror eyeballed him constantly, spending more time watching his reaction to the witness's answers than she did watching the witnesses themselves.
The courtroom gallery slowly started to fill up after noon. Although the highly publicized case has been drawing all sorts of media attention, until Friday media have outnumbered observers two to one. At one point, the judge addressed the people in the gallery and asked them to stop going in and out of the courtroom while court is in session.
"The jurors have been tracking some of your movements," Gempeler said.
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