Widow wanted only justice

By JACOB H. FRIES St. Petersburg Times

Published Sep 10, 2005

Judge John D. Carballo saved this case for last. It was complicated, he explained. Some fatal car wrecks are simply accidents and others are crimes.

This one, however, falls in between, Carballo said.

Cindy Berger, 43, huddled in the last row of the courtroom Friday, waiting for a glimpse of the woman who took her husband’s life in a car crash. Berger hadn’t come for vengeance. She just wanted to see that justice was served, the law upheld.

Joanne Marchak, 50, her blond hair pulled back in a pony tail, sat in a purple dress a few rows ahead. She never turned around.

“This is a situation where good people do bad things,” Carballo said.

Early on, Marchak’s lawyer, Roger D. Futerman, asked Carballo if the whole proceeding might be avoided, suggesting instead a meeting in the judge’s chambers. Carballo refused.

He said he spent his lunch hour reading letters about Berger’s husband, Charles, or “Chic” as friends called him, and he knew people in the courtroom had written some of them. Such matters, he told Futerman, should be handled publicly.

Carballo asked Futerman to make a decision: enter a plea or make an argument. While not charged with a crime, Marchak was facing two traffic citations in the March 16 crash: for careless driving and failing to obey a traffic signal.

Futerman leaned over to Marchak and whispered.

“She wants to plead no contest,” Futerman announced.

With fault no longer in dispute, the judge would soon issue Marchak’s sentence. But first, he would hear the facts of the case, then from Berger’s family.

The facts, it turned out, were grim.

Marchak was driving north on Virginia Street in Dunedin about 12:36 p.m., headed to the tanning salon on Main Street where she works. Deputy Nicholas Lazaris showed the courtroom a diagram of that intersection.

He said Marchak’s 2005 Kia Sedona left the roadway, climbed onto the brush-covered median, sideswiped a car, then entered the intersection. Witnesses heard the engine rev and gears shift, Lazaris told the judge.

Marchak was accelerating when she broadsided Berger’s westbound Chrysler Cirrus, the deputy said. The impact drove the steel of Berger’s car 3 feet into its interior.

“He was struck very hard,” Lazaris said.

Cindy Berger began to cry, head down, her brunette hair falling in her face. One of the women at her side cradled her shoulder.

Carballo then asked the deputy to recount what Marchak had told them immediately after the crash. That interview occurred in a hospital, where Marchak had gone, complaining of pain on her sternum. Lazaris read from the report, which indicated Marchak’s other injuries: a broken nail and a bruised finger.

Marchak’s explanation for the crash was brake failure, the deputy said, noting her car was only 4 months old.

Futerman later interjected, “I believe she sincerely believed that, but she probably did hit the accelerator.”

The judge asked Marchak for her side of the story.

“I really don’t have a lot to say. . . . I panicked when I realized I couldn’t stop,” she said. “The next thing I knew I thought the car was on fire and the air bag deployed. I didn’t see anything.”

Before Carballo gave his decision, he asked Cindy Berger if she wanted to say anything. Her voice faltering, she said she didn’t think she could, but her sister-in-law, Linda Davis, would go ahead.

Davis went to the podium and read a letter about her brother, a husband to Cindy, a father to two teenagers, Elyse and Chase, and a friend to many others. She said they will all suffer without him and for that, Marchak should face some consequences.

Carballo agreed, sentencing her to driving school, $1,000 fine and a year without a license.

“I think you were inattentive . . .” the judge told her. “I don’t know if you are remorseful.”

Marchak interrupted, “I’ve barely slept. It’s haunting.”

Outside the courtroom, Cindy Berger hugged sheriff’s deputies, who told her they did their best. She thanked them and said she was pleased.

“This is all we wanted,” she told them. “I just wanted her to spend a year thinking about what she did.”

As Berger spoke, Marchak sat on a bench down the hall, waiting to pay her fine. In the end, the two women, whose lives are now tied together, never looked each other in the eye.