David Kessler - No Way Out

“We would prefer San Mateo or Marin County — or even Napa.”

“What do you say, Mr. Sedaka” asked the judge.

Alex knew that he had succeeded in the first part of his objective: getting the DA and the judge to accept relocation to the Bay area. Now he had to get the judge to choose the one he wanted. That meant making it look as if he wanted somewhere else.

“Your Honor, we believe that many of the people who are most prejudiced against my client are actually those who the prosecution seems to think are biased in his favor.”

“Does that mean you agree to Ms Jensen’s suggestions?”

“Well we’d prefer San Joaquin or Solano. Maybe Contra Costa.”

“What about Alameda?” asked the judge. Sarah Jensen looked as if she was about to say something, when Alex spoke up quickly.

“Side bar Your Honor?”

The judge agreed. Alex and Sarah approached the bench.

“Your Honor,” Alex said putting on his most embarrassed tone of voice. “Alameda county is twenty percent Asian. It’s a well-known fact that a lot of Asians are prejudiced against Blacks and this would deny my client a fair trial.”

“Oh do me a favor!” said Sarah. “There may be some limited residual prejudice against working class blacks. But Claymore is hardly working class. Besides, Mr. Sedaka can use the voir dire to weed out any biased jurors.”

The judge turned back to Alex.

“That makes sense doesn’t it?”

Alex fought hard to maintain a neutral face and shrugged his shoulders.

“That depends on how reasonable the judge is when it comes to accepting challenges for cause.”

“Well I have to assume that a brother judge will be reasonable,” said the judge. “And if you think he abused his discretion you can always appeal.”

Alex used the full range of his acting skills to look like a man who was trapped.

“There’s also the problem of transportation. My office is in San Francisco and that means I’ll have to cross the Bay Bridge during commuter times.”

“Yet you were ready for San Joaquin or Contra Costa,” said the judge, sarcastically.

“Those were second choices,” said Alex feebly. “I still think Sacramento or Santa Clara jury would be more likely to approach this case with open minds.”

“Well you can file an exception for the record. In the meantime it’s decided. The trial will be transferred to Alameda County.”

As they returned to their places, Alex continued his struggle to suppress a smile that was just itching to appear on his face.

“So what’s this weakness you’ve found in their case?” asked Claymore.

They were in a meeting room at the Ventura County Pre-Trial Detention Facility, where Elias Claymore was being held. Alex was taking the lead this time, while Andi sat in almost total silence. And he sounded quite enthusiastic.

“She changed her story… about the attacker’s age.”

“How do you mean?”

“Well initially she told the police that her attacker was in his twenties. They had a photo line-up — they even had a suspect tucked in there with the pictures — but she didn’t chose him.”

“I don’t understand. When they said she picked me from a photograph, I thought that meant she picked me from a book of mug shots.”

“No they don’t do that anymore. They discovered a long time ago that after looking at hundreds of pictures, the witness’s vision becomes so blurred, they can’t tell a stranger from their own mother. It actually led to erroneous arrests in the past and also let guilty people slip through the net. They sometimes use an artist’s impression or E-fit picture when they’re planning on asking the public to help find an unknown suspect.

“But in this case they used mug-shots as a cheap alternative to a line-up if they already had a suspect. It’s called a “photo-lineup.” Instead of hauling in a suspect and risking a civil rights suit, they use photographs of suspects mixed in with pictures of law-abiding citizens matching the description. In fact they can even use out of date pictures. As long as the picture of the suspect is up-to-date and as long as the faces in all the pictures matched the description of the suspect given by the witness, then the identification is valid.”

“But can they do that without my knowledge? Without an attorney present?”

“Sure can. US versus Ash, 1973. But we can challenge it before the jury.”

“But if she told them I was in my twenties, then what picture of me did they put in there? As I am now or when I was in my twenties?”

“When you were in your twenties?”

Claymore looked confused.

“Doesn’t that invalidate the whole thing?”

“No, you don’t understand, Elias. She didn’t pick anyone .”

“So what was all that bullshit about her picking me from a photograph?”

“That was later. After lunch she went back and told them that she’d had second thoughts and that the man who attacked her was older than his twenties.”

“But I’m fifty eight. How’d she get from twenties to fifty eight?”

“Good question. I think they were skeptical too, although their reports are written in that terse police language that doesn’t make it obvious what they were thinking. You have to read between the lines.”

“But I mean what did she say? Did she just come out with something like ‘he was twice as old as I said at first.’

Alex handed Claymore a copy of the statements. Claymore picked it up and started reading through it as Alex spoke.

“She said she now thought that he was in his fifties. But she explained that the reason for the change of heart was because she actually saw him .”

“What do you mean saw him ?”

“I mean saw you . Not in the flesh, but on the TV. She said she was passing an electronics store and she saw you on a TV screen in the display window. It was your show. And that was when she realized — so she said — that it was you.”

“But I mean didn’t they notice the age difference. I mean you said that she said. But didn’t they ask her about it. Didn’t they ask her to explain the discrepancy?”

“They did, but she just said she was mistaken. She claimed that she was under stress. Which is reasonable.”

“But how can stress make her mistake fifties for twenties?”

“That’s the question they don’t seem to have asked. Or if they did, they didn’t receive any answer, as far as I can determine. And that’s the question that we’re going to ask if this case gets to trial.”

“But how come you didn’t notice this before? I thought you were on the ball man.”

“I know, I’m sorry. It looks like I took my eye off the ball. But you have to understand Elias, I was so pre-occupied by the DNA, I only speed-read her statements. Once I went back over them, it practically jumped out at me. But now that I’m onto it, we have an Achilles heel to attack. But they’re still going to keep hammering home the argument about the DNA.”

“The defendant, Elias Claymore is charged with Rape Under section 261 Part a, paragraph 2 of the California Penal Code. How do you Plead Elias Claymore, Guilty or Not Guilty?”

“Not Guilty”

Claymore sat down, looking around the courtroom nervously. He had been brought here for the arraignment on the Information — the document filed by the prosecution within 15 days of the preliminary hearing, setting out the details and particulars of the charges. They were in Court 11 of the Rene C. Davidson Courthouse on Fallon Street in Oakland, before Justice Roberts the judge who dealt with the Master Criminal Calendar.