No Way Out

by David Kessler

Alex had an uneasy feeling when he heard the words… and the tone.”

  “What do you mean?”

  “I also have a conflict of interest. I can’t cover the case and carry on going out with you.”

  Friday, 12 June 2009 – 21:1500

  It was quite late when Andi arrived home. She had spent the day going over the case-file with Alex and then stayed on for a few hours after he left. It had been exhausting. They were racking their brains trying to figure out how they could refute the DNA evidence. All the other evidence could be effectively challenged and the seeds of reasonable doubt sown.

  But the DNA was a problem – a real problem. It couldn’t just be swept under the rug. In the past, they might have been able to attack the science itself or throw up smoke screens to confuse the jury. But post O. J. Simpson, that was no longer an option. Most defense ploys are like magicians tricks that succeed because of their sheer surprise value, but can never be repeated.

  But all of this was still way down the line. First they had to resolve the issue of trial venue. That was the big question that was going to come up at the pre-trial in two weeks time. And that was what Andi had to focus on now.

  Gene was lying on the bed in her underwear in the dimly lit room, watching the wall-mounted TV, when Andi entered. Andi took off her street clothes in the walk-in closet by the door and then shuffled back into the bedroom barefoot and in her underwear, expecting Gene’s usual warm welcome. But this time Gene, lying on her side, didn’t even turn to look at her, leaving Andi hurt and confused. Gene was never cold like this, even if she was in a bad mood.

  “Where have you been?” asked Gene, her eyes glued to the TV.

  Andi was still perturbed by the fact that Gene was only presenting her with her back. She sensed that Gene had had a bad day as she climbed into onto the bed behind her lover, gently massaging Gene’s raised shoulder.

  “At the office. I had a lot of paperwork to clear up. I’ve just started on a major case.”

  “I know. I had a visit from a process server.”

  Andi stopped massaging, but left her hands in place. She knew now what this was about.

  “I was going to tell you. I didn’t think they’d serve it that quickly.”

  “Are you angry?”

  Gene turned round, brushing off Andi’s hands in the process. There were tears of anger in Gene’s eyes. This surprised Andi. It was very rare for Gene to cry.

  “What do you think? I quit my job in the Big Apple and crossed the continent with you ’cause you couldn’t make it in New York and now you stab me in the back by getting them to serve me with an injunction so I can’t even do my job and help a rape victim?”

  “It wasn’t my idea to get the injunction. I tried to use you as an excuse to refuse the case.”

  “Use me as an excuse?”

  “Conflict of interest. But they wouldn’t buy it. They said you could step aside.”

  “You think maybe I didn’t want to step aside?”

  “It wasn’t my decision.”

  “You could have stepped aside! No one forced you to defend a rapist!”

  “It’s my job,” she snapped, leaping off the bed. “And it’s alleged rapist!”

  With these words, Andi stormed out of the room. With tears now streaming down her own cheeks, Andi went downstairs to the living room. She crossed over to the alcove that housed a desk and bookshelves, which they had set aside as a study and office. On the desk was a laptop PC, a docking station and a large monitor. Andi switched on the computer and waited for it to boot up.

  When it had gone through its start-up routine, she clicked on an icon to launch an E-mail program and then clicked on a menu item to download her E-mail. It took a few seconds more for the computer to connect to the broadband and download the eMail. There were five messages. Four were from old, distant friends wishing her luck in her new job. But it was the fifth message that startled her. It read:

  That rapist scum-bag Elias Claymore is unworthy of your assistance and deserves everything he gets. Make sure that you are not around when justice is finally delivered or you will only have yourself to blame.

  Lannosea

  An alarm bell went off inside her head, and the words “hate mail” flashed across her mind’s eye. But who sent it? And from where? Maybe they could be tracked down via their service provider. She scrolled up to the “From” field, and saw that it had come from a webmail address. It could have been sent from a public library or an Internet café. There would be no way to trace it to a person.

  A range of emotions swept over her like a quick succession of waves. The first was a wave of fear; the second, anger. But if the first was a surfer’s tube-ride, the second was a tsunami.

  And who the fuck was Lannosea?

  Monday, 15 June 2009 – 10:25

  “What’s she doing here?”

  Elias Claymore’s reaction appeared to border on paranoia when Alex first brought Andi into the room at the Ventura Pre-Trial Detention facility that had been allocated for their conference.

  “Allow me to introduce my co-counsel on this case,” said Alex. “Andi Phoenix.”

  Claymore’s eyes darted away to Alex for a moment before returning to Andi, the suspicion lingering in his eyes.

  “You didn’t say anything about co-counsel… nothing personal Miss Phoenix.”

  “Oh, please, call me Andi,” she said, in a re-assuring tone that was clearly calculated to put him at ease.

  She held out her hand warmly. Claymore hesitated before reaching out to shake it. Alex watched as they shook hands weakly. Then he held out his own hand, not to shake but to indicate a waiting seat. Claymore sat down, not taking his eyes off Andi. Andi followed suit, leaving Alex last to take his seat round the table.

  “The first thing we need to talk about,” Alex began, “is a change of venue.”

  “Why?”

  “Perhaps I can explain,” said Andi.

  She looked at Alex. He nodded.

  “According to the latest stats, Ventura County has just under 700,000 Caucasians and 17,000 African-Americans. That makes the state 2.1 percent Black and 87.5 percent White.”

  “That’s not necessarily a bad thing. I’m probably more unpopular with my own people at the moment.”

  “I doubt that,” said Andi. “We’re talking about ultra-conservative Whites.”

  Claymore tried to sound jovial.

  “Well, hey… I’m a conservative!”

  “I know Mr. Claymore and that might have worked if it was a minor charge. But this is rape and a lot of your natural supporters have already turned against you right now.”

  “You’ve done an opinion poll?”

  He grinned, desperately, trying to make light of the situation. Andi maintained her neutral face.

  “We’re keeping an ear to the ground… and those are the vibes we’re getting.”

  Claymore looked over at Alex, who nodded imperceptibly, content to let Andi earn her keep.

  “In any case,” Andi continued. “We’re know from the stats that Ventura juries tend to be convicting juries.”

  “What about Hispanics?” asked Claymore.

  “Hispanics can be any race and they’re included in the black and white stats. But we have a separate figure of 287,000 Hispanic and Latino citizens. Of those, 272,000 are classified as White Hispanic. There are also some 50,000 Asian citizens who are likely to be hostile to working class blacks, but might admire you and a further 17,000 of mixed race who may be a bit more friendly. But those two groups combined are less than ten percent of the population.”

  Claymore looked crestfallen.

  “And what do we need? If we had the ideal choice.”

  Andi was about to speak when Alex finally entered the discussion.

  “Ideally, we’d have a jury of liberal whites.” He was going to elaborate on his reasons, but held back, realizing that it would sound just a little too cynical.

  “So what can we do?”

  Alex and
Andi exchanged glances. In the end it was Andi who spoke.

  “In the real world, the outcome of one controversial case can often have a knock-on effect on the next. In the O J Simpson case, the acquittal of the cops who viciously beat Rodney King was still fresh in the minds of the jurors. The truth of the matter is that a case that may be cast iron and watertight in the courtroom can fall apart in the jury room.”

  “So are there any recent cases we can take advantage of?” asked Claymore. The cynical words fell uneasily from his lips.

  “Unfortunately not. In this case, the key to winning was getting the right jury,” said Andi. “And that means holding the trial in the right district and then using challenges to prune and cherry pick the jury. Sometimes that might be as simple as getting a jury of the right ethnic group. In the O J Simpson case, the defense were able to get a predominantly African-American jury. In the Rodney King case it was an all-white one in Simi valley where a lot of cops lived.”

  “And can we do that?”

  Again Andi looked at Alex. Again he nodded to let her know that he was content to let her speak.

  “In this case it’s a little more complicated. Even if we can get an all-black jury, it’s by no means certain that such a jury would favor you. Like you said, a lot of blacks have been alienated by your outspoken views.”

  After a while, Claymore broke the silence.

  “Could I ask a personal question Miss Phoenix? Did you volunteer for this job?”

  Alex felt a stab of fear, wondering if Andi’s answer was going to be tactful or brutally honest. But whatever it was to be, he knew that he couldn’t interfere now.

  “That’s not a personal question,” she replied with a reassuring smile. Claymore was watching her closely. “I...”

  She looked at Alex. But his face offered her no hint of assistance. “I was asked by Mr. Sedaka to help, and I agreed. Alex was... most convincing.”

  Alex coughed nervously. In front of him were several copies of the evidence report, at this stage a mere dozen pages stapled together.

  “OK, I think we’d better get a move on. We’re working on some research for the change of venue motion, but in the meantime we need to review the evidence.”

  He handed copies of the report to Andi and Claymore.

  “The case against you appears to be made up of the following. One: a statement of the alleged victim including the second of two photo line-ups. Two: a medical report about the victim’s physical condition right after she reported the incident. Three: police photographic evidence of same. Four, a DNA comparison between crime-scene DNA and reference samples taken from you and the alleged victim. Five: eye-witness evidence after the alleged rape that you were seen running from the crime scene. Six: your arrest record – six counts of rape. We may be able to block that, depending on how we want to fight the case, but in practice it was so high profile, every member of the jury is going to know about it long before they enter the courtroom.”

  “I don’t know where they got this stuff,” said Claymore shaking his head, “I mean all that other stuff.”

  “Some of it’s easy enough to demolish,” said Alex. “The witness who saw you running away is weak. But the real problem is the DNA and the medical and photographic evidence. The visible injuries to the girl make it hard to argue consent and the DNA makes it equally hard to deny that a sexual encounter took place.”

  “I don’t understand how they could’ve got DNA evidence.”

  “How do you mean?” asked Andi, suspicion creeping into her tone.

  “I never touched her. I’ve never even met her.”

  “All right,” said Alex. “We’ll go into that in a moment. But first let me make one thing clear: we can argue that the sex was rough but consensual or we can argue DNA contamination and see if we can come up with anything. But not both. We have to nail our colors to the mast quite early. In effect you’ve already committed us to saying that it’s mistaken identity because of what you told the police. Technically we can still change your story, but it won’t look good.”

  “But why should I change it? I never even met the bit…”

  For a few seconds they all avoided each other’s eyes as they realized what Claymore had been about to say.

  Monday, 15 June 2009 – 13:00

  “There goes Uncle Tom.”

  There was mocking laughter and jeering as Elias Claymore shuffled his way to the end of the table.

  “Watch where you’re sitting!” snarled the man next to him, as Claymore barely brushed against him when he sat.

  Claymore tried to ignore the taunts. But when he raised the food to his mouth, he felt a sharp elbow in the rib cage, making him drop it. He knew that this was the test. If he showed weakness now, they would make his life a living hell. He had to stand up to the bullies before they saw him as easy prey.

  “Look cut it out!” he shouted, leaping to his feet and turning to face his attacker.

  The man rose to face Claymore. They were evenly matched for size, but the man was a lot younger and probably a lot fitter.

  “You talkin’ to me Tom!”

  The words were backed up by an open-handed shove.

  “Yeah you!” Claymore shot back, shoving the man equally hard.

  Then the man took a swing at Claymore. Claymore ducked and dove in under the younger man’s guard, clamping on a side headlock and a hooking his right leg around the younger man’s left leg in a grapevine. The young man took a swing at Claymore with his left fist, which Claymore deflected with his open right. But he couldn’t avoid the younger man’s rabbit punch to the back of his head, a second before he swung the man round and grappled him to the ground.

  At that point the whole place erupted into pure chaos as a nervous guard hit the panic button

  Monday, 15 June 2009 – 16:35

  “So when are you going back to LA?”

  Alex was sitting with Juanita in the reception of their San Francisco office on the 15th floor of the Embarcadero Center. He had flown back that afternoon, after the consultation with Claymore, and was now briefing his paralegal on the background to the case.

  “We’ve got the prelim in twelve days and I’m planning on pushing hard for a change of venue.”

  “What are the chances?”

  “Well the DA will fight us all the way. It’s Sarah Jensen. I don’t know if you’ve heard of her.”

  “I’ve heard of her,” said Juanita. “Ventura County Domestic Violence section. The rumor mill says she’s got her sights set on her boss’s job.”

  “And her boss has his sights set on Sacramento.”

  “Exactly. Anyway, we already had a fight on our hands about Andromeda Phoenix taking second seat and we won that. But that’s ‘cause she didn’t really have a leg to stand on. That means she’ll be even more determined on this one. And she’s got time to do her homework so it’s going to turn ugly.”

  “Maybe you should step aside and let it turn into a catfight. Assuming she’s good enough.”

  “Oh Andi’s good. But I don’t know if she’s fully–”

  The phone rang. Juanita picked it up.

  “Alex Sedaka’s office… oh hallo, Ms Phoenix… I’ll put you through right away.”

  She put the call on hold.

  “I could have taken it here,” said Alex.

  “I need this phone free for other calls,” said Juanita in her sharpest tone. “This is an office.”

  “Okay boss,” he said, with a smile, as he rose from his chair.

  Juanita put the call through to his office before he got there, making sure that his phone was ringing by the time he went through the door.

  “Hi Andi,” he said into the handset.

  “Hi Mr Seda – Alex. Listen, I’ve been working here with the demographic department at my firm and we’ve been trying to figure out which are the best counties to try the case. We’ve come up with a list of counties based on demographic analysis and some public prejudice questionnaires.”

&nbs
p; “And which counties are they?”

  “Well the best is Alameda. I emailed a file over to you. Take a look at the demography. It has about 300,000 Hispanics to 200,000 African-Americans and half a million white non-Hispanics. It’s also got 350,000 Asians, who may or may not be friendly to Claymore. We’ll have to run some surveys to check that out.”

  “Okay. But the 200,000 African-Americans won’t necessarily be too friendly to Claymore.”

  “No, but I was thinking about this white liberal issue.”

  “What about it?”

  “Well, you can cherry pick the liberals at the voir dire.”

  “Yes, but whatever cherry picking we try and do, the prosecution will do the opposite.”

  “I know that. But it’s a question of how many liberals there are on the panel.”

  “Yes, but like you said, Andi, there’s no such thing as a white liberal county.”

  “Alameda’s the closest you’ve got. Don’t forget Berkeley right on your doorstep.”

  “You could be onto something,” Alex conceded. “The trouble is, the prosecution has ten peremptories too – and they’ill fight us every step of the way.”

  “Only if you tip your hand.”

  “What’s that supposed to mean?”

  “If you make it look like you’re afraid of a black jury and wary of Asians, they might just go for it themselves. The trick is to let the judge suggest it as a compromise.”

  Alex thought about this for a moment.

  “Andi, if you were here right now, I think I’d kiss you.”

  Friday, 26 June 2009 – 11:20

  “...In addition to the unfavorable comments on the talk radio stations, an opinion poll in the area has shown that seventy eight percent of the women and ninety six percent of the men in the district believe my client to be guilty.”

  The judge in Court 12 at the Ventura Country Superior Court appeared to be listening attentively to Alex, giving no impression on his stony face of which way he was inclined to go. If he had formed an opinion, his face was not saying.