No Way Out

by David Kessler

  What on earth did it mean?

  But there was another question nagging away at Andi. How did this “Lannosea” know that Sherman and Alex had badgered her into working on the Claymore case? She hadn’t told anyone.

  Wednesday, 15 July 2009 – 18:05

  Alex was reading through the report about the case, trying to find other weaknesses. So far, Bethel’s change of mind was the only one. But it looked like the most promising. The only thing that Alex was worried about was that it seemed like such an unlikely change of mind that he was wondering if the DA’s office had a trick up their sleeve.

  Aside from that, he also had the problem that this was not a case that depended on the testimony of the victim. They also had DNA evidence. If Claymore had said that he had consensual sex with Bethel then it would have been a whole different ball game. They could have argued consent. Although the medical evidence and pictures made that difficult, the defense at least had breathing room.

  But Claymore had closed the door on that by claiming that there had been no sexual contact between himself and Bethel Newton – and even that he had never met her.

  That left Alex and Andi with the problem of explaining why she had accused him. Of course the obvious answer was that she had been attacked by some one who looked like him. Alex had even played a long shot by asking Claymore if he had an identical twin. But Claymore responded with such a withering look that he didn’t have to open his mouth for Alex to know perfectly well what the answer was.

  The phone rang. Alex picked it up. Juanita told him that it was a call from the Santa Ritter jail. Alex said he’d take it.

  “Hallo Elias.”

  “Pardon?” said an unfamiliar voice.

  “Oh I’m sorry,” said Alex, I thought you were some one else.”

  “This is the deputy governor of the Santa Ritter jail. I’m afraid I have to tell you that your client, Elias Claymore, has been stabbed.”

  “Stabbed?”

  “Yes sir, but not fatally. He’s in the jail hospital. We have a fully equipped hospital here.”

  “But how did it happen?”

  “Usual story… a fellow inmate with a shank.”

  Alex was surprised to hear this described as “usual.”

  “How serious is it?”

  “It was pretty serious. He was stabbed in the stomach. They’re still operating, but the anesthesiologist came out a couple of times and said it looks like he’s gonna make it.”

  Alex breathed a sigh of relief.

  “Did you catch whoever did it?”

  “Not yet, but we’ve got CCTV so we’ll look at the tapes.”

  “Okay what about security for my client?”

  “We’ve got guards posted outside the operating theatre and we’ll keep him in protective solitary until the trial.”

  Until the trial?

  Alex sensed the full import of these words. If Claymore was found guilty and imprisoned, he wouldn’t be kept in solitary any longer. He might be transferred to an open prison, but he’d have to join the general population. Alex realized in that moment that this wasn’t just about his client’s freedom. If he didn’t secure an acquittal, Elias Claymore’s life wouldn’t be worth two bits.

  Thursday, 16 July 2009 – 16:20

  When he opened his eyes, he didn’t know where he was. All he could see was that the walls were white. He tried to gather his wits. The last thing he remembered, he had been thinking about his early life and the crimes he had committed. Was that where he was now? In prison? Had it all been a dream? Had he never really been released? Or escaped?

  He struggled to remember.

  He had joined several black power groups as they struggled to liberate themselves – and some of them had used rather clever tactics. For example, they availed themselves of the Second Amendment right to “keep and bear arms.” But when the White Establishment decided that the second amendment wasn’t quite so sacred – now that the Brothers were asserting their rights under it – the movement split. Most of them didn’t want to risk their newfound support among the white liberals by falling afoul of the new gun laws. But Elias Claymore held out for continued bearing of arms, arguing that self-defense still required possession of guns and that in any case the White Establishment had no right to change the rules in the middle of the game.

  After serving a one-year stint in prison for firearms offences, he came out angrier than ever and over the next two and a half years he raped five white women, after “practicing” his technique first on three black ones.

  By this time, the Brothers regarded him as more of an embarrassment than an ally and it was widely rumored that it was one of his own who betrayed his hiding place to the FBI. He still remembered the day the Feds came for him. It was anger, not fear, that he felt as he saw the flickering lights in the distance and knew that he had nowhere to run from the vast convoy of lawmen that it had taken to bring him down.

  He considered fighting to the death and taking down as many of the “pigs” with him as he could. It was not vainglorious courage. If he went to prison, he fully expected to be killed there. So he saw no reason not to make his last stand here and now. But he realized that if he could at least have his day in court, he would have the one thing that the White’s Man “free press” had denied him until now: a platform from which to speak and from which his message would surely be heard.

  He was arrested and charged with six counts of rape, based on the testimony of those who came forward. Sentenced to nine years, he escaped after one, under the cover of a prison riot, with the aid of another group – this one basing its ideas on racially separatist version of Islam rather than secular revolution.

  But three years in Libya and Sudan had shattered the illusion. He had seen corruption and double standards in Libya. Then when rumors of a US government plot to kidnap him started floating around, he moved on to Sudan. It was there that he saw how the blacks in the south of that country were treated as second class citizens. No amount of excuse-making and weasel talk could change that.

  Yes, many of those blacks were Christians and their persecution was partially religious rather than racial. But so what? If that was their belief system, were they not entitled to it? Did it make any difference if their oppressors claimed that it was religion rather than race that reduced the Blacks of southern Sudan to the status of second-class citizens? Oppression was oppression and if he wasn’t prepared to make excuses for oppression in America then why should he make excuse for it here in the Third World?

  And the more he spoke to the Christian blacks in the south of Sudan, the more he learned about their culture and ideas and the more he realized that he had fallen for some one else’s illusion. He had been led to believe that Christianity was the religion of the oppressors and that Islam was the natural religion of the black man. But it was here that he saw the other side of the coin. And America too was changing. Whatever its faults, America was growing and learning from its past mistakes. At least the American way had a future.

  He had once said that indifference was impossible: if you’re not part of the cure you’re part of the disease. But as he looked toward his homeland – his real homeland, America – he saw that more and more people were becoming part of the cure. He had seen the first glimpse of it back in the sixties – in the freedom riders of all races. He saw it now in the newly enfranchised young who were asserting themselves politically as well as in more trivial ways. The same wind of change that had once swept colonialism out of Africa had blown “Jim Crow” out of America.

  Yes, there was still injustice in America. But there was also resistance to that injustice. Yes, there was still suffering. But there was also hope. Yes there were the lingering after-effects of past injustice. But those lingering after effects would be swept away too, as long as good people kept trying and never gave up working together.

  And it came to this: after seeking the truth in a foreign desert – a truth that almost eluded him – Elias Claymore saw the light of d
ay and found happiness where he had started out, in his own backyard.

  So at the end of three lonely years in exile, the prophet of conflict and bitterness finally returned home.

  AUGUST

  Monday, 17 August 2009 – 10:00

  “Hear ye! Hear ye! Hear ye! The Superior Court of the State of California, Alameda County, is now in session, the Honorable Justice Wagner presiding. All persons having business before the Court come forward and give your attendance and you shall be heard. God save this Honorable Court and the United States of America.”

  Justice Ellen Wagner – a senior judge of the California Superior Court – took her seat in Court Number 7 of the Rene C. Davidson Courthouse in Oakland and the others followed suit. In her sixties, she was a striking, bespectacled African-American woman who projected dignity and gravitas from every pore. A veteran of the civil rights struggle, she had, in her youth, endured threats and even beatings as a freedom rider in the nineteen sixties. Along with a quarter of a million others, she had stood on the National Mall when Martin Luther King made his immortal “I have a dream” speech.

  She had always claimed that her education began with the 1954 decision in the case of Brown versus Board of Education Topeka in which the Supreme Court ruled that racial segregation in publicly funded education was unconstitutional. But it was not the education offered by the system in light of the ruling that she was referring to. It was the education provided by the ruling itself. As a precocious eleven-year-old she had followed the case closely, encouraged by her aunt, who taught her to read. She had sat on her aunt’s porch, enthralled, as her aunt explained the more difficult words of the eloquent arguments used by civil rights lawyer Thurgood Marshall.

  Thirteen years later, Marshall was appointed by President Lyndon Johnson to serve as the first African-American justice on the highest Court in the land. One year after that, Ellen Wagner fulfilled her own childhood dream by winning a coveted place to clerk for Marshall at the Supreme Court.

  A panel of 150 veniremen was assembled in about twelve rows, sitting there looking nervous. This was quite a large panel, even for a felony case. But the judge was mindful of the fact that this was a high-profile case involving a popular and controversial public figure, and it was necessary to ensure that there was a large enough panel to allow for the many challenges for cause that were expected.

  The veniremen had been shown a video explaining to them all about their duties as jurors and now after a day and a half of waiting around they had finally been brought into a courtroom. The question they had all been wondering about was whether they would be selected for the Claymore case. Not all of them wanted to. They knew that it was going to be a long case and they had jobs to do and lives to lead.

  But some of them did want to be on the jury, for various reasons. Serving on a jury in a high profile case could be a passport to easy money. It was not unusual these days for jurors in high-profile cases to sell their stories to the press. Some of them “knew” that Claymore was guilty and wanted to “nail that bastard”. Others “knew” that he was the victim of a white man’s witch-hunt and wanted to save him from the clutches of a racist legal system. Yet others just wanted to tell their friends that they were on the Claymore trial jury.

  Sarah Jensen was still on the case, in the prosecutor’s first seat. But now, she was assisted by Nick Sinclair, a short-bearded African-American lawyer in his mid-thirties, assigned to the case by the Alameda DA. The choice was not accidental. The DA wanted to show that this was a crime against women, but also to reassure society that it was not a race issue: hence the combination of Sarah Johnson from Ventura where the alleged crime was committed and Nick Sinclair from Oakland to create the right balance in the jury’s mind.

  At the defense table, Claymore sat uncomfortably. Alex – a quintessential trial lawyer – was very much in his element. He leaned over and whispered a quiet last minute word to Andi.

  “I don’t know this judge, but I she looks kind of tough, so I think we should set the program to assume that she won’t allow any of our challenges for cause.”

  They were using a piece of software called JuryWizard. It allowed them to grade jurors according to how good or bad they were for their case and to prioritize who to cut or challenge without cause. If the judge allowed all or most of their challenges for cause, then they could use their “cuts” quite liberally to clear out the remainder of the undesirables. But if the judge was less accommodating, the peremptories had to be used more sparingly, to screen out the worst of the ones they didn’t want. They could set the software to allow for what percentage of the challenges for cause the judge would allow and it would flag and prioritise the ones they should cut.

  The plan was that Alex would ask the questions and Andi would input the data.

  “Something’s bothering me about this panel,” said Andi, her eyes glued to the prospective jurors.

  “What?”

  “There are hardly any blacks on it.”

  “I know,” said Alex, “But we’ve agreed that it’s not necessarily a disadvantage.”

  “Yes but it doesn’t make sense.”

  “I guess it’s because they’re under-represented on the voting register. A lot of blacks still don’t register to vote.”

  “You’re living in the past Alex. This is the Obama age. Besides, the jury’s also drawn from driver’s license registration.”

  Alex waved his hand dismissively.

  “It could just be a statistical blip. Let’s not make a mountain out of a hill of beans. There’s nothing we can do about it now. We’ve got bigger things to think about.”

  “Is the prosecution ready?” asked the judge

  “Yes Your Honor,” said Sarah Jensen. “I appear on behalf of the People. Mr. Nicholas Sinclair of the Alameda County DA’s office is my co-counsel.”

  Alex rose.

  “Your Honor I appear on behalf of the defense. My co-counsel is Miss Andromeda Phoenix.”

  He sat down.

  “The People may proceed.”

  “Thank you Your Honor.”

  Suddenly – and quite out of the blue – Andi rose, leaving Alex looking surprised if not downright terrified.

  “Your Honor, may it please the court, before we begin voir dire, I wish to lodge an objection to the panel.”

  They all looked at her in confusion, including Alex.

  “The entire panel?” asked Justice Wagner, with measured composure.

  “Yes Your Honor.”

  “Your grounds Miss Phoenix?” asked the judge, her curiosity aroused.

  “Fourteenth Amendment, Your Honor, systematic exclusion of jurors on grounds of race in clear violation of the principles of Batson versus Kentucky, 476 U.S. 79, 1986.”

  Justice Wagner peered down her varifocals at Andi, somewhat bemused. Alex, in contrast, was struggling, not to show his irritation. The case Andi had cited involved the prosecutor’s abuse of peremptory challenges to systematically exclude blacks from the jury.

  “I’m not quite sure I’m following you Miss Phoenix. The jury hasn’t been empanelled yet. The voir dire hasn’t even started.”

  “I’m referring to the clear statistical under-representation of African-Americans on the panel of veniremen. Alameda county is nearly fourteen percent black. On that basis there should be about twenty one or twenty two African-Americans on this panel. I can only see seven – sorry eight. This under-representation is clearly contra to Strauder versus West Virginia, 1880, upon which the previously cited Batson ruling was founded.”

  “Ah yes Strauder,” said Justice Wagner, with a wry smile. “The case that held that States have the right to exclude women from juries.”

  Andi looked flustered.

  “I believe that at the time, the Nineteenth Amendment had not yet been passed, whereas the Fifteenth had. So the ruling merely reflected the state of play with regard to the constitutional position on voting rights for blacks and women respectively. In any event, the ruling remains in
force and has been cited in other rulings.”

  “Yes Miss Phoenix, one of those rulings being Hoyt versus Florida in 1961, in which the Court ruled that making jury service compulsory for men and voluntary for women did not violate the Fourteenth Amendment.”

  Andi gritted her teeth.

  “With respect Your Honor, the Fourteenth Amendment has always been interpreted as referring to racial rather than gender discrimination. The fact is –”

  “The fact is, Miss Phoenix, that the Washington versus Davis case of 1976, held that the legal test to be applied is intention-based not effects-based. The issue that the Court must consider is therefore not whether the result of a practice is racial disproportionality in the jury per se, but rather whether there was a deliberate intent to wholly or partially exclude a particular ethnic group from the jury.”

  An astute observer would have noticed a pained expression on Ellen Wagner’s face as she said these words. But they might not have realized that the reason for this was because her own, highly respected, Thurgood Marshall had dissented in Washington versus Davis.

  Andi tried again.

  “Your Honor, that precedent was set in a federal case under the fifth amendment, citing the due process clause. My citation is of the Fourteenth Amendment at the state level, referring not to its own due process clause but rather to its equal protection clause. It was the wording of the equal protection clause that was explicitly cited by the Court in Strauder.”

  “Be that as it may, Miss Phoenix, the ratio decidendis for holding that disproportionality per se is not a constitutional violation is as applicable to the Fourteenth Amendment’s ‘equal protection’ clause as to its ‘due process’ clause.”

  “In that case, Your Honor I would also cite my client’s Sixth Amendment right to trial by an impartial jury.”

  “Are you saying that failure to ensure racial proportionality in the venire panel would negate the impartiality of the final jury?”