No Way Out

by David Kessler

  He had been working at the forensic science laboratory in Ventura County for half his life and all he had to show for it was a rented roof over his head. He didn’t own a car and didn’t even know how to drive. He was, according to everyone who knew him, feckless and barely capable of doing anything other than by rote. His job title was “Lab Technician,” but this could just as easily have been translated as Gopher. Unlike other younger technicians at the lab, he was never sent on courses that could improve his job skills because it was widely assumed that he lacked the aptitude for them

  When he asked about this, he was told that the others were younger and thus “age-qualified” for courses that were designed to enable young people with ambition and initiative to progress. When he pleaded with them that he too wanted to progress. they told him that because of his low SATs and his poor results in the psychometric tests that he wasn’t eligible. He had felt bitter at the time, but too passive to do anything about it. Now he had come to accept it.

  Most of the time he worked in the Forensic Alcohol Section, but occasionally he had to run errands for the Toxicology or Controlled Substance sections. Never for the DNA Section. But he knew how they worked and at times it could get chaotic. In fact the lab was chaotic. That was why he didn’t always remember to do things he was supposed to, you see, not because he was lazy or incompetent.

  But his bosses didn’t always see things that way. That was why today he had been summoned by the Forensic Alcohol Supervisor, the head of his administrative section.

  “You remember a month ago, you received an official caution about using a stale batch of testing solution?”

  Cole remembered the incident very well. He had been acting under intense pressure in a busy lab and had grabbed the nearest batch of made-up testing solution. What he hadn’t realized was that it was an old solution that another technician had been using and was about to throw away. It could have been disastrous if he had used it because he was running tests on real-crime samples. Fortunately the other technician had spotted it just in time and intervened.

  “Yes sir, but I’m more careful now. I always make sure it’s a fresh batch.”

  “Well that isn’t exactly true now is it Mr. Cole.”

  Jerry Cole’s face flushed.

  “I don’t know what you mean sir.”

  “You know that every three months, the Department of Health Services sends blood samples spiked with alcohol to verify that facilities such as the crime lab are getting accurate results?”

  “Yes sir.”

  In fact he didn’t know anything of the kind. But he was afraid to admit it. Also, he sensed where this was going.

  “Well they did such a test last week and we have the results back. I’m sorry to have to inform you that you failed the test.”

  “What… me personally?”

  “Yes Mr. Cole. The samples were coded and the other technicians passed. You were the only one who failed.”

  “I must have been under pressure sir, otherwise –”

  “It’s the same pressure for everyone Mr. Cole. You were the only one who failed and this was on top of your mistake a month ago with a live batch. You were given an official written warning then, so I’m afraid there can be no further warnings. We’re going to have to let you go.”

  “But this isn’t fair sir.”

  “It complies with the labor laws and I’m afraid the decision is final. Here is your written notice, effective immediately. We’re giving you one month’s pay in lieu of notice, plus lay-off pay for twenty years service which should see you through until you find a new job. Also you’re entitled to three weeks holiday and again we’ve given you pay in lieu of that. I’ll send a member of security to help you clear out your locker.”

  Fifteen minutes later, Jerry Cole was on the streets and unemployed.

  Wednesday, 19 August 2009 – 10:15

  On the third day of the trial, the tension in court was even greater than the day before, as the judge took his place his place. This was to be the first time the defense had a crack at the accuser. Claymore was sitting at the defense table uncomfortably, the fear visible in his eyes.

  Andi realized that while Sarah Jensen had acted wisely from the point of view of courtroom tactics, she had been less than kind to Bethel personally. For Bethel had had to go sleep last night knowing that the following day she would be subjected to a thorough and rigorous cross-examination.

  But Andi realized that perhaps she was projecting her own discomfort that had left her tossing and turning in an almost sleepless night at the hotel last night. And to make it worse, she didn’t even have the comfort of Gene to hold her and reassure her. When she finally woke up – late – she felt as if she hadn’t slept at all.

  After the Court was called into session, the judge looked up at the defense table and told Alex that he could begin his cross-examination. Andi thereupon rose and said:

  “Your Honor, I will be cross-examining Miss Newton.”

  Claymore tensed up when he heard this. Andi realized that Alex hadn’t warned him about the change of plan. Sarah Jensen rose from her seat.

  “Your Honor I object. Lead counsel began the cross-examination yesterday. Absent a compelling reason, it would be quite improper for co-counsel to take over in the middle.”

  Andi well knew why Sarah Jensen was objecting. A cross-examination of an alleged rape victim by a man would inevitably elicit sympathy for the victim, no matter how gently it was conducted. Whereas a cross-examination by another woman – especially an attractive one – allowed scope for some probing questions, and even a modicum of aggression.

  Justice Wagner hesitated for a moment.

  “No I think I’m going to allow it. Cross-examination barely started yesterday. And the defendant has the right to have his defense handled according to the best judgment of his counsel.

  Sarah Jensen sat down reluctantly. Andi gave her a knowing look and then returned her attention to Bethel Newton.

  “Miss Newton, would it be correct to say that when you got into the car, you didn’t know the man who’s car you were getting into.”

  “Yes.”

  Weakly.

  “In other words you were getting into a stranger’s car?”

  “Yes.”

  “And were you not aware of the danger to which you were exposing yourself?”

  “I know that it isn’t all that smart to hitch a ride, but I didn’t have a choice.”

  “Are you saying that he forced you into his car?”

  “No. But my car had broken down and I couldn’t use my cell phone. It had a flat battery – the phone, I mean.”

  Andi kept a neutral look on hers face. She was forcing Bethel to elaborate on her answers, taking her into unfamiliar territory.

  “But you were aware that there is always an element of danger when one gets into a stranger’s car?”

  “Yes.”

  “Assuming of course that you didn’t want what ultimately happened?”

  “Objection,” Sarah Jensen interrupted.

  “Sustained. Counsel will refrain from embellishing her questions. The jury will ignore defense counsel’s last remark.”

  “You’re honor we have the right to raise the issue of what this witness actually wanted.”

  “Is the defendant changing to a consent defense?”

  “No, but the intentions of the witness have a bearing on her overall credibility.”

  “Then phrase it as a question Ms. Phoenix, not as an inflammatory statement.”

  “Miss Newton, did you want to have sexual relations with the driver of the car?”

  “No of course not.”

  “Then would not the wisest course of action have been not to get into his car in the first place?”

  “I suppose so.”

  “Yet you did get into the car?”

  “I didn’t think about it.”

  “Nevertheless would you not concede that by getting into a stranger’s car you advertised that you h
ad less concern for the consequences than the average female?”

  “Objection!”

  Again Sarah Jensen was on her feet. Andi tried to sound calm as she replied.

  “Your Honor, if I may quote a ruling of Justice Compton in the California Court of Appeal – ‘Under such circumstances it would not be unreasonable for a man in the position of the defendant here to believe that the female would consent to sexual relations.’”

  “Your Honor, counsel for the defense forgets that Justice Compton specified that it only applied – quote ‘in the absence of an emergency situations’ unquote. In this case, the vict– witnesses car had broken down in the middle of nowhere and her cell phone battery was dead. Furthermore, the official grounds for the reversal was that the trial judge allowed the jury to consider the defendant’s previous conviction for a sex offense – for which he was still on a suspended sentence.”

  Ellen Wagner nodded.

  “I believe that it was also pointed out that if it were applied consistently it would also allow hitchhikers to rape drivers and allow drivers to rape male hitchhikers and hitchhikers to rape male drivers.”

  Andi was feeling flustered. She had overplayed her hand and Alex was now looking at her with unconcealed anger. The judge continued.

  “I am directing the jury as a matter of law that the act of getting into a stranger’s car does not in itself entail an absolute forfeiture of the protection of the law against rape.”

  Sarah Jensen sat down, casting a smug side-glance at Alex, who in turn looked somewhat frustrated.

  “Miss Newton,” Andi continued, “is it possible that the reason you felt you had no choice but to hitch a ride is because you were tired of trying to get your car started and anxious to get back into town?”

  “Yes,” said Bethel, grateful for the chance to revert back to one-word answers. She had said in direct examination that she had been unable to restart the car on her own. She hadn’t noticed the subtle shift in wording that Andi had introduced into the questioning.

  “And is it not also possible that, being tired, you may have been mistaken about at least some of the details of the event – not the major details perhaps, but at least the minor ones.”

  “Yes,” said Bethel nervously. The prosecutor had looked away from her just after the question was asked and this was a pre-planned warning sign.

  “For example,” Andi continued, “if you say you were raped, then there is certainly no reason to doubt you. If you say you didn’t give your consent to sex then you ought to know what you wanted and no one should question that. But is it not possible that you might be mistaken in what is, at the end of the day, just one of the details? Like the identification of the rapist?”

  “The man who raped me is your client Elias Claymore,” she said with grit in her voice.

  “But did you not initially tell the police that the man who raped you was in his early twenties?”

  “I did at first.”

  The voice was weak. But more significantly, Alex noticed that she was no longer relying on one-word answers, even when she could get away with them.

  “Would you say that this accused is in his twenties?”

  She looked round at Claymore

  “No. But when I came back after lunch, I told them he was older?”

  “Ah yes, when you came back. And that was when you also told them that you’d seen the rapist on a TV talk show.”

  “Yes.”

  “And how old does the accused look to you now?”

  “About fifty.”

  “Fifty eight actually. So how could you confuse him for a man in his twenties?”

  “I don’t know,” she replied weakly, wiping a tear out of one of her eyes.

  “And what made you realize that he was older?”

  “Like I said, I saw him on a TV in a store window. He was presenting the talk-show. But I didn’t know who it was. Only I realized that it was him when I saw his face in close-up.”

  “But you saw the rapist in close up didn’t you?”

  “Yes.”

  “And you thought he was in his twenties.”

  “I was frightened.”

  “Frightened would hardly make fifty eight seem like twenties would it?”

  “I was confused.”

  “Are you sure you’re not confused now?”

  “No.”

  “You’re not sure if you’re confused?”

  “No I mean I’m not confused now.”

  “Is it not possible that at the second photo line-up you identified a man who may perhaps have, in his youth, looked like the man who raped you, but who in fact was a completely different man?”

  “I don’t understand.”

  “Is it possible that you saw an older man on TV who looked a bit like an older version of the man who raped you and so you decided that this man was the rapist?”

  “No. Look I know what I’m saying! The man who raped me is that man sitting over there!”

  Andi paused, put on the look of one who was hurt but still defiant, and spoke in a slow but impassioned voice.

  “Is this the first time that you’ve accused a man of rape?”

  Bethel looked over to the prosecutor who nodded discreetly. Andi could have made an issue of such non-verbal communication, but she chose to ignore it, putting pressure on Bethel to answer.

  “No.”

  The voice was weak and accompanied by a girlish sniffle.

  “Is it not a fact that you made a similar accusation against a fellow high school student called Luke Orlando two years ago?”

  “Yes.”

  “And then you retracted it and admitted that you were lying?”

  Claymore squirmed uncomfortably when he heard this.

  “I wasn’t lying.”

  “Then why did you admit that you were lying at the time?”

  “Because after I withdrew the accusation, my family and friends were all pestering me to reinstate the accusation and that was the only way I could get them off my back.”

  “Oh so you admitted you were lying after you withdrew the accusation?”

  “Yes. But it wasn’t a lie! He did rape me!”

  “So why did you withdraw the accusation if it was true?”

  She opened her mouth to speak, but no sounds came out.

  “You can take a moment to compose yourself Miss Newton,” said the judge, gently.

  “It’s complicated.”

  “Would you like a sip of water?” asked the judge.

  Without waiting for an answer, the judge signaled one of the bailiff’s to refill the water cup that Bethel had drained slowly while testifying under direct examination. When Bethel had taken a few sips and calmed down, the judge nodded for her to continue.

  “I knew that if I followed through with the accusation I’d be subjected to this sort of thing... and...”

  “What sort of thing.”

  “Like... this...”

  The tears were flowing again.

  “Oh you mean cross-examination.”

  “Yes,” said Bethel in a little-girl voice, her eyes squinting to dam up the tears.

  “But isn’t that my job?”

  “Yes.”

  The voice was almost a whine by now.

  “So you were afraid because you knew the prosecutor would do his or her job?”

  “I was afraid of how he’d make me seem.”

  “And how was that Miss Newton?”

  “Like a slut.”

  “Why do you think he’d make you seem like a slut?”

  “Because that’s what they do.”

  “They?” asked Andi, raising his eyebrows.

  “Lawyers. Defense lawyers.”

  “Is it only defense lawyers who do that sort of thing Miss Newton?”

  At the prosecution table, Sarah Jensen tensed up. She knew that Andi was leading Bethel into dangerous territory, and she could object. But she couldn’t afford to let it seem to the jury as if she was protecting the witness
from being tested. So she held back. With any luck Andi would just create sympathy for Bethel by attacking her in this way.

  “I don’t know what you mean.”

  “Oh I think you do. Didn’t the boys in your high school vote you the “slut of the year” in their student magazine poll?”

  “Yes,” she cried, sobbing bitterly into her handkerchief. “But I wasn’t like that at all. I wasn’t a slut. It was just the boys being silly.”

  “But they evidently thought it was true Miss Newton.”

  Sarah Jensen finally rose to her feet like an avenging angel, realizing that she had let it go on too long.

  “Your Honor,” this is hardly relevant to the proceedings. The witness objected to the way the boys had characterized her even at the time.”

  “That may be ,Your Honor,” Andi responded, “but the witness’s past behavior pertains to her veracity.”

  Sarah Jensen tried again.

  “That may be relevant to the previous rape accusation, Your Honor. But how the victim was characterized by others is another matter. This poll was done in a high school by a group of adolescent boys. It merely reflects the adolescent boys’ mentality. It hardly represents reliable evidence of the victim’s past behavior.”

  Justice Wagner hesitated. After a few seconds, she spoke slowly.

  “It may not be the most reliable evidence Ms Jensen, but it is evidence.”

  “But it is not evidence of a form that permits cross-examination. If defense counsel wants to introduce this evidence, she should call the author of the student magazine article and the rules of hearsay evidence should be strictly applied.”

  “That would surely restrict the content of his testimony to the point of rendering it worthless,” said the judge.

  “In that case, let defense council call the boys who answered the opinion poll.”

  “That would be extremely impractical Ms Jensen.”

  “In that case I reiterate my objection to the evidence. If this evidence is deemed to be relevant, then at least it should be admitted in a form that lends itself to the test of cross-examination of its sources.”

  “No I don’t agree Ms Jensen. I think it’s important to protect the accused’s right to a fair trial, and that includes testing this witness’s testimony, by allowing defense counsel to put these points to her,