No Way Out

by David Kessler

  Martine Yin’s replacement – a twenty something blonde – was reporting on the latest events from the Court. She had been pulled, at short notice from her duties as the weather girl and she thought this was her golden opportunity. But she didn’t really have a firm grasp of what she was reporting on, because although she had followed the case on TV, she didn’t really understand the finer points of criminal law. Most of what she was reporting now, was on the advice of Martine, who had kindly agreed to advise her, to help make sure that her reports were accurate and clear.

  “We do not know what was decided in these discussions, but we can confirm that in addition to the lawyers for Elias Claymore and the prosecution, there was a third party present in the judge’s chambers. This third party was believed to be a lawyer representing LegalSoft, the software company that supplied the Alameda court – and many other courts in the state – with software used by the court service. This includes jury selection software.

  “Earlier on in the trial – on the first day, in fact – co-counsel Andromeda Phoenix objected to the entire panel from which the jury was to be chosen on the grounds that African-Americans were under-represented on that panel. Ms. Phoenix’s objections were overruled, but the matter could be raised again on appeal.”

  Gene Vance used the remote in her left hand to turn the sound down on the TV, while picking the phone handset in her right hand.

  “Hi, I’d like to book a flight to San Francisco International… yes, this afternoon.”

  Friday, 21 August 2009 – 14: 50

  In court, on Friday, the prosecution was rounding off its case. They had presented Bethel’s heart-rending testimony, albeit dented by Andi’s surgical cross-examination. They had called the medical expert who had examined Bethel to confirm that she had internal injuries consistent with rape. This would go a long way to corroborating Bethel’s claim that she had been raped. But to bolster her identification of the rapist, they had relied on Victor Alvarez, who had been forced to concede that because of the quality and type of DNA, the statistical probability that Claymore was the rapist was not as strong as they would have liked it to be.

  So now, Alameda ADA Nick Sinclair was questioning Albert Carter, an independent eye-witness, unconnected to any of the other parties, in an effort to put Elias Claymore at the scene of the crime. The idea was that even if the defense could attack any and all of the elements of the People’s case, the prosecution could counter that it was the combination of several different types of evidence that made their case so strong: victim, eyewitness, medical and DNA. And if Claymore took the stand, they could bring up his priors for similar offences.

  “Then I started walking over in the direction of the screaming,” the elderly Carter was saying. “But I didn’t want to get too close... I guess, I was afraid.”

  “And then what happened?” asked Sinclair.

  Carter hesitated, looking around the court nervously.

  “Well I hid behind a tree, just in case I was seen. I mean I didn’t want to be seen.”

  “And what happened then?”

  It was clear that Carter needed prompting, or at least encouragement. But the ADA knew that he couldn’t be lead the witness. This was direct examination and leading questions were not allowed. Sinclair knew that he was getting there, but slowly. However, he was growing increasingly worried about how he would stand up to cross-examination. With a little bit of gentle coaxing he was telling the jury what he saw. But how coherent would he sound when subjected to one of Alex’s withering cross-examinations?

  Of course Alex would have to go carefully: he wouldn’t want to create sympathy for Carter. But Sarah Jensen knew Alex very well. Even with a few quiet, polite questions he could completely disarm a witness and throw him into confusion. And Carter was a timid old man to begin with.

  “Mr. Carter?”

  “Then?” echoed the witness nervously. “Well that was when he ran passed me.”

  “Who ran past you?”

  “Well... the man.”

  He was getting nervous.

  “Could you tell us if you see the man in the courtroom?”

  Carter pointed to Claymore with an unsteady hand.

  At least it brings out the jury’s sympathies, thought Nick Sinclair.

  “That man over there.”

  “Let the record show that the witness indicated the accused Elias Claymore.”

  “So ordered,” said the judge.

  “And from which direction did he run?”

  “Well... from the direction of the woman screaming.”

  “And where did he run?”

  “To a car. He got in the car and drove off.”

  “And what sort of car was it?”

  “One of those European cars. I think it was blue... I didn’t get the number.”

  “Thank you,” said Sinclair smiling with relief. “No further questions.”

  The ADA sat down sat down. Carter was about to leave the witness stand.

  “Oh just a minute,” said Justice Wagner. “I think counsel for the defense wants to ask you a few questions.”

  Carter, turned back and re-entered the stand, looking somewhat disoriented. Nick Sinclair smiled inwardly at this. When Carter wilted under Alex’s bullying, it would create sympathy for him, and thus for Bethel too.

  But after a brief conference at the defense table, it was Andi who rose to cross-examine. She flashed a reassuring smile at the witness. He knew that she was supposed to be the enemy. But she seemed so inoffensive that he was forced to smile back nervously.

  “Mr. Carter,” Andi began gently. “You say that you were hiding behind a tree is that right?”

  “That’s right.”

  “And were you hiding your face as well?”

  “I don’t understand.”

  “Well if you stuck your head out from behind the tree, then wasn’t there a danger that some one might see you – the very thing you were trying to avoid?”

  “But I didn’t stick my head out. I kept it hidden.”

  “So how did you see the man when he ran past you?”

  “Well he ran past the tree. I saw him when he ran past the tree.”

  “Are you saying that he turned to look at you as he ran past the tree? Like he knew you were there?”

  “No. He just ran straight past like a bat out of hell.”

  “Like a bat out of hell?”

  “Yes.”

  “So he didn’t turn to look at you.”

  “I just said he didn’t,” snapped Carter, irritated.

  “Then how did you see his face?”

  “Well I saw... I mean he... well I mean he didn’t look at me but I could see part of his face. I mean...”

  “Part of his face?”

  “Well… the side of his face.”

  “When he ran past you.”

  “Yes.”

  “Like a bat out of hell.”

  “Yes!”

  Carter looked over at Nick Sinclair. She was lowering her head and avoiding his eyes.

  “OK let’s review what we’ve got,” said Alex. “You heard screams, you were scared, you hid behind a tree and a man ran past you very fast without turning to look at you.”

  “I didn’t say he was running fast.”

  “You said like a bat out of hell.”

  “Did I?” asked Carter, confused.

  Andi paused to let Carter’s response sink in.

  “No further questions.”

  Andi sat down, letting her head drop. Nick Sinclair rose with as much dignity as he could muster.

  “I have no redirect Your Honor.”

  “The witness is excused,” said the judge.

  Carter was escorted gently off the witness stand by a bailiff, as Andi looked on with what looked like a trace of sympathy. Sinclair sat down and Sarah Jensen rose. She regretted rounding off on a low note. It would have been better if Carter had been bullied on cross-examination, instead of simply being made to seem like the absent-minded old
man that he was. But Carter’s testimony was intended as the icing on the cake. It wasn’t really essential. Even Bethel’s evidence, with its uncertainty over the attacker’s age and her past accusations of rape wasn’t really essential.

  The scientific evidence was what counted in this case. In cases where the eye-witness or victim testimony is weak, scientific evidence was crucial. And in this case it was conclusive. The danger was that the jury would hold this debacle with Carter closest to the forefront of their memories. Therefore Sarah Jensen would have to remind them of the formidable scientific evidence in her closing.

  She would take advantage of the O J Simpson trial, in which the DNA evidence was classified by one ignorant juror as “a whole lot of nothing.” This jury was educated enough to understand DNA evidence and would react differently. But there was something else she had to do first.

  “Your Honor, the prosecution rests.”

  Justice Wagner looked up at the clock on the courtroom wall opposite her and then at Alex Sedaka.

  “Will the defense be ready to proceed on Monday morning.”

  “Yes Your Honor.

  “Then this court is adjourned until ten O’clock Monday morning.”

  “All rise!” the bailiff intoned.

  The lawyers, Claymore, jurors and spectators all stood. The judge rose with her customary dignity and left the courtroom. Andi and Alex started gathering up the papers in front of them. Claymore was standing with them, looking embarrassed. He wanted to ask them what his chances were, now that the prosecution’s case was nearly over. The truth of the matter was that there had been no surprises and Alex had by now had the chance to study the juror’s faces.

  Throughout the case against him, Claymore had sat there in silence, not even leaning over to Alex when he wanted to tell him something. Alex had warned him against any behavior that might make him seem anxious or concerned. Instead, if he had anything important to say, he was to write it down on a note in front of him. Alex would see him writing and read it without turning his head.

  But now before he was led away back to jail, he wanted to know where things stood.

  “What do you think?” asked Claymore, quietly.

  “How do you mean?” replied Alex, not really anxious to answer the question that he understood only too well.

  “What are my chances?”

  Alex didn’t look at his client as he put the last of his papers into his attaché case. He still believed in his client, but he had a duty to be candid and honest.

  “I won’t bullshit you Elias. We’ve got an uphill struggle ahead of us.”

  Friday, 21 August 2009 – 22:15

  “Mm, that feels good,” said Andi as Gene’s hands moved up and down, her thumbs squeezing Andi’s shoulders and upper back.

  The room was dimly lit. Andi was lying on the bed in her underwear, while Gene gave her an intense yet soothing and relaxing massage. When Gene had turned up unannounced at Andi’s hotel room, a beaming smile had lit up Andi’s face. But now as she recalled the week’s events, the stress and strain of the trial began to take its toll.

  “And the judge isn’t going to do anything about it unless we can prove that there was deliberate tampering,” Andi continued. “But the thing I’m worried about is that we just find some accidental glitch in the software that’s reducing the number of African-Americans on jury panels.”

  By tacit agreement, Andi and Gene had suspended their rule against talking about the case together, although Gene was still prevented by an injunction from any contact with Bethel.

  “But at least that’ll help in the future,” Gene comforted.

  “Yes but it won’t help in this case.”

  “You shouldn’t lose any sleep over it. Claymore isn’t exactly the most deserving client.”

  “But he is the client and I’ve got a duty to do my best for him.”

  “Then do your best. But don’t beat yourself up over it if the judge doesn’t accept your arguments. You’ve done your best by presenting the arguments. The rest is out of your hands.”

  “It’s just that I can’t help feeling that this is some sort of a test of my integrity.”

  Gene’s hands stopped working Andi’s shoulder muscles.

  “You’re not on trial Andi. Elias Claymore is. The only duty that you and Alex Sedaka have to Claymore is to give him the best of professional services.”

  “But how can I be sure that I am giving my best?”

  “Judging the by the TV coverage of the trial, I’d say you’re going above and beyond the call of duty.”

  “Then how come I feel this case slipping away from us?”

  “Maybe that’s because the outcome of the case isn’t in your hands.”

  Andi turned her head slightly.

  “How do you mean?”

  Gene’s voice became surprisingly gentle.

  “Has it occurred to you he might be guilty?”

  “It occurred to me. But I think – I know as a lawyer I should be thinking with my head, no my heart – but I think that he’s innocent.”

  “Are you sure that isn’t just what you want to think? The evil man redeemed by repentance? Good ol’ Christian forgiveness and the fairy story ends with ‘they all lived happily ever after.’?”

  Gene was about to start massaging again. But Andi swung round into a sitting position, her feet touching the carpet. She looked lost in thought.

  “Are you coming to bed now?” asked Gene.

  “Not yet. I forgot to check my E-mail today.”

  And with this, Andi stood up and went over to the desk. She switched on her laptop and logged on to the office network at Levine and Webster to download her E-mail. There was only one message, but when she saw it, she felt that claw of fear and anger ripping at her insides. The screen contained the following message.

  You are still helping that slimy nigger rapist. By helping him you are stabbing your sisters in the back and your blood will be upon your own hands!

  Lannosea

  The first thing Andi felt was a jolt of anger. But as she thought about the message, she remembered that she had never really made any effort to find out who this Lannosea was. Whatever the cause of the anger of this “Lannosea”, it must have a background. She knew that Lannosea was the name of one of the daughters of the ancient English queen Boudicca. But why would anyone choose such a name?

  Determined to find out more. she typed in Boudicca and looked up the wikipedia entry. It didn’t give the names of Boudicca’s daughters but it stated that when their father Prasutagus – a vassal of Rome – died, the roman’s seized his kingdom, flogged Boudicca and raped her daughters.

  Raped her daughters?

  So that was it!. “Lannosea” was a rape victim. – maybe even one of Claymore’s former victims!

  All of a sudden things were different. Andi realized that she was not being taunted by some evil creature motivated by hatred, but rather by a victim who was motivated by anger.

  And she couldn’t hate a victim.

  She tried to tell herself that she was only doing her duty. Once she took on the case, she had to give it all her professional skill. But that sounded like the pathetic excuse of every other pragmatist who ever sold his conscience down the river for a quick buck or an easy life. She knew now that she had been rationalizing when she justified taking the case. She had become like one of those people whom she despised – a mercenary, devoid of conscience.

  As this ugly realization swept over her, she broke down in tears, her face resting her on her arms and her arms on the desk, her whole body shaking from the violent sobbing.

  Saturday, 22 August 2009 – 09:00

  It was Saturday morning, and David Sedaka was in his apartment in Berkeley, studying the decompiled jury selection program. He didn’t yet have the source code – LegalSoft had at least until Tuesday to produce it and even then would probably appeal. So all he had to work with in the meantime, was the decompiled source code, without any programmer comments an
d with hopelessly counter-intuitive names for the variables and arrays.

  Still, now that his working week was over, and he was relaxed and in his own home, he was able to give it his undivided attention The trouble with most modern “Object oriented” computer programming is that it doesn’t really have a beginning, a middle and an end. It jumps around and branches off in all directions. But it does have a so-called “main object” which is the control center of all this branching. So if he wanted to debug the program it made sense to start off by looking at its “Main” object and see where these branches led.

  It was at the Main object that David was staring now, as he tried to figure out how it held the other parts together. To make it clearer he started drawing a flow chart, showing how the parts connected and branched. In effect he was reverse-engineering the way in which the program was created in the first place.

  It was then he noticed a small discrepancy. He chased it up by looking at how the program handled duplicates – that is names that were in both the voting register list and the Department of Motor Vehicles list.

  And that was when he realized!

  Saturday, 22 August 2009 – 09:20

  “Just ignore it,” said Martine.

  Alex had been about to reach for the phone when Martine spoke.

  He had invited her for Friday evening dinner and she had stayed the night, entranced by his home-made, gefilte fish, chicken soup with kneidelech and chicken schnitzel with potato kugel. His mother had taught him to cook, but it was from Melody that he had learned that sometimes the way to a woman’s heart was through her stomach. He hoped that the ghost of Melody had been smiling down on him last night, as he availed himself of this knowledge to take the first delicate steps towards moving on from the pain of the past.

  “It could be important.”

  “Isn’t it supposed to be the Sabbath?” she asked with a girlish grin, as he reached for the phone

  “Don’t be cheeky,” he said, picking up the phone with one hand and smacking her bottom playfully but firmly with the other.

  “Hallo,” said Alex, his greeting almost masked by Martine’s squeal of pain, or delight.