No Way Out

by David Kessler

  “They’re probably crossing the Bay Bridge. I know Nick Sinclair lives in San Francisco and I think Sarah Jensen may be staying there. She’s been driving in with him.”

  “Well, if I don’t manage to get through to them, you’d better tell them.”

  “But surely it doesn’t make any difference if the results are the same.”

  “Well that’s just it. You see there are some additional results.”

  “What do you mean ‘additional’?” Bridget replied.

  “We had one more nail sample – a third sample… from the other hand.”

  “But how does that help? You said the computer guy managed to recover the original evidence sample file from the second test. Why would a third sample make any difference?”

  “ ‘Cause this time we ran a mitochondrial DNA test on it.”

  “And you’ve got the result?”

  She could hardly contain her excitement.

  “That’s what I’ve been trying to tell you. It excludes Claymore but nearly matches Louis Manning.”

  “Nearly matches? What does that mean, like a sibling? A cousin?”

  “Hold your horses lady! Let me explain. Okay you know that siblings and cousins who are related by the maternal line have identical mitochondrial DNA sequences in these regions.”

  “I know that.”

  “But two maternally unrelated people have about ten differences on average.”

  “Yes but you said it nearly matches – what does that mean?”

  “Well if the samples differ in two or more places they’re not related. If the samples are identical, then it means they’re related. And if there’s a difference at only one location, then it’s inconclusive.”

  “And is that what we’ve got in this case? One difference?”

  “No that’s the funny thing. What we’ve got in this case is two differences.”

  “But you said that counts as an exclusion.”

  “Well officially yes. But it’s actually quite surprising too find a difference of only two. Like I said, normally if they’re unrelated you’d expect to find about ten differences.”

  “So what the heck does it mean?”

  “Well there is one complicating factor that we always have to consider.”

  “Surprise me,” said Bridget, realizing that Alvarez was enjoying this game of I-know-something that-you-don’t-know.

  “Mutation.”

  “Mutation?”

  “Mitochondrial DNA mutates as the cells grow and divide.”

  “Yes I know what mutation is but what’s the bottom line? Are you saying it could be from Manning – and the two differences are due to mutation?”

  “I wish it were that simple Bridget. The problem is that we can tell which sample is the mutated one and which is the one from before the mutation.”

  “You can tell?”

  “Yes.”

  “So what’s the problem? I mean that’s good isn’t it? It be more of a problem if we couldn’t tell?”

  “The problem is that the mutation is in the evidence sample, not Manning’s reference sample.”

  “So?”

  “You don’t get it do you? Okay let me spell it out to you. The evidence sample is older than the reference sample that we just took from Manning. But that means that older DNA has a mutation and the newer reference sample doesn’t have it.”

  “But that makes no sense,” said Bridget. “Can mitochondrial DNA unmutate?”

  “Of course not! That’s the problem!”

  Wednesday, 2 September 2009 – 10:05

  “I want to know why you subpoenaed her?”

  Alex and Andi were on their way into the judge’s chambers, hanging back and keeping their distance from Sarah Jensen and Nick Sinclair.

  “Not this time Alex. You twisted my arm enough before, now you’re going to have to defer to my judgment and trust me.”

  “At least tell me what she’s going to say.”

  “I don’t know yet.”

  “Well tell me what you’re calling her to say… what you’re hoping she’ll say.”

  “That’s another way of asking the same question.”

  “I could decide not to let you call her. I’m still lead counsel in this case.”

  “Then you’ll be blowing our best chance to clear our client.” She stopped, forcing him to do likewise and looked him in the eyes. “Your call Alex.”

  Alex Sedaka looked at Andi Phoenix and saw a different woman to the one he had been working with these past few weeks. Here was a woman who was poised and self-assured. There was no trace of fear in her eyes this time, nor even a trace of doubt. This was a woman who knew that she was standing on rock-solid ground.

  But it was the word our that tipped the scales. She had said “out best chance” and “our client.” That meant she was fully committed to the cause.

  Alex shrugged his shoulders and smiled, a silent acknowledgement that she was in the ascendancy and a tacit sign of consent to her request.

  The judge was already waiting for them in her chambers. They sat down in front of her, looking at Sarah and Sinclair, who looked uncomfortable.

  “This in camera hearing is now in session,” said Justice Wagner. “All right, now I assume Mr. Sedaka that you have now had time to read the arrest report and record of Louis Manning.”

  “Yes Your Honor.”

  He had read it through from start to finish, amazed at what it revealed. Not only did Louis Manning look like Bethel’s original description and the FaceID image of the of the rapist, but he was also caught driving Claymore’s stolen car – thus proving what Claymore had said all along about his car being stolen. But the question Alex asked himself was how could he introduce it, without also introducing the results of the new tests that tended to incriminate Claymore too?

  “And have you decided whether you wish to go for a mistrial without prejudice or to proceed with the case.”

  “We’d like to proceed, Your Honor.”

  Ellen Wagner turned to the Sarah Jensen and Nick Sinclair.

  “And the People?”

  Nick shrugged his shoulders. Sarah spoke.

  “We’re only prepared to proceed if we can make the results of the new tests available.”

  The judge turned to Alex.

  “Any decision on that Mr Sedaka?”

  “Not yet Your Honor.” The judge looked surprised. “We don’t yet know if we need to. Until we know, we can hardly be expected to decide.”

  “But the prosecution has to decide whether they want a mistrial or to go on. How can they decide on their position if they don’t know your decision on this point?”

  “I can understand their dilemma, but as a matter of law we have the right to decide whether or not to use a particular piece of admissible evidence at any time during our presentation of our case. Disclosure applies to what might be submitted in evidence, not what will be. Even the prosecution’s disclosure doesn’t oblige them to call a witness of present any particular evidence. The prosecution knows that this evidence exists and is admissible. That means it might be presented by the defense. We’re not obliged to notify them ahead of time what we intend to do, only what we may do. They’ll have to make their decision on that basis.”

  “And when will you know if you’re going to introduce the test results?”

  Alex looked at Andi, inquiringly. She spoke.

  “After we’ve called our next witness: Eugenia Vance.”

  “Your Honor that’s another matter that I wanted to talk about,” said Sarah. “We were given no prior notice of this witness until after she was issued with an emergency subpoena.”

  The judge looked hard at Andi.

  “Yes she has a point there doesn’t she Miss Phoenix? You obtained this emergency subpoena via the Ventura County Superior Court, bypassing normal procedure and protocol.”

  “Your Honor, I know that it’s customary to obtain a subpoena from the trial court, but in this case, time was of the essence. I k
new that the witness might be reluctant to come so that meant we’d have to give at least the statutory five days notice or she’d file for a postponement. And we didn’t want any more delays in the proceedings. The case was due to resume on Monday and it was late at night last Wednesday when we realized that this witness had relevant testimony. I was in Ventura County at the time, as was the witness. Therefore I resorted to the expedient of obtaining the emergency subpoena from the Ventura court for Your Honor’s subsequent approval.”

  “And what exactly is this relevant testimony that this witness is expected to give,” asked the judge.

  “Well we don’t actually know that she will give it Your Honor. We were also planning on asking the Court for permission to treat Ms Vance as hostile.”

  “It gets better and better,” Sarah muttered under her breath, almost breaking into laughter.

  “Okay, well let’s assume for a moment,” said the judge, “that she does give the evidence that you’re hoping for. What evidence is that?”

  “We believe that Ms Vance has been in contact with Bethel Newton, in violation of her promise not to do so. We think that she may have been influencing Miss Newton’s testimony.”

  “Great!” said Sarah slapping her thigh. “If that’s the case the Court should grant a mistrial without prejudice and Ms Phoenix should step aside on grounds of a conflict of interest. In fact, as far as I’m concerned, she should also have to step aside over these pending charges of hacking into the DNA database.”

  Andi looked round at Sarah and spoke quietly, whilst technically still addressing the judge.

  “I may yet have to step aside. But I think it’s in everyone’s interests that this case be expedited. It’s already dragged on longer than expected and we’re running up to the end of the slot in the docket that this case was assigned to.”

  The judge spoke, to regain Andi’s undivided attention.

  “Miss Phoenix, is there any particular reason why you believe that Miss Vance has been influencing Miss Newton?”

  “Yes Your Honor, but I’d rather not state it just yet. Let’s just say that Ms Vance was… observed talking with Miss Newton by… another person….”

  “If so, she would be in contempt of court.”

  “I know Your Honor.”

  “And you want to ask her this in direct examination?”

  “Yes Your Honor.”

  “And to do so effectively you need to be able to treat the witness as hostile.”

  “Yes Your Honor.”

  “And you believe that if the Court gives you permission to do this, you can expedite the outcome of this case one way or the other.”

  “Yes Your Honor.”

  Ellen Wagner looked at Sarah, expecting further objections. But this time Sarah remained silent and offered a slight shrug.

  “I think that I’m going to allow this witness to be called and allow the defense to treat the witness as hostile.”

  Wednesday, 2 September 2009 – 10:35

  They ought to have been enemies, but a bond of sorts was developing between Louis Manning and one of the cops who was guarding him. Maybe it was because this particular cop was going through a rough divorce and hadn’t quite managed to reign in his subconscious misogyny. Maybe it was just because they were thrown together and sharing a set of common experiences borne of mere proximity.

  But for whatever the reason, the bond was there. That was why the cop had been only too happy to bring Manning a cup of coffee from the vending machine in the corridor, when he had asked for one, and also to bring one for himself. However Manning remained handcuffs in accordance with Police Department rules. Fortunately this didn’t prevent Manning from drinking coffee with his free hand. So he and the cop sat before the TV, their coffee cups in hand.

  “Can you turn it louder?” said Manning.

  They were watching Court TV and were avidly following the Elias Claymore trial. For the last half hour, they had been treated to a long session of analysis by various lawyers and other experts, including a former prosecutor a current defense lawyer and a jury psychologist. Now there were murmurings and a flurry of activity and signs that the court was about to reconvene.

  Suddenly Louis Manning clutched his chest and started coughing.

  “What’s the matter?” asked the cop.”

  “Ha… ha… heart.”

  The cop understood immediately and, putting his coffee cup down on the bedside cabinet, went running from the room to summon a nurse or a doctor. As soon as he was out of the room Manning went to work, getting the sleeping pills out of the bedside cabinet and dropping them into the cop’s coffee cup. He saw no need to stir it, as the heat of the coffee would surely dissolve them well enough. Then he went back to feigning the coughing.

  The cop came back into the room with a nurse. He increased the time spacing between coughs, giving the impression of bringing it under control and then spoke to the nurse.

  “Sorry, the coffee went down the wrong way.”

  The nurse looked at the cop irritably. He shrugged sheepishly.

  “I thought you said it was your heart?” said the cop.

  “Sorry. I thought it was. I’m sorry. I didn’t mean to start a panic.”

  The nurse gave him a quick check and then left. The cop settled back into his chair with his coffee, keeping his eyes on the TV. But his mood had turned decidedly colder.

  Wednesday, 2 September 2009 – 10:45

  When the Court convened and the judge was seated, Andi rose confidently.

  “Your Honor the defense calls Gene Vance.”

  The bailiff opened the door to the witness room.

  “Call Gene Vance!”

  There was a tense moment as Andi held her breath, wondering if Gene was going to appear. Andi had not had any contact with her for a week and wasn’t sure if she would even turn up. She had hoped that Gene would call her and make the first move towards making peace. But she realized that Gene was probably thinking the same thing. Besides, how could they make peace between them when this was still hanging over them?

  And how could Andi let it go when she still had a client whom she was sworn to serve according to her highest professional standards?

  After what seemed like about half a minute, Gene emerged from the witness room into the courtroom. A few steps into the room she stopped and looked nervously at Andi. There was no anger now, nor even a trace of resentment; just a look of self-pity, and the residual trace of confusion. The bailiff took a step towards her and guided her to the witness stand.

  The Clerk established with a quick question that she was an atheist and gave her the card to affirm.

  “I do solemnly affirm that the evidence I give the court shall be the truth, the whole truth and nothing but the truth.”

  The clerk sat down, leaving Gene to face the penetrating stare of the woman who had once been her lover.

  “You are Eugenia Vance?” asked Andi.

  “Yes.”

  She asked Gene to state her address for the record. It sounded silly, asking her to state the address, which they still technically shared. But it was part of the formality of trial proceedings and she had to do it.

  “Miss Vance I won’t waste any time here. I’ll come right to the point. You work at the Say no to Violence Rape Crisis Center in Los Angeles, is that correct?”

  “Yes.”

  “And in that capacity did you have occasion to meet a young lady by the name of Bethel Newton?”

  “Yes.”

  “And were you on June twelfth served with an injunction to refrain from any contact with Bethel Newton?”

  Sarah Jensen was poised to stand up and object if Andi crossed the line. But she sensed that something was going down and she wanted to hear the rest. Gene said nothing. Andi continued.

  “We have already heard from Bethel Newton how she initially thought the rapist was a young man in his twenties and then changed her mind and said it was a man in his fifties. Did you have anything to do with this?”


  “What do you mean?”

  Gene was clearly nervous. She knew what was happening; they both did.

  “Did you put her up to it?”

  Justice Wagner stepped in.

  “Miss Vance, you do not have to answer that question, as it may incriminate you on charges of contempt of court and obstructing justice.”

  “But you can answer if you want,” added Andi, giving her lover the hard stare. “Did you put her up to it?”

  “Why would I do that?”

  Her voice was trembling now. The roles had now reversed completely. She was the weak one and Andi had finally done the thing Gene always feared: seize control.

  “Is it not a fact that twenty seven years ago, Elias Claymore raped you?”

  The courtroom was filled by a huge collective gasp.

  “Elias Claymore raped white women.”

  “But before that, he raped three black women to ‘practice’ his technique – as he described it in his autobiography. And you were one of them, weren’t you Gene? You were the first. But unlike most of the other victims, you never reported it.”

  Sitting between Andi and Alex, Claymore looked nervous – indeed terrified.

  “He never paid the price for what he did.”

  Several jurors leaned forward in their seats. Andi waited for a moment, unsure of how far to go. This was the woman she loved, and she was destroying her… in public.

  “What gave you the idea of framing Elias Claymore, after all these years?”

  Gene choked as she tried to speak, and tears began to roll down her face as she struggled to regain her composure.

  “After Bethel looked at the mug shots in the first photo line-up… and didn’t see the man who raped her… she came back to the Rape Crisis Center to see me. She was crying. I knew what she felt like, because I’d been through it myself. I knew that feeling so well that I couldn’t bear to see it again… So I just rushed up to her and met her halfway across the room. I put a comforting arm around her… just like I did with another frightened little girl many years ago.”

  Again she paused to damn up the flood of tears. Then she took a deep breath and continued.

  “I offered her a set of darts to throw at our ‘poke his eyes out’ dart board. That’s a cork board with pictures of known rapists on it. The caption under the board says; ‘Rapist scum-bags of history.’ It’s basically just a therapeutic tool we use to help rape vict– rape survivors work off their pain.