No Way Out. David Kessler
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Jensen rose, sweeping a strand of her black hair out of her eyes. She paused for a moment, as if trying to assess the judge’s current state of mind. This was a tricky matter, and one so sensitive that the entire outcome of the trial could hinge upon it. What happened here today could render everything that followed largely irrelevant. So the A.D.A. had to pitch it just right.
‘My only argument is what I said in response to the defense counsel’s earlier argument, namely that the voir dire should be sufficient to weed out any prejudiced jurors, as long as the panel is large enough. However, I would also point out that defense counsel appears to be trying to relocate the trial to a venue with more favorable demographics.’
‘Are you suggesting that the demographics of Sacramento are likely to be pro defense?’ the judge prompted.
‘Not necessarily. But it does have a higher percentage of bla—of Mr Claymore’s own ethnic group.’
Alex knew that the A.D.A. had to choose her words carefully. She wanted to accuse the defense of trying to get more blacks onto the jury, but by opposing it, she was effectively saying that prosecution wanted the opposite.
‘But there’s nothing constitutionally improper about the demography of Sacramento is there?’
The judge was smiling as he said this. Sarah Jensen’s embarrassment was palpable.
‘I…we…that is, the prosecution accepts that there is a case for a change of venue. And obviously it should be away from the south and possibly in the Bay area. But Sacramento would not be the best choice.’
Alex saw his opportunity and pounced. ‘If the A.D.A. is concerned about the demographics of Sacramento, the defense is quite amenable to a county where the demography is more to their liking, like Santa Clara.’
Sarah Jensen blushed. They both had the stats in front of them and Sarah knew that while Santa Clara County – Silicon Valley – was 2.7 per cent black and 62 per cent white, many of those white people were working in the computer industry, where there was a high proportion of liberals and libertarians, unlike the traditional conservatives of Simi Valley in Ventura. But Sarah Jensen could hardly use this in her argument.
‘We would prefer San Mateo or Marin County – or even Napa.’
‘What do you say, Mr Sedaka?’ asked the judge.
Alex knew that he had succeeded in the first part of his objective: getting the A.D.A. and the judge to accept relocation to the Bay area. Now he had to get the judge to choose the county he wanted. That meant making it look as if he wanted somewhere else.
‘Your Honor, we believe that many of the people who are most prejudiced against my client are actually those who the prosecution seems to think are biased in his favor.’
‘Does that mean you agree to Ms Jensen’s suggestions?’
‘Well we’d prefer San Joaquin or Solano. Maybe Contra Costa.’
‘What about Alameda?’ asked the judge. Sarah Jensen looked as if she was about to say something, when Alex spoke up quickly.
‘Sidebar, Your Honor?’
The judge nodded. Alex and Sarah approached the bench.
‘Your Honor,’ Alex said putting on his most embarrassed tone of voice. ‘Alameda County is 20 per cent Asian. It’s a well-known fact that a lot of Asians are prejudiced against blacks and this would deny my client a fair trial.’
‘Oh, do me a favor!’ said Sarah. ‘There may be some limited residual prejudice against working class blacks. But Claymore is hardly working class. Besides, Mr Sedaka can use the voir dire to weed out any biased jurors.’
The judge turned back to Alex. ‘That makes sense doesn’t it?’
Alex fought hard to maintain a neutral face and shrugged his shoulders. ‘That depends on how reasonable the judge is when it comes to accepting challenges for cause.’
‘Well I have to assume that another judge will be reasonable,’ said the judge. ‘And if you think he abused his discretion you can always appeal.’
Alex used the full range of his acting skills to look like a man who was trapped.
‘There’s also the problem of transportation. My office is in San Francisco and that means I’ll have to cross the Bay Bridge during commuter times.’
‘Yet you were ready for San Joaquin or Contra Costa,’ said the judge, sarcastically.
‘Those were second choices,’ said Alex feebly. ‘I still think a Sacramento or Santa Clara jury would be more likely to approach this case with open minds.’
‘Well you can file an exception for the record. In the meantime it’s decided. The trial will be transferred to Alameda County.’
As they returned to their places, Alex continued his struggle to suppress a smile that was just itching to appear on his face.
‘So what’s this weakness you’ve found in their case?’ asked Claymore.
They were in a meeting room at the Ventura County pre-trial detention facility, where Elias Claymore was being held. Alex was taking the lead this time, while Andi sat in almost total silence.
‘She changed her story…about the attacker’s age.’
‘How do you mean?’
‘Well, initially she told the police that her attacker was in his twenties. They did a photo line-up – they even had a suspect tucked in there with the pictures – but she didn’t choose him.’
‘I don’t understand. When they said she picked me from a photograph, I thought that meant she picked me from a book of mug shots.’
‘No, they don’t do that anymore. They discovered a long time ago that after looking at hundreds of pictures, the witness’s vision becomes so blurred, they can’t tell a stranger from their own mother. It actually led to erroneous arrests in the past and also let guilty people slip through the net. They sometimes use an artist’s impression or e-fit picture when they’re planning on asking the public to help find an unknown suspect.
‘But in this case they used mug shots as a cheap alternative to a line-up as they already had a suspect. It’s called a “photo line-up.” Instead of hauling a suspect in and risking a civil rights suit, they use photographs of suspects mixed in with pictures of law-abiding citizens that match the description. In fact they can even use out of date pictures. As long as the picture of the suspect is up-to-date and as long as the faces in all the pictures matched the description of the suspect given by the witness, then the identification is valid.’
‘But can they do that without my knowledge? Without an attorney present?’
‘Sure can. US versus Ash, 1973. But we can challenge it before the jury.’
‘But if she told them I was in my twenties, then what picture of me did they put in there? As I am now or when I was in my twenties?’
‘When you were in your twenties.’
Claymore looked confused.
‘Doesn’t that invalidate the whole thing?’
‘No, you don’t understand, Elias. She didn’t pick anyone.’
‘So what was all that bullshit about her picking me from a photograph?’
‘That was later. After lunch she went back and told them that she’d had second thoughts and that the man who attacked her was older than his twenties.’
‘But I’m fifty-eight. How’d she get from twenties to fifty-eight?’
‘Good