Authors: David Kessler
He reached for the phone to call his father.
“However, I am not convinced by the arguments of counsel for the defense that the facts when taken as a whole amount to a violation of the defendant’s constitutional rights.”
They were in the judge’s chambers on Wednesday morning. Justice Ellen Wagner had heard the defense’s factual submissions about the software, which the prosecution did not challenge and had then retired for an hour to consider her judgment. Neither side wanted to present any more legal arguments, because they both felt they had covered that ground already.
When the lawyers trooped back into her chambers at the end of that hour, Justice Wagner looked solemn. But neither side had any inkling of which way her judgment would go. Now she was delivering her judgment, a devastating blow to the defense with the court stenographer present to record the decision.
“I accept, in the light of the defense’s uncontested claims of fact, that the jury-selection software has indeed been tampered with and that it is a strong possibility that this tampering was done with the express intention of reducing the likelihood of African-Americans and possibly other ethnic minorities from being selected for jury service.
“However, a strong possibility falls short of a
probability
, let alone a certainty. It is quite possible that the person or person’s who tampered with the software did so for reasons entirely unrelated to racial discrimination. They may, for example, have thought that they were
improving
the software in some way. In this regard I would note that the defense has failed to offer any evidence of fact that the modification of the software was done by someone
outside
of the company that developed the software in the first place. It is still within the bounds of possibility that the modification was done by some one within
LegalSoft
and that there is another more recent version of the source code within the company archives, that has been inadvertently overlooked.
“Furthermore, even if the modification was done by some one outside the company, and even if it was done for the explicit purpose of causing racial discrimination in the composition of jury panels, that would only be the motive of the malicious party who
modified
the software. That does not mean, however, that such was the intention of the Court Service or the government in
using
the maliciously modified software. Inasmuch as the test to be applied is intention-based and inasmuch as the Court Service appears to have used the software in good faith, I cannot see that this constitutes a sixth or fourteenth Amendment violation.
“I should also point out that in the case in Kent County, Michigan, cited by the defense – where there was an entirely
different
but also
accidental
glitch in the software that had a deleterious effect on the ethnic diversity of juries – they did
not
at the time select their juries from anything other than the voting register. Indeed they did not start using driver’s registration and state income tax records for jury selection in parallel with voter registration until the year 2007. Thus, it can be seen, there is in fact no constitutional requirement that any source of data other than voter registration be used for jury selection. As Mr. Sinclair has noted, the right to vote exists for all, even if some fail to avail themselves of it. And whilst I am persuaded by Mr. Sedaka that the effect of that choice, upon third parties such as the accused, is of
some
relevance, I am
not
, convinced that the
magnitude
of such effect is sufficient to find in favor of the defense in the present case.
“I would note, in this regard, that under-representation of African-Americans in the voting register is probably less prevalent now than it used to be at any time in the past, and almost certainly less prevalent in this state than in many other states.
“Finally, I would note that my reasons for this decision are cumulative and that it is for all of these reasons, taken
as a whole
, that I am minded to come to this decision.”
Oh very clever,
thought Alex. Make it a mixture of law and fact to avoid giving the defense an opening to apply for an interim appeal.
“Accordingly,” the judge continued, “the defense motion for dismissal of the charges is denied.”
For a few seconds, nobody said a word. However, there was a subtle difference in how the parties took the ruling. While Sarah Jensen looked smug, Nick Sinclair looked decidedly uncomfortable. And while Alex remained calm, Andi gritted her teeth angrily.
“There’s nothing more we can do about it at this stage.”
Alex, Andi and Claymore were on the same floor as the courtroom, in a room reserved for meetings between lawyers and their clients. They were trying to explain the judge’s ruling, with Alex taking the lead. But it was rather hard, if only because the judge’s rulings had been so unexpected. But then again, perhaps it shouldn’t have been.
“Why is she so hostile?” asked Claymore.
“She wants to prove she’s color blind,” said Alex.
“That’s bullshit!” Andi cut in. “She doesn’t have to prove Jack shit – and she
knows
it!”
“Then what’s
your
theory?”
“It’s ‘cause she doesn’t want to take the fall when the shit hits the fan. She’s probably hoping the prosecution screws up some other way.”
“Why?” asked Claymore, confused.
“’Cause that way they’ll be no appeal.”
“So wait a minute… you
can
appeal?”
“Yes, but not an interim appeal. We have to wait for the verdict.”
“And if I’m found guilty and we
do
appeal?”
“Then it’ll go all the way to the Supreme court and when it does, they’re gonna have to reopen thousands of cases. That’s what Justice Wagner’s afraid of.”
“What I mean is… what are my chances… on appeal
There was no disguising the fear in Claymore’s eyes. Andi let Alex reply.
“The Supreme Court is quite conservative. They’ll resist it. But if we can create enough of a stick, we’ll have a whole lot of other law firms joining us. It could produce a groundswell that’ll seriously rock the boat. That’s what Andi meant about the judge hoping the prosecution screws up. If she can find some
other
grounds to dismiss – nothing to do with jury selection – then my guess is she’ll take the bait. If not… it’ll go to the jury.”
“And what are my chances with them?”
Alex shook his head.
“I gave up trying to second-guess juries a long time ago.”
He looked at Andi.
“Which leads to the next question: to take the stand… or
not
to take the stand.”
“I want to testify.”
Alex was shaking his head.
“That may not be a good idea.”
“I don’t have a choice. I need to show them I’m human.”
“It could backfire.”
“If I don’t do it, I’m burned. Look… they’ve seen the girl… and they feel sorry for her. Hell,
I
feel sorry for her! She could be their daughter. I need to show them I’m human too.”
Alex looked at Andi, appealing to her to explain.
“It’s not as simple as that. Let’s say Sarah Jensen gets to cross-examine you.”
“I can handle Sarah Jensen. I’ve been doing public speaking for half my life. I know how to put a good case.”
“That’s what I’m talking about. You say you can ‘handle’ her. But what does that mean? If you get the better of her, all the jury’s gonna see is a strong man getting the better of a weak woman. Well that’s exactly what rape
is
.”
“And if she gets the better of me…”
He let it hang in the air. Andi picked it up.
“Then you end up looking like a liar who’s been trapped by some one smarter than himself.”
“But if I don’t take the stand it’ll look like I’m running scarred.”
“The judge will direct the jury that they’re not allowed to infer guilt from your silence. He has to.”
“And the jury’ll ignore it as soon as they start deliberating
–
if not before that.”
Andi spoke up.
“For what it’s worth, my opinion is that you
must
testify.”
Alex gave Andi a hard stare. This wasn’t part of the script.
“Wait, let’s not get carried away here Andi. We do have other options.”
“Like what?” asked Claymore.
“Like attacking the prosecution case.”
“I thought you said it was strong.”
“But it
does
have weaknesses.”
“Like what?”
“Like the fact that Beth’s account was implausible.”
“That’s not the way I saw it. I looked at the jury, man – they
sympathized
with her.”
“Sympathized, yes, But that doesn’t mean they bought it.”
“What, they don’t think she was raped.”
“Raped, yes – because she’s got medical evidence to back that up.But the way she changed her story about the attackers age is something they still can’t quite swallow.”
“But what about the DNA?”
Alex and Andi looked at each other: Andi to inquire, Alex to warn her off. Now was not the time to get Claymore’s hopes up about a possible line of attack against the DNA. Besides it might all come to nothing.
“We’re working on it,” said Alex diplomatically. “We’ve already established that it’s not as strong as they tried to make out. Y-chromosomal DNA is good for narrowing down the investigation, but it’s useful for identifying a single guilty person.”
Claymore was looking at Andi.
“Do
you
think I’m guilty?”
She squirmed with embarrassment. Alex looked like he wanted to intervene on her behalf, but held back. It was obvious that Claymore wanted an answer and wouldn’t accept any evasion.
“I’m a lawyer Mr Claymore… and lawyers don’t act on their personal feelings. They act on their professional skills. You were accused of a serious crime and it’s my duty to help Alex give you the best defense. I can’t say if you’re innocent or guilty. But sometimes the greatest test of courage is standing up to the enemy within. My duty is to put aside any feelings I might have and fight this case to the best of my ability.”
“Then let me ask you another question,” Miss Phoenix. “You said she’s too young to remember the seventies or eighties. Do
you
remember me from then?”
There was a hesitant silence.
“Why do you ask?”
“I want to know how much prejudice there is against me in that jury of thirtysomethings that Alex empanelled
–
with your help.”
“I was only fourteen when you were arrested for the rapes in 1984. I remember reading about the case. But I was more into parties and dating at that age. I wasn’t exactly civic-minded or politically precocious. But even if they didn’t read about it then, they would almost certainly have read about it now, when this case broke.”
“I… I want you to know something Miss Phoenix… I’m
not
proud of what I did. But remember that I came back to the United States to serve out my sentence when I saw that all those middle-eastern countries weren’t exactly heaven on Earth for the black man.”
“That may be. But there are some people who think that you should have been sentenced to life for the what you did. Raping six women isn’t something that middle-America forgives easily
–
even if you did become a born-again Christian afterwards.”
“Eight,” Claymore’s choked-off voice came back at him.
When Alex met Claymore’s eyes he noticed a couple of tears forming in the corners.
“What?
Claymore took a deep breath and the tears start to roll down his cheeks as he spoke.
“I raped a total of eight women. Six of them came forward and testified against me.”
Alex stared at his client in stony silence for a few seconds and said: “I stand corrected.”
The tears were flowing more freely from Claymore now.
Look...” Claymore began, in a tone that seemed to be almost pleading. “I can’t expect forgiveness for my past. I know that I caused pain to other people – and the pain and suffering that my brothers and sisters went through was no excuse for what I did to others. But I’ve paid the price for it in more ways than one. Since I came back to America to serve out my sentence I haven’t been able to touch a woman. In a way I’m still in prison.”
A cynical smile graced Alex’s face as he watched Claymore dry his eyes with the back of his hand.
“If you can do that again in court, we’re home and dry.”
“Why don’t you just come clean and tell us the truth. You know we’re going to get you when the DNA results come through?”
Detective Bridget Riley had already had quite a tiring morning. Starting early, she had driven to LAX from Ventura then flown to San Francisco International and finally driven to Oakland in a rented car, getting caught up in the morning logjam on the Bay Bridge.
Now she and Detective Nadis of the Special Victims Unit at the police station in the Frank H Ogawa Plaza were questioning Louis Manning in his hospital bed at the Alta Bates Medical Center. They would have preferred to haul him in, but his leg was still in traction and would be for several weeks. He was, however, under arrest and able to talk. So they read him his Miranda rights and started questioning him. The only trouble was, he wasn’t talking. He had waived his right to an attorney, but that was just about all he waived.
“If you’re so sure of that, why do you
need
me to confess? Besides, I could be lying if I
do
confess.”
Manning smiled smugly. Nadis leaned over him and spoke quietly.
“Maybe, but DNA doesn’t lie.”
“You haven’t got the DNA results yet.”
“But we will,” said Nadis, leaning over Manning aggressively. Bridget put a hand on the detective’s shoulder and eased him back. She didn’t want him doing anything that might undermine their case, if the DNA
did
prove positive.
A part of her felt sorry for Manning. He never had a chance. He didn’t even know who his parents were. To him a parent was an indifferent social worker who changed every few months. But other people get over that sort of thing. Not everyone who goes through social services comes out a criminal at the other end.