Authors: David Kessler
“But why
should
I change it? I never even met the bit…”
For a few seconds they all avoided each other’s eyes as they realized what Claymore had been about to say.
“There goes Uncle Tom.”
There was mocking laughter and jeering as Elias Claymore shuffled his way to the end of the table.
“Watch where you’re sitting!” snarled the man next to him, as Claymore barely brushed against him when he sat.
Claymore tried to ignore the taunts. But when he raised the food to his mouth, he felt a sharp elbow in the rib cage, making him drop it. He knew that this was the test. If he showed weakness now, they would make his life a living hell. He had to stand up to the bullies before they saw him as easy prey.
“Look cut it out!” he shouted, leaping to his feet and turning to face his attacker.
The man rose to face Claymore. They were evenly matched for size, but the man was a lot younger and probably a lot fitter.
“You talkin’ to me
Tom!
”
The words were backed up by an open-handed shove.
“Yeah you!” Claymore shot back, shoving the man equally hard.
Then the man took a swing at Claymore. Claymore ducked and dove in under the younger man’s guard, clamping on a side headlock and a hooking his right leg around the younger man’s left leg in a grapevine. The young man took a swing at Claymore with his left fist, which Claymore deflected with his open right. But he couldn’t avoid the younger man’s rabbit punch to the back of his head, a second before he swung the man round and grappled him to the ground.
At that point the whole place erupted into pure chaos as a nervous guard hit the panic button
“So when are you going back to LA?”
Alex was sitting with Juanita in the reception of their San Francisco office on the 15
th
floor of the Embarcadero Center. He had flown back that afternoon, after the consultation with Claymore, and was now briefing his paralegal on the background to the case.
“We’ve got the prelim in twelve days and I’m planning on pushing hard for a change of venue.”
“What are the chances?”
“Well the DA will fight us all the way. It’s Sarah Jensen. I don’t know if you’ve heard of her.”
“I’ve heard of her,” said Juanita. “Ventura County Domestic Violence section. The rumor mill says she’s got her sights set on her boss’s job.”
“And her boss has his sights set on Sacramento.”
“Exactly. Anyway, we already had a fight on our hands about Andromeda Phoenix taking second seat and we won that. But that’s ‘cause she didn’t really have a leg to stand on. That means she’ll be even
more
determined on this one. And she’s got time to do her homework so it’s going to turn ugly.”
“Maybe you should step aside and let it turn into a catfight. Assuming she’s good enough.”
“Oh Andi’s good. But I don’t know if she’s fully
–
”
The phone rang. Juanita picked it up.
“Alex Sedaka’s office… oh hallo, Ms Phoenix… I’ll put you through right away.”
She put the call on hold.
“I could have taken it here,” said Alex.
“I need this phone free for other calls,” said Juanita in her sharpest tone. “This is an office.”
“Okay boss,” he said, with a smile, as he rose from his chair.
Juanita put the call through to his office before he got there, making sure that his phone was ringing by the time he went through the door.
“Hi Andi,” he said into the handset.
“Hi Mr Seda – Alex. Listen, I’ve been working here with the demographic department at my firm and we’ve been trying to figure out which are the best counties to try the case. We’ve come up with a list of counties based on demographic analysis and some public prejudice questionnaires.”
“And which counties are they?”
“Well the best is Alameda. I emailed a file over to you. Take a look at the demography. It has about 300,000 Hispanics to 200,000 African-Americans and half a million white non-Hispanics. It’s also got 350,000 Asians, who may or may not be friendly to Claymore. We’ll have to run some surveys to check that out.”
“Okay. But the 200,000 African-Americans won’t necessarily be too friendly to Claymore.”
“No, but I was thinking about this white liberal issue.”
“What about it?”
“Well, you can cherry pick the liberals at the voir dire.”
“Yes, but whatever cherry picking we try and do, the prosecution will do the opposite.”
“I know that. But it’s a question of how many liberals there are on the panel.”
“Yes, but like you said, Andi, there’s no such thing as a white liberal county.”
“Alameda’s the closest you’ve got. Don’t forget Berkeley right on your doorstep.”
“You could be onto something,” Alex conceded. “The trouble is, the prosecution has ten peremptories too – and they’ill fight us every step of the way.”
“Only if you tip your hand.”
“What’s that supposed to mean?”
“If you make it look like you’re
afraid
of a black jury and
wary of Asians
, they might just go for it themselves. The trick is to let the judge suggest it as a compromise.”
Alex thought about this for a moment.
“Andi, if you were here right now, I think I’d kiss you.”
“...In addition to the unfavorable comments on the talk radio stations, an opinion poll in the area has shown that seventy eight percent of the women and ninety six percent of the men in the district believe my client to be guilty.”
The judge in Court 12 at the Ventura Country Superior Court appeared to be listening attentively to Alex, giving no impression on his stony face of which way he was inclined to go. If he had formed an opinion, his face was not saying.
“Clearly,” Alex continued, “it would be impossible for my client to receive a fair trial in Ventura County under these circumstances. On the other hand there have been no such signs of prejudice in Sacramento.”
Andi was watching Alex as he spoke. Sacramento was eleven percent Black and eighteen percent Hispanic.
“Any addition to your earlier response Ms Jensen?” asked the judge, looking over at the prosecutor. Sarah 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 ADA had to pitch it right…
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 ADA had to chose 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 was going out of its way to prevent that.
“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 DA 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 percent Black and 62 percent white. But 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 DA and the judge to accept relocation to the Bay area. Now he had to get the judge to choose the one 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.
“Side bar Your Honor?”
The judge agreed. Alex and Sarah approached the bench.
“Your Honor,” Alex said putting on his most embarrassed tone of voice. “Alameda county is twenty percent 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 a brother 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 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. And he sounded quite enthusiastic.
“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 had a photo line-up – they even had a suspect tucked in there with the pictures – but she didn’t chose 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 if they already had a suspect. It’s called a “photo-lineup.” Instead of hauling in a suspect and risking a civil rights suit, they use photographs of suspects mixed in with pictures of law-abiding citizens matching 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 question. I think they were skeptical too, although their reports are written in that terse police language that doesn’t make it obvious what they were thinking. You have to read between the lines.”
“But I mean what did she say? Did she just come out with something like ‘he was twice as old as I said at first.’
Alex handed Claymore a copy of the statements. Claymore picked it up and started reading through it as Alex spoke.
“She said she now thought that he was in his fifties. But she explained that the reason for the change of heart was because she actually
saw him
.”
“What do you mean
saw him
?”