No Way Out

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 In fact they can even use out of date pictures.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?”

“I mean saw you. Not in the flesh, but on the TV. She said she was passing an electronics store and she saw you on a TV screen in the display window. It was your show. And that was when she realized — so she said — that it was you.”

“But I mean didn’t they notice the age difference. I mean you said that she said. But didn’t they ask her about it. Didn’t they ask her to explain the discrepancy?”

“They did, but she just said she was mistaken. She claimed that she was under stress. Which is reasonable.”

“But how can stress make her mistake fifties for twenties?”

“That’s the question they don’t seem to have asked. Or if they did, they didn’t receive any answer, as far as I can determine. And that’s the question that we’re going to ask if this case gets to trial.”

“But how come you didn’t notice this before? I thought you were on the ball man.”

“I know, I’m sorry. It looks like I took my eye off the ball. But you have to understand Elias, I was so pre- occupied by the DNA, I only speed-read her statements. Once I went back over them, it practically jumped out at me. But now that I’m onto it, we have an Achilles heel to attack. But they’re still going to keep hammering home the argument about the DNA.”

JULY Wednesday 15 July 2009 — 12:40

“The defendant, Elias Claymore is charged with Rape Under section 261 Part a, paragraph 2 of the California Penal Code. How do you Plead Elias Claymore, Guilty or Not Guilty?”

“Not Guilty”

Claymore sat down, looking around the courtroom nervously. He had been brought here for the arraignment on the Information — the document filed by the prosecution within 15 days of the preliminary hearing, setting out the details and particulars of the charges. They were in Court 11 of the Rene C. Davidson Courthouse on Fallon Street in Oakland, before Justice Roberts the judge who dealt with the Master Criminal Calendar.

Alex remained standing.

“Your Honor at this stage I would like to renew my request for bail in accordance with my written submissions.”

Sarah Jensen — who had hung on to the case for the time being — rose to reply. But the judge stayed her with a raised hand.

“I’ve considered your submissions carefully Mr. Sedaka, but I see no reason to re-open the original decision to deny bail. This is truly an exceptional case in every sense of the word, but I am bound to consider the defendant’s past as an escapee and for this reason I cannot grant bail.”

Alex gritted his teeth. It was particularly hard on Claymore, because he was still being held at the Pre-Trial Detention Facility in Ventura to the Santa Rita Jail in Alameda County. To get to this hearing, he had been driven for six hours — across 375 miles from Ventura — to get here for this ten minute hearing.”

“In that case, Your Honor, I move that the defendant be transferred to the Santa Ritter jail.

The Santa Ritter Jail, in Alameda County had been modernized in 1989 and was now classified as a modern “mega-jail” complete with solar panels for power and a system of robotic carts to move food, laundry and garbage. However, despite this, it was heavily over-crowded and quite a violent place. There had been a number of “shank” stabbings there — several of them fatal. But Claymore was equally vulnerable in Ventura and at least in Santa Ritter he would be close to the trial venue… and close to Alex’s office.

“So ordered. Now, regarding the trial date. Does your client waive the right to a speedy trial?”

“No Your Honor.”

The judge peered down at the papers in front of him. If he had granted bail, Claymore would probably have been more amenable to waive his Sixth Amendment rights. But it was understandable, given that Claymore was to be held in custody, that his lawyer wanted the trial to take place as quickly as possible.

“I see that the Information was filed in Ventura County on the 26th of June. That means the trial must commence by the 25th of August. I also see that there’s a vacant slot on Justice Ellen Wagner’s docket in Court 7 between the August 17th and September 4th. Does that allow enough time for the trial?”

“Yes, Your Honor,” said Alex, nodding.

“Yes, Your Honor,” Sarah Jensen confirmed.

“So I’ll assign the case to that slot. Voir dire to commence on the 17th of August.”

Wednesday 15 July 2009 — 15:15

Later that day, Elias Claymore was looking around uneasily as he was escorted out of the central block where he had been processed to his assigned block. He had survived at the Ventura pre-trial facility, but this was a new and unfamiliar environment and he would have to go through the process of adapting and acclimatizing all over again.

As he shuffled along, he was torn between whether to keep his head low and avoid antagonizing anyone, or to hold his head up to show that he wasn’t a natural victim.

He opted for the latter and was surprised to hear some of his fellow inmates actually cheering him. That was an encouraging sign. But it didn’t alter the fact that prison was prison. He was familiar with it, but that didn’t make it any more pleasant. He had never allowed himself to become institutionalized either before his escape or when he came back to serve out his sentence afterwards.