No Way Out

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.

Wednesday, 26 July 2009 — 11:55

“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?”