No Way Out

“It was a destructive test. Afterwards there’d’ve been nothing left.”

“And it was this fake evidence sample that was then separated and detected and matched to the defendant?”

“Objection, Your Honor,” said Sarah Jensen, rising swiftly to her feet. “The question is compound and calls for a conclusion of the witness. This witness didn’t do any of those other tasks, and unless he actually saw them being done, he isn’t qualified to say that they were. And given that he has already stated that the lab was busy, I think we can safely rule out that possibility.”

Alex knew that he had them on the ropes now. That was why Sarah was objecting on such petty, technical grounds — because he had them beaten.

“Would you like to rephrase that question, Mr Sedaka?”

“Yes, certainly. Mr. Johnson, was it this fake sample that you signed off on?”

“Yes,” he choked, the tears flowing profusely now.

“No further questions.”

He sat down looking solemn. Andi was smiling, but trying not to. Of all the reactions, Claymore’s was the strangest. He was looking at Andi with a blank, neutral look on his face.

“Any redirect?”

“No Your Honor,” said Sarah Jensen, uncomfortably.

Ellen Wagner, looked at the Steven Johnson as he sobbed uncontrollably into his hands.

“The witness is excused. I will not issue a bench warrant for the arrest of this witness at this time. However, I am sure that the DA will look into this matter and take the necessary action in due course.”

Steven Johnson left the stand, his body shaking as he sobbed. Alex rose, keeping his face neutral.

“Side bar Your Honor,” said Alex.

“You may approach.”

Alex, Andi and Sarah Jensen approached the bench.

“Your Honor,” said Alex, “in view of the fact this evidence isn’t merely tainted but downright fake, I think that an uncontested motion for dismissal with prejudice would be in order.”

The judge turned to the Prosecutor, expectantly.

“Any objection?”

“Your Honor, this evidence may be tainted,” she replied half-heartedly, “but we have a reliable back-up system in place.”

Wednesday, 26 August 2009 — 15:00

Gene Vance was watching the trial at the rape crisis center. She had returned to LA, explaining Andi that she was needed here and couldn’t take any more time off. But her mind wasn’t really on the job.

A strange sensation of confusion wafted over her as she tried to take in what she had just seen. One moment the case against Elias Claymore looked rock solid. The next moment it was on the verge of collapse. Gene didn’t know much about law in general but she knew about rape law in particular and there was no way the prosecution case could survive the shocking revelation that had just emerged in court.

No matter what the strength of the victim testimony, it was the DNA that incontrovertibly linked the rape to Claymore. Without that, Bethel’s contradictory accounts of the assailant’s age would make it impossible to convict him.

But now it was all starting to unravel.

Gene could only guess at what they were talking about at the sidebar. The microphones were switched off for that. But she assumed that there was some technical quibbling about whether the charges could be dropped without prejudice so that they could conduct a retrial without the tainted evidence. Not that they would. But it would be a face-saving formula for the prosecutor. She could leave the courtroom still projecting that they could prosecute Claymore again. The DA would announce that they were dropping the charges later. If the judge required that the charges be dismissed with prejudice, then it would be a crushing humiliation for Sarah Jensen and she would take the rap, because the DA’s office needed a scapegoat.

Gene felt sorry for her. But she felt even more sorry for Bethel. Bethel wanted some semblance of justice. Now she was getting nothing. She would be leaving the court empty-handed.

That wasn’t right.

Gene picked up the phone and called a number.

Wednesday, 26 August 2009 — 15:05

“What do you mean?” asked Justice Wagner, leaning forward.

“We had three nail clipping samples, two from the index and middle finger of Miss Newton’s left had and one from the thumb of her right. These samples were all stored separately, so as to ensure that if they had to be tested destructively, some portion of the sample would be preserved. Therefore although the sample that was used in this test was lost, there were in fact two other samples available for testing purposes and these two samples are still in storage at the Ventura lab. I suggest that the Court grant a continuance so that we can process and test one of these samples.”

Alex was getting increasingly irritated, as he sensed victory slipping away.

“Your Honor, if this is so then why did this witness create a fake sample. Why did he simply not check out one of the spare samples?”

“I think the answer is obvious,” said Justice Wagner. “He didn’t want to admit his own mistake. Also he may not have known about the other samples. He only knew what he was told. Maybe they gave him just the one evidence sample and told him to test it with no other instructions. At any rate, the other samples exist, so they can be tested.”

“Your Honor even if this is so, in view of the behavior of this employee of the lab and the failure of the lab to stop him or even detect his misconduct, my client has legitimate grounds for concern over the reliability of any future testing procedures done by this lab until the matter can be thoroughly investigated. Moreover because of the evidence on record already, I would submit that this jury is tainted by that false evidence.”

“You could always move a mist-trial without prejudice, Mr. Sedaka. That way we could start again with a new jury.”

Alex hesitated. He was about to launch into another objection, on the grounds that this would enable prosecution witnesses to avoid the pitfalls that they had fallen into the first time around. But then he realized that it might have the opposite effect. Alvarez could only answer according to the science and whatever the new tests showed, he would have to testify accordingly. But Albert Carter and Bethel Newton herself might be reluctant to testify at all — after the humiliation they been put through on cross-examination.

“I’m ready to accept that, Your Honor.”

But now Sarah Jensen was panicking.

“Your Honor, that would be extremely disruptive and would cause considerable distress to several prosecution witnesses who are clearly emotionally fragile and who have been testifying in good faith.”

Ellen Wagner thought for a moment.

“At this stage we don’t know what the results of the tests will be. There seems to be no point in anticipating the results. If the new tests exclude the defendant then the matter will be decided for us. If not then I’ll hear legal arguments as to how to proceed at that stage. In the meantime, how long will the tests take?”

Justice Wagner had turned to Sarah Jensen when she asked this.

“We’ll be using Y-STR again so four or five days should be enough.”

The judge turned to Alex.

“In the event that the new tests fail to exclude the defendant will the defense be ready with legal arguments by Monday morning?”