Because Kropf had specifically said “saw your client” — not “saw some one.” That meant that an ID had already been made.
“Wait a minute, you put my client in a line-up when I wasn’t there?”
Alex knew perfectly well that they could do a photo line-up without the accused or his lawyer being present. But this was unusual when the suspect was already in custody. Then again, maybe the arrest took place after the line-up.
“We didn’t need to,” said the lieutenant, squelching Alex’s speculations. “He recognized him from the news reports.”
They hadn’t said anything about a witness at the time of Claymore’s first arrest. And even if he was right about the identity of the man running away, how did he know that it was from the scene of a rape? If he had known at the time, would he not have stayed to help the victim? Or given his name to the police? And would they not have said something about a witness at the time of the first arrest? And put Claymore in a line-up? But now they were saying that this man had recognized Claymore from the news reports. That meant that he didn’t stick around at the time.
Why not? Had he been afraid? Why would he be afraid if the rapist had run away? Was he afraid to get involved? Was he afraid of the police? Was he a criminal himself? Had he really seen something? Had he even been there? Or was he one of the legion of freeloaders who come out of the woodwork in high profile cases, looking to make a quick buck?
“Can I see his statement?” asked Alex.
“We haven’t charged him yet.”
This was true. If they did charge him, Alex would ask the DA. It would then become what was known as an “informal request” under Section 1054.5 of the Penal Code. That would give the DA fifteen days in which to give the defense a copy of the statement. And if he still hadn’t complied after that, Alex could take it to a judge and seek immediate disclosure or a delay proceedings until the disclosure requirement was met. The judge could also tell the jury about the DA’s failure and allow them to draw the own conclusions or even bar the witness from testifying. In extreme cases, the DA could even institute contempt proceedings against the DA or could. However, all of that was academic at this stage, because, as Lieutenant Kropf had said, they hadn’t yet charged Claymore — and it was possible that they never would.
Still, Alex had to protect his client from something called “impeachment by silence.” He could do this, by getting his client to invoke his right to remain silent. Even though he had made a previous statement, he could re-invoke the right now and be protected under the Caruto ruling. But he had another tactic to spring on them.
“If you show us the statement now, my client might be able to offer you some explanation. But if you don’t show it, we don’t actually know what we’re supposed to be answering, beyond your vague description.”
Kropf looked unimpressed at this feeble attempt to turn the tables.
“Explain what? Why your client was at a crime scene at the time of the crime? Or why he told us at the time of his first arrest that he was at home?”
Alex decided not to push it.
“The ball’s in your court Lieutenant.”
The door opened abruptly and Bridget entered. She signaled the lieutenant over and had a whispered word in his ear while the other detective kept an eye on Claymore. Alex noticed that she was showing her superior a piece of paper. The lieutenant was nodding seriously and the expression on his face looked grave. Alex suspected that this scene was being staged. He had seen this sort of thing dozens of times before, if not hundreds.
The lieutenant came back to the table.
“Do you want the good news or the bad news?” he asked Alex.
“Just cut the crap and spit it out,” said Alex.
“We just got back the results of the DNA test.”
Alex suspected that they already had the results before re-arresting Claymore. They wouldn’t have arrested him on the strength of the witness’s photo ID alone, when the test results were still pending.
“And?” asked the lawyer tensely.
“We didn’t have any DNA in the vaginal swab because the rapist used a condom. But the victim scratched the rapist’s face and so we were able to get a good DNA sample from under her fingernails. We’ve had the results in. Want to know what they were?”
“Spill it,” said Alex, realizing where this was going.
The lieutenant handed over the fax to Alex, watching his face for a reaction with a growing sense of excitement. But when Alex perused it, the emotion he felt was anger — not towards Kropf, but towards his own client. And when he showed it to his client, the look on Claymore’s face was one of confusion… and fear.
Friday, 12 June 2009 — 14:30
“Your Honor,” Alex Sedaka’s voice rang out confidently, “although my client has a criminal record, his last criminal conviction was over twenty years ago.”
They were in Court 13 of the Ventura Courthouse, in the same building where Claymore was being detained. It was a crowded courtroom that had recently been remodeled with backless spectator’s benches and a large cage for holding prisoners. There had been complaints about the new layout from defense lawyers, claiming that there was not enough room for them to talk to their clients in private. But the presiding judge had defended the new arrangement.
Being based up north in the Bay area, Alex had never had to practice here before, but he understood the court administration’s rationale. This was one of the busiest courts in the country, essentially a meat-factory for arraignments, scheduling motions and defendants’ pleas. It had to be designed with utility in mind, rather than comfort. And utility, in this context, meant the convenience of the court, not convenience of the lawyers. With 200 cases a day to process, user-comfort was a luxury that they couldn’t afford.
“Mr. Claymore has strong roots in the community,” Alex continued. “And for the last ten years has been a model citizen.”
In truth Alex was rather less confident than he sounded. The warrant for the second arrest had been a “no bail” warrant, because of Claymore’s past. Of course it had been issued before the judge had heard Alex’s carefully rehearsed arguments. But the fact that the warrant for Claymore’s second arrest had denied bail was a powerful indicator of which way the judge’s thinking was heading. Alex would have liked to file for an interim appeal. But he knew that his grounds were weak to non-existent. Denying bail to a man who had previously escaped from prison and stayed at liberty for several years was hardly unreasonable.
But his training and experience as a trial lawyer, permitted him to conceal the doubt — indeed required him to conceal it.
So it was with this turbulent mixture of emotions, that Alex was addressing the judge. Except that he was all too aware that he wasn’t addressing only the judge. The courtroom was packed with reporters and he knew how important it was to get the message out there into the stream of news as quickly as possible, to counteract the negative effect of Claymore’s well-known past.
It was inevitable that the media would dredge up Claymore’s history, and unlike Britain there would be no restrictions on public discussion of the facts of the case. Gag orders could be imposed at the judge’s discretion, but there was no automatic sub-judice rule in the United States as there was in Britain.
This was Claymore’s arraignment appearance — in effect his first appearance in court since his arrest, and predictably enough it had attracted a lot of public attention. As Alex sat down, a woman of about forty of average height with neat, jet black hair, rose from her chair to dispute the point. She was Sarah Jensen, the Assistant District Attorney who headed the Domestic Violence Division of the DA’s office. Alex had never crossed swords with her before but he was well-aware of her reputation. Some prosecutor’s are tough in their attitude and demeanor, but not really good at their jobs. Others were good but not tough. Sarah Jensen was both.