No Way Out (13 page)

By this time, the Brothers regarded him as more of an embarrassment than an ally and it was widely rumored that it was one of his own who betrayed his hiding place to the FBI. He still remembered the day the Feds came for him. It was anger, not fear, that he felt as he saw the flickering lights in the distance and knew that he had nowhere to run from the vast convoy of lawmen that it had taken to bring him down.

He considered fighting to the death and taking down as many of the “pigs” with him as he could. It was not vainglorious courage. If he went to prison, he fully expected to be killed there. So he saw no reason not to make his last stand here and now. But he realized that if he could at least have his day in court, he would have the one thing that the White’s Man “free press” had denied him until now: a platform from which to speak and from which his message would surely be heard.

He was arrested and charged with six counts of rape, based on the testimony of those who came forward. Sentenced to nine years, he escaped after one, under the cover of a prison riot, with the aid of another group – this one basing its ideas on racially separatist version of Islam rather than secular revolution.

But three years in Libya and Sudan had shattered the illusion. He had seen corruption and double standards in Libya. Then when rumors of a US government plot to kidnap him started floating around, he moved on to Sudan. It was there that he saw how the blacks in the south of that country were treated as second class citizens. No amount of excuse-making and weasel talk could change that.

Yes, many of those blacks were Christians and their persecution was partially religious rather than racial. But so what? If that was their belief system, were they not entitled to it? Did it make any difference if their oppressors claimed that it was religion rather than race that reduced the Blacks of southern Sudan to the status of second-class citizens? Oppression was oppression and if he wasn’t prepared to make excuses for oppression in America then why should he make excuse for it here in the Third World?

And the more he spoke to the Christian blacks in the south of Sudan, the more he learned about their culture and ideas and the more he realized that he had fallen for some one else’s illusion. He had been led to believe that Christianity was the religion of the oppressors and that Islam was the natural religion of the black man. But it was here that he saw the other side of the coin. And America too was changing. Whatever its faults, America was growing and learning from its past mistakes. At least the American way had a future.

He had once said that indifference was impossible: if you’re not part of the cure you’re part of the disease. But as he looked toward his homeland – his real homeland, America – he saw that more and more people were becoming part of the cure. He had seen the first glimpse of it back in the sixties – in the freedom riders of all races. He saw it now in the newly enfranchised young who were asserting themselves politically as well as in more trivial ways. The same wind of change that had once swept colonialism out of Africa had blown “Jim Crow” out of America.

Yes, there was still injustice in America. But there was also resistance to that injustice. Yes, there was still suffering. But there was also hope. Yes there were the lingering after-effects of past injustice. But those lingering after effects would be swept away too, as long as good people kept trying and never gave up working together.

And it came to this: after seeking the truth in a foreign desert – a truth that almost eluded him – Elias Claymore saw the light of day and found happiness where he had started out, in his own backyard.

So at the end of three lonely years in exile, the prophet of conflict and bitterness finally returned home.

“Hear ye! Hear ye! Hear ye! The Superior Court of the State of California, Alameda County, is now in session, the Honorable Justice Wagner presiding. All persons having business before the Court come forward and give your attendance and you shall be heard. God save this Honorable Court and the United States of America.”

Justice Ellen Wagner – a senior judge of the California Superior Court – took her seat in Court Number 7 of the Rene C. Davidson Courthouse in Oakland and the others followed suit. In her sixties, she was a striking, bespectacled African-American woman who projected dignity and gravitas from every pore. A veteran of the civil rights struggle, she had, in her youth, endured threats and even beatings as a freedom rider in the nineteen sixties. Along with a quarter of a million others, she had stood on the National Mall when Martin Luther King made his immortal “I have a dream” speech.

She had always claimed that her education began with the 1954 decision in the case of
Brown versus Board of Education Topeka
in which the Supreme Court ruled that racial segregation in publicly funded education was unconstitutional. But it was not the education offered by the system in light of the ruling that she was referring to. It was the education provided by the ruling itself. As a precocious eleven-year-old she had followed the case closely, encouraged by her aunt, who taught her to read. She had sat on her aunt’s porch, enthralled, as her aunt explained the more difficult words of the eloquent arguments used by civil rights lawyer Thurgood Marshall.

Thirteen years later, Marshall was appointed by President Lyndon Johnson to serve as the first African-American justice on the highest Court in the land. One year after that, Ellen Wagner fulfilled her own childhood dream by winning a coveted place to clerk for Marshall at the Supreme Court.

A panel of 150 veniremen was assembled in about twelve rows, sitting there looking nervous. This was quite a large panel, even for a felony case. But the judge was mindful of the fact that this was a high-profile case involving a popular and controversial public figure, and it was necessary to ensure that there was a large enough panel to allow for the many challenges for cause that were expected.

The veniremen had been shown a video explaining to them all about their duties as jurors and now after a day and a half of waiting around they had finally been brought into a courtroom. The question they had all been wondering about was whether they would be selected for the Claymore case. Not all of them wanted to. They knew that it was going to be a long case and they had jobs to do and lives to lead.

But some of them did want to be on the jury, for various reasons. Serving on a jury in a high profile case could be a passport to easy money. It was not unusual these days for jurors in high-profile cases to sell their stories to the press. Some of them “knew” that Claymore was guilty and wanted to “nail that bastard”. Others “knew” that he was the victim of a white man’s witch-hunt and wanted to save him from the clutches of a racist legal system. Yet others just wanted to tell their friends that they were on the Claymore trial jury.

Sarah Jensen was still on the case, in the prosecutor’s first seat. But now, she was assisted by Nick Sinclair, a short-bearded African-American lawyer in his mid-thirties, assigned to the case by the Alameda DA. The choice was not accidental. The DA wanted to show that this was a crime against women, but also to reassure society that it was not a race issue: hence the combination of Sarah Johnson from Ventura where the alleged crime was committed and Nick Sinclair from Oakland to create the right balance in the jury’s mind.

At the defense table, Claymore sat uncomfortably. Alex – a quintessential trial lawyer – was very much in his element. He leaned over and whispered a quiet last minute word to Andi.

“I don’t know this judge, but I she looks kind of tough, so I think we should set the program to assume that she won’t allow any of our challenges for cause.”

They were using a piece of software called
JuryWizard
. It allowed them to grade jurors according to how good or bad they were for their case and to prioritize who to cut or challenge without cause. If the judge allowed all or most of their challenges for cause, then they could use their “cuts” quite liberally to clear out the remainder of the undesirables. But if the judge was less accommodating, the peremptories had to be used more sparingly, to screen out the worst of the ones they didn’t want. They could set the software to allow for what percentage of the challenges for cause the judge would allow and it would flag and prioritise the ones they should cut.

The plan was that Alex would ask the questions and Andi would input the data.

“Something’s bothering me about this panel,” said Andi, her eyes glued to the prospective jurors.

“What?”

“There are hardly any blacks on it.”

“I know,” said Alex, “But we’ve agreed that it’s not necessarily a disadvantage.”

“Yes but it doesn’t make sense.”

“I guess it’s because they’re under-represented on the voting register. A lot of blacks still don’t register to vote.”

“You’re living in the past Alex. This is the Obama age. Besides, the jury’s also drawn from driver’s license registration.”

Alex waved his hand dismissively.

“It could just be a statistical blip. Let’s not make a mountain out of a hill of beans. There’s nothing we can do about it now. We’ve got bigger things to think about.”

“Is the prosecution ready?” asked the judge

“Yes Your Honor,” said Sarah Jensen. “I appear on behalf of the People. Mr. Nicholas Sinclair of the Alameda County DA’s office is my co-counsel.”

Alex rose.

“Your Honor I appear on behalf of the defense. My co-counsel is Miss Andromeda Phoenix.”

He sat down.

“The People may proceed.”

“Thank you Your Honor.”

Suddenly – and quite out of the blue – Andi rose, leaving Alex looking surprised if not downright terrified.

“Your Honor, may it please the court, before we begin voir dire, I wish to lodge an objection to the panel.”

They all looked at her in confusion, including Alex.

“The
entire
panel?” asked Justice Wagner, with measured composure.

“Yes Your Honor.”

“Your grounds Miss Phoenix?” asked the judge, her curiosity aroused.

“Fourteenth Amendment, Your Honor, systematic exclusion of jurors on grounds of race in clear violation of the principles of
Batson versus Kentucky
, 476 U.S. 79, 1986.”

Justice Wagner peered down her varifocals at Andi, somewhat bemused. Alex, in contrast, was struggling, not to show his irritation. The case Andi had cited involved the prosecutor’s abuse of peremptory challenges to systematically exclude blacks from the jury.

“I’m not quite sure I’m following you Miss Phoenix. The jury hasn’t been empanelled yet. The voir dire hasn’t even started.”

“I’m referring to the clear statistical under-representation of African-Americans on the panel of veniremen. Alameda county is nearly fourteen percent black. On that basis there should be about twenty one or twenty two African-Americans on this panel. I can only see seven – sorry eight. This under-representation is clearly contra to
Strauder versus West Virginia
, 1880, upon which the previously cited
Batson
ruling was founded.”

“Ah yes
Strauder
,” said Justice Wagner, with a wry smile. “The case that held that States have the right to exclude women from juries.”

Andi looked flustered.

“I believe that at the time, the Nineteenth Amendment had not yet been passed, whereas the Fifteenth had. So the ruling merely reflected the state of play with regard to the constitutional position on voting rights for blacks and women respectively. In any event, the ruling remains in force and has been cited in other rulings.”

“Yes Miss Phoenix, one of those rulings being
Hoyt versus Florida
in 1961, in which the Court ruled that making jury service compulsory for men and voluntary for women did not violate the Fourteenth Amendment.”

Andi gritted her teeth.

“With
respect
Your Honor, the Fourteenth Amendment has always been interpreted as referring to racial rather than gender discrimination. The fact is –”

“The fact is, Miss Phoenix, that the
Washington
versus Davis
case of 1976, held that the legal test to be applied is
intention
-based not
effects
-based. The issue that the Court must consider is therefore
not
whether the
result
of a practice is racial disproportionality in the jury
per se
, but rather whether there was a
deliberate intent
to wholly or partially exclude a particular ethnic group from the jury.”

An astute observer would have noticed a pained expression on Ellen Wagner’s face as she said these words. But they might not have realized that the reason for this was because her own, highly respected, Thurgood Marshall had dissented in
Washington
versus Davis
.

Andi tried again.

“Your Honor, that precedent was set in a
federal
case under the fifth amendment, citing the due process clause. My citation is of the Fourteenth Amendment at the state level, referring not to its
own
due process clause but rather to its
equal protection
clause. It was the wording of the equal protection clause that was explicitly cited by the Court in
Strauder
.”

“Be that as it may, Miss Phoenix, the
ratio decidendis
for holding that disproportionality
per se
is not a constitutional violation is as applicable to the Fourteenth Amendment’s ‘equal protection’ clause as to its ‘due process’ clause.”

“In that case, Your Honor I would also cite my client’s
Sixth
Amendment right to trial by an impartial jury.”

“Are you saying that failure to ensure racial proportionality in the venire panel would negate the impartiality of the final jury?”

Andi paused. She knew she would have to be careful here because this was in the presence of the venire panel. She didn’t want to alienate them by accusing them of bias.

“Side bar, Your Honor?”

“Approach.”

She approached the bench with Alex, who didn’t trouble to hide the anger on his face. Sarah Jensen and Nick Sinclair also approached, but took their time in doing so. The judge switched off her microphone and Andi leaned forward as she spoke in a whispering voice, forcing herself to sound less strident and more appealing.