Q. And did, by any stretch of the imagination, could he have been drinking at that particular time, or drinking——
Dailey also says he has another witness as to his whereabouts and state of sobriety on that night, Calvin Tom, a friend from Oakland. Dailey says that Tom "was with me that night until I went to sleep at 3:40." Tom wasn't called as a witness in the case.
On Jan. 27, Dailey went voluntarily—but without a lawyer—to police headquarters, where he had an appointment to take a polygraph test. Lie detector tests aren't admissible as evidence in California courts, but the test eventually led Dailey to make a statement that, although ambiguous, in part tilted the scales against him. "If he had gone there with a lawyer, there would have been no case against him," says George Walker, who wasn't retained until after the damage had been done. Inspector Howard Bailey, who administered the test, says, "Everything was done to accommodate him. I gave the test later than I usually do. The test was after practice." Bailey explained the procedures to Dailey, and then gave him the test, which took about 40 minutes. He asked Dailey if he wanted to wait while he evaluated the test, but Dailey chose not to. On Feb. 5, after Dailey returned from a road trip, he went back to police headquarters, where Bailey said he had evaluated the test and that Dailey had been deceptive.
Q. (by Fazio).... What, if anything, did Mr. Dailey ask you after you discussed the results of the polygraph with him?
A. He asked me if a person walking in his sleep could commit the acts alleged on the 21st of December at the University of San Francisco in [——'s] room.
Q. What did you tell him?
A. I answered that some people occasionally do walk in their sleep. He wanted to know if a person walking in their sleep could do that. I told him this particular type of prolonged conduct is out of the question.... Mr. Dailey next asked me what I would say if he were able to provide some of his friends as witnesses that would swear he was with them the entire night of December 21st, 1981, and never in [——'s] room.
Q. What was your response to that?