Seconds later he entered the room where Jerry Cole and Andi were standing. Andi ushered him in, while Cole hovered nervously in a tense, fidgety manner by the chair opposite the desk from which he had just risen. Andi closed the door behind Alex, who found himself facing a thin man of about forty with a stooped posture who kept rubbing his hands together in an almost obsequiousness manner. He felt the same feelings towards him that Andi had felt towards Sherman that first day at Levine and Webster, only more so. The man reminded him of Uriah Heap in David Copperfield.
“Alex this is Jerry Cole. As you know, he works in the same lab as Victor Alvarez.”
“Oh please, sit down,” said Alex, pointing to the chair. Cole sat down, awkwardly, looking around as if another chair for Alex might materialize from nowhere if he just waited long enough.
To put him at ease about the fact that he was standing, Alex went and stood by the window, while Andi took her seat.
“Did you have a good flight?”
“Oh er, yes.”
They had paid for his two-way flight and even for him to stay overnight and return tomorrow, so it wouldn’t be so stressful, making the round trip in one day.
“Mr. Cole,” said Andi, “why don’t you tell Mr. Sedaka what you told me.”
Cole took a nervous breath and started speaking
“First of all I can tell you something about the conditions in the lab. We were hopelessly understaffed. That’s why we have a huge backlog of cases that are deemed less important. And that means there are loads of samples waiting to be tested and scanned into the system.”
“And is that relevant to the Claymore case?” asked Alex. “I mean are there samples sitting there that you think could clear my client?”
“Well I didn’t see the tests being done on the Claymore or Newton samples but it’s relevant in the sense that we work under so much pressure that it’s very easy for mistakes to be made. Sometimes we had lab assistants with no college qualifications working virtually unsupervised.”
“And what sort of things can go wrong in practice? With DNA I mean?”
“Well the most obvious danger is cross-sample contamination.”
“How can that happen specifically?”
“Well you know about Polymerase Chain Reaction to increase the evidence sample.”
“Yes.”
“And you know that if there’s even the slightest contamination that gets into the sample before they put it into the thermal cycler then the contamination gets multiplied along with the evidence sample.”
Alex nodded.
“I believe it’s called allele drop-in.”
Cole looked surprised.
“Oh you know about it.”
“Of course.”
Alex was by now getting irritated. He thought that this man would have some specific information that would help them. But all he had were the vague generalizations about DNA labs in general that Alex had already learned from his preparation for this case.
“Well the thing is, I remember they were very busy on the day that the Claymore sample was tested. I know because the lab assistant who tested it seemed very nervous.”
Alex picked up on this.
“What was his name?”
“Steven, I think. Yes… Steven Johnson.”
“And do you have any idea what he was nervous about?”
“No, not really. I just noticed he was nervous. You have to remember it was busy for me too.”
“Do you also do DNA analysis?”
Cole appeared not to have heard the question, almost like he was in a trance.
“Mr. Cole?”
“Oh sorry… no… no I didn’t. I worked in the Forensic Alcohol Section. Sometimes I had to cover for some one in the Toxicology or Controlled Substance sections. But not DNA.”
Alex noticed the flicker in Andi’s eyes. She had picked up on the past tense. Alex, of course, had already known this. Cole had told him. But he hadn’t been so willing to say why and Alex wasn’t ready to close in on that yet.
“Any particular reason for that?”
“No, it’s just the way it was. We all had our jobs to do and different lab assistants worked in the different departments.”
Alex decided to plump for a wild guess, based on Jerry Cole’s apparent age.
“But weren’t you the most senior of the lab assistants working there?”
Jerry smiled proudly.
“Yes I was.”
“Then surely they should have let you work in the DNA section. I mean, let’s face it, that must be the most important section there – certainly the most prestigious.”
“Yes but the head of the lab was against me because…”
He trailed off into embarrassed silence.
“Anyway, I didn’t work in the DNA section.”
Alex realized that the time had come to probe the issue of the past tense.
“But you don’t work there any more – at the lab I mean.”
There were two possibilities and both involved Cole being pushed rather than taking a walk of his own free will. The better scenario was that Cole knew too much and was sacked to silence and discredit him. The less attractive alternative was that he was sacked for some legitimate reason and was now looking for revenge. In fact it was more complicated than that because even if it was former, the lab would probably claim the latter and if it was the latter, Jerry Cole would no doubt hide his shame behind the former.
“No, they fired me.”
“What for?”
“They said I made some mistake on a test batch. Normally, if you make a mistake like that, they send you for retraining. But in my case they decided to sack me.”
“But you did make a mistake, though,” Alex pressed on. “I mean it’s not like they made it up, surely?”
He left it to Andi to monitor Cole’s face. Alex just wanted to hear Cole’s reply.
“I don’t know. I mean they say I did, but I have no way of knowing. It’s not like they showed me the results in writing. They just told me I’d messed up, pointed out that I’d had one warning already and then gave me fifteen minutes to clear out my locker. They didn’t even let me work out the day or the week or let me say goodbye to my friend.”
Alex picked up on the singular, but ignored it.
“Did you say you already had a warning?”
“Yes, I mean I did make a mistake before that with a live batch. It was just an accident, using a stale solution that I thought was fresh. But that just goes to prove what I said about working under pressure.”
“Did you say anything to anyone about that Steven Johnson looking nervous?”
“What?” Again the loss of attention span, or maybe just a misunderstanding of the question.
“Did you express your concerns about Steven Johnson to anyone?”
“Oh… er… no. I didn’t even really think about…”
Alex realized that this precluded any possibility that they might have sacked him because he knew too much. Realizing this, Alex also realized that there was nothing more that they could get out of Jerry Cole – at any rate, nothing useful. Feeling only mildly sorry for the man and not wanting to waste any more of his valuable time, Alex looked at his watch.
“Yes well, thank you very much Mr. Cole. You’ve been a great help.”
Cole got up awkwardly as Alex walked to the door and opened it.
“So when are you calling me?”
“We’ll let you know,” said Alex, hustling Cole towards the door. Cole became slightly agitated at being forced to make such a rapid departure.
“Because I really want to testify,” said Cole, anxiously. “I think I can make a difference.”
Alex was nodding towards the open doorway for him.
“Well thank you again. And don’t worry. We will let you know.”
Cole looked like he wanted to say more, but the implacable look on Alex’s face warned him that he could only expect anger if he persisted. Alex gently but firmly hustled
Cole out across the reception area and closed the door behind him. Then he turned back to Andi who was looking at him expectantly. He straightened his tie and took a deep breath, looking at first at Andi and then Juanita.
“Are you gonna tell us boss?”
It was Juanita with that taunting smile across her face.
“We can’t use him.”
“You think he’s a psycho?”
This was Andi.
“Oh no he’s legit. It’s just that the prosecution will tear him to pieces. Trust me, Cole won’t thank you for putting him through it and won’t help Claymore in the least.”
Andi nodded at Alex’s logic. But she had more to say.
“And yet I can’t help thinking that what he said was actually true.”
“I’m sure it’s true. Look we know what it’s like in forensic labs these days. Everything he said made perfect sense. But it’s all just a collection of cheap generalizations. It’ll take more than generalizations to save Claymore – especially if we send in a meek Christian to face a lion like Sarah Jensen.”
“No I don’t mean that Alex,” said Andi.
“Mean what?”
“About the generalizations. About the high pressure atmosphere at the lab. I think he may have been on to something when he said that the technician who handled the crime sample looked nervous. I think he may have been telling the truth. I think he may well have seen something... something specific”
“Oh come off it Andi, you don’t think they sacked him ‘cause he saw too much? I made sure to cover that one – he said he never told anyone.”
“No I’m not saying they sacked him for it. I’m sure they sacked him for a legitimate reason. I’m sure he was careless and they gave him a warning and he screwed up again and they decided that enough was enough. I accept all of that. It’s just…”
“What?”
“It’s just that I still think he may be right about the lab technician. Just because they sacked him for a legitimate reason doesn’t mean he’s lying when he says the technician was nervous. Cole may have seen it at the time and thought nothing of it – or at least not cared enough to do anything about it. But that doesn’t mean he’s lying… or even imagining. I think he may have really seen it. And he’s been thinking about it ever since they sacked him.”
“But what if he is right?” Juanita stepped in. How are we going to prove it when we haven’t got a reliable witness to put up there on the stand.
Andi thought about this for a few seconds.
“I think maybe we should subpoena the worksheets from the lab’s log book.”
“They should’ve supplied them as part of the discovery.”
“But they didn’t. That’s another thing that sets me thinking.”
Friday, 21 August 2009 – 10:20
The Friday morning session was taken up with legal arguments in the judge’s chambers. It started off pretty well for the defense, when they filed a discovery motion for the log book work sheets from the Ventura forensic lab. Sarah Jensen responded that this wouldn’t be a problem and after a quick word with Nick Sinclair, she replied that the prosecution didn’t oppose the motion and even had a copy of relevant pages in her file already. The copy was handed to the clerk who made copies for the defense and judge and it was marked as an exhibit for future reference.
The truth of the matter was that it would have been hard to impossible for Sarah Jensen to oppose the motion. But in any case, she was grateful to the defense for stipulating to the chain of custody on the DNA, which spared the jury having to hear several boring witnesses and shortened the trial by maybe a day or two. So she flagged them through on this point, confident that there was nothing in the work sheets that they could use against the prosecution. She had been through the work sheets very carefully and it all looked like routine. Everything was signed in and out. There were no gaps in the timing and no excessive handling of the evidence as far as she could see. Indeed if there had been excessive handling, it would in all probability have been in the chain of custody stage before it reached the lab. The fact that the defense had waived the right to question the chain of custody witnesses, meant that they didn’t expect to find anything in that regard. Still, she was curious as to their sudden interest in the work sheets.
However, after the relative tranquility and agreement of the parties on the work sheets, matters became somewhat acrimonious when a third party entered the picture.
That third party was LegalSoft, the software company that had created the jury selection software used by the Alameda County courts, as well time-management software, also used by the courts.
“Your Honor the source code to this software is clearly proprietary information and a trade secret,” argued Melvin Kenney, the lawyer for the company, a 6’5” former Notre Dame full-back. “Furthermore it is not covered by the California Public Records Act as it is private. And as to the fact that it is being used by the court, I would point out that the courts are also exempt from the CPRA. Accordingly my clients should not be forced to hand it over.”
Andi – who for once had been given the green light to argue the matter herself, because of her superior knowledge about such matters – pressed on with her arguments.
“Your Honor, counsel is attacking a straw man. Our motion has nothing to do with the CPRA. It’s a subpoena motion for evidence relevant to the defense, pertaining to our client’s Sixth Amendment Rights. The Court has already conceded that if the defense can establish that there has been intention-based interference with the ethnic composition to the jury then it will amount to a Sixth Amendment violation. We have been able to establish some fairly severe statistical discrepancies but the only way we can establish their cause is to analyze the software. As to the secrecy element, we will of course be bound to refrain from disclosing what we discover outside the confines of the courts and we accept that. So LegalSoft have nothing to fear in that regard.”
“Your Honor,” Kenney continued. “This information could be prejudicial, as it could lead to law suits against LegalSoft – and could have other severe consequences to the smooth operation of justice.”
He smiled smugly at this, prompting a look of anger from Justice Wagner. But she contained her anger. What had antagonized her was that he was hinting that if the defense found anything wrong with the software could open the floodgates to appeals in criminal cases, leading to large numbers of convicted criminals – most of whom were probably guilty – being released onto the streets. In theory such people could be retried, but with the passage of time and fading witness memory – not to mention logistical problems – that would be unlikely in practice. But no judge could allow herself to be swayed by this argument. Ellen Wagner’s decision had to based on law and let the chips lie where they fall.
However, before that, Andi had something to say.
“Your Honor, if the software is defective, then it is right and proper that there should be lawsuits–”
“But not right and proper that our client should be forced to incriminate itself,” Kenney interrupted
“It isn’t incrimination if it’s a civil matter.”
“But there is no automatic right to access to trade secrets to help in a lawsuit against a private company.”
“But we’re not trying to start a lawsuit against anyone, Your Honor. Our aim is purely to protect our client’s Sixth and Fourteenth Amendment rights.”
“But it could have that effect Your Honor,” Kenney shot back, “as a by-product of the defense’s actions.”
“Your Honor the rights of a company against the vague – at this stage phantom – threat of a lawsuit must take second place to the rights of a defendant in major felony case to a fair trial.”
Justice Wagner, homed in on this.
“But you must admit that the same potential findings that will trigger concerns about the fairness of the trial would also trigger likely lawsuits against the company.”
Andi thought about this for a moment.
This silenced Kenney, and even the judge looked confused.
“Would you care to elaborate on that, Miss Phoenix,” Ellen Wagner prompted.
“We don’t think there actually is a problem with the source code. Our belief is that it is not the source code that is flawed but rather the executable program.”
“Then I don’t understand why you need the source code at all. Why would it help?”
“Because, You Honor, it can help to show discrepancies between what the executable program is doing and what it is supposed to be doing.”
“In what respect?”
“We think that the original software was problem-free but that it has been tampered with so as to produce these anomalous results. In other words, the problem is in the executable program. But in order to prove that, we need to compare it to the original source code.”
“If there is any tampering, Your Honor, which counsel has yet to prove!”
“We’ve already established the statistical discrepancy that cries out for an explanation, not only in this case and not only in this county, but in quite a number. The defense submits that this is sufficient probable cause to give us a court order to obtain a copy of the source code.”
The judge, looked over at Kenney to see if he had anything to add. He shook his head, having already made his position clear.
“I think I’m going to grant this order.”
Kenney’s frustration was palpable. It was inevitable that he would file an appeal before the day was out. But in the meantime, Ellen Wagner was satisfied that she had done the right thing. She turned to Andi.
“Do you want it in printed form or electronic?”
“Electronic is quite sufficient.”
“OK, LegalSoft is ordered to provide the defense with a copy of the source code in electronic form by ten O’clock Tuesday morning.”
Friday, 21 August 2009 – 12:30
“The arguments took place not only outside the presence of the jury, but also the press.”
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