No Way Out

by David Kessler

  “What was that?” asked David.

  “Oh, er hi David. Nothing. I was watching the TV.

  “That’s not like you. You’re usually all work and no play.”

  “I guess the case is taking it’s toll. Anyway it’s not like you to phone this early on a Saturday.”

  “I know, it’s just that I’ve had some results looking at the jury selection program.”

  Alex sat bolt upright and signaled Martine to be quiet. David’s tone had been ever so calm and measured that anyone else hearing it would not have known how tinged with excitement is was. But Alex Sedaka had known his son for 26 years and he could tell when he was gripped by excitement.

  “What did you find?”

  “The solution! To the jury selection software problem! I’ve found out how the software was rigged! I mean I’ve discovered what the tampering actually does.”

  “So tell me!”

  David’s tone took on the aura of embarrassment.

  “I’m not sure if I can explain it to you.”

  Alex wasn’t in the least bit offended. He was, at worst, mildly irritated.

  “Oh don’t do the old ‘ignorant father’ routine. I need to know.”

  “Okay, but look, it’s hard to explain it in words alone. I may need to show you some things. I can drive round there.”

  Alex didn’t want David coming round there now. Obviously he would have to tell him at some point about how the relationship with Martine had progressed. But now was not the time.

  “Can’t you eMail them over? Besides, Andi needs to hear it too.”

  “Maybe you can get her to come round as well. That way I can show you the print outs and diagrams and everything.”

  Alex had to think quickly.

  “I’ve got a better idea. Let’s do one of those three-way video conferences that you’re always on about.”

  “Okay. We can use Oovoo. Phone Andi and tell her to log in, then you log and I’ll log in and I’ll invite both of you. You just have to accept the conference and we’re up and running.”

  Saturday, 22 August 2009 – 09:30

  It was Saturday morning and Bethel was miserable. Last night she would normally have been out on the town with her friends. As a double rape survivor she kept trying to tell herself that she had almost recovered. Almost, but not quite. The experience of testifying at the trial and listening to the other witnesses, brought it all flooding back. And now when she should have been out having a good time, she was sitting at her friend’s home feeling miserable and depressed. She was staying with her friend Linda for the duration of the trial. At the end of the trial she would go back to her parents and try and get on with her life. Not that she was sure what “getting on with her life” meant any more.

  She had planned to go back to college. But the idea no longer held its appeal. She couldn’t face people after the rape – the second rape. She couldn’t face men. She had gone out on a few dates since the rape, but they always made her feel cheap and dirty. Not that they were aggressive. Most of them went out of their way to be respectful, almost to the point of timidity. But the kid gloves treatment reminded her that she was damaged goods. It was as if they were saying to her that they didn’t want to touch her. Or if a few of them became bold enough to touch her, she flinched away from them.

  And this rape had in some way affected her more than the first.

  The first was date rape. It had hurt her deeply at the time. But somewhere along the line, she had seen it coming. Orlando had been building up to it the whole evening. Although she didn’t want to have sex with him, she had been mentally prepared for the rape as she saw Orlando’s frustration steadily degenerate into anger and then violence when he didn’t get his way, like a frustrated child throwing a tantrum. And because he was such a big child and she was alone with him, it was obvious long before it happened that she wouldn’t be able to hold him off.

  Also, she knew that Luke Orlando had suffered for it too in some ways. He had lost friends as a result of it: his friends knew full well that he had raped her – just as they knew he had raped the other girl who came forward at the time, but whose case was never heard.

  But this time it was different. When she got into the Mercedes with that smooth-talking man, she hadn’t expected it all. She had heard all the racist generalizations, but it was precisely for that reason that she was determined not to be intimidated by them.

  The last time she was raped, some of the men she knew had even offered to “beat up that bastard”. But that did nothing to ease her pain. They were seeing it in terms of revenge. But they were missing the point. What she wanted was not revenge but empowerment. Perhaps, in a way, that was really what men wanted too. Perhaps revenge made men feel empowered.

  But in any case, the feelings of empowerment eluded her. When she had testified in court, she didn’t feel empowered, in spite of all the pep talks they had given her at the rape crisis enter. The opening bars of “For what it’s worth” rang out from her cell phone.

  It startled her out of her thoughts and jarred her into awareness of her surroundings. More to the point, it brought her down to earth and made her realize that in the real world she was just a weak little girl. She looked at the display and it showed a number, but not one that she recognized. She wondered who was calling. She didn’t like answering the phone when was alone. Since the rape she had been afraid of strangers. Even strangers at the other end of the phone frightened her.

  And so now, listening to the phone ring, the apprehension grew inside her as she wondered who it was. Her hand tried to find the phone, fumbling its way around the low table. But fear held it back. Eventually, her curiosity overcame her fear. She picked up the receiver.

  “Hello?” she said abruptly, putting on a Mexican accent that she could hide behind, in case it was some one she wanted to avoid, by pretending to be some one else.

  “Is that Bethel?”

  It was a woman’s voice… a familiar voice… but it sounded distorted.

  “Who is this?”

  “Who wants to know?” would have sounded corny.

  “You don’t know me. My name is... you can call me ‘Lannosea’.”

  “What do you want?” Hearing such a strange name made Bethel nervous. Anyone using a name like that had to be a weirdo. And the she didn’t need a weirdo in her personal space on top of all her other problems. But the fact that it was a woman was reassuring.

  “I want you to know that Claymore isn’t going to get away with it... and neither is Alex Sedaka.”

  “What... what do you want?”

  “I want you to know that there’s some one out there fighting for justice... fighting to give you justice.”

  “You said... Alex Sedaka.”

  “He raped you too, figuratively speaking.”

  A streak of terror went through Bethel like a lightening bolt. This woman was reading her mind. She was telling her the thoughts that had been going through her head only a few minutes ago.

  “What are you going to do?”

  “I intend to make sure that all those who have harmed you are punished. I intend to give you the justice that the system has denied you.”

  Bethel was apprehensive, but no longer fearful. This woman was not her enemy. But she knew that she had to be careful what she said. It was one thing to wish for revenge, it was another to be associated with it. And yet the voice gave her a note of hope. This woman was in some way her kindred spirit – a woman who could read her thoughts, feel her pain, almost with the same heart beating inside both of them... whoever this woman was.

  “Thank you,” said Bethel quietly. “Thank you,” she said again her eyes squinting against the tears that were now flowing freely.

  “Be strong,” said the woman’s voice at the other end of the line, gentle yet hard. “Be strong and courageous. Justice will soon be with you.”

  Saturday, 22 August 2009 – 10:20

  “OK, let’s hear it,” said Alex.

  They
had set up the three-way video conference, with Alex sitting at his desktop computer in his home office on the main level of the house, while Andi was sitting with her laptop at the desk in her hotel room. Alex and Andi had passively logged on to the Oovoo program and David Sedaka had then invited each of them to join. All they had to do was click “Accept” and the three way conference was up and running.

  “It works like this. First of all, the original jury selection program was written in such a way that it didn’t have to use it’s own database. It logs on to the databases for voting and driver’s registration in the relevant district of the State and take the names of all prospective jurors in that district from both databases. That way it’s assured of the most up-to-date voter and driver records.”

  “OK,” said Alex, nodding.

  “The next thing it’s supposed to do is screen out any duplicates – that is any names that appear on both the voting register and the driver’s license records. There are usually quite a lot. So far so good?”

  “I’m still with you.”

  “All right, the next stage is to screen out persons known to be ineligible. That means people in prison, people with felony convictions or recent misdemeanors, etc. All clear?”

  “Absolutely.”

  David was being brisk about it, Alex gave him credit for that. He was also being careful not to go too fast, summarizing each stage quickly and then stopping to make sure that Alex had understood.

  “Okay finally when all that’s done, the algorithm picks the jurors using a randomization procedure that I told you about before to get the initial random number.”

  “OK, I understand all that,” said Alex impatiently. “But how has it been tampered with?”

  “Well remember I said that first it draws up the list of potential panelists living within the relevant district. Then it cuts out the duplicates from the list before going on to make the actual final selection.”

  “Yes?” said Alex hesitantly.

  “Well I don’t know if this is the result of tampering or just bad programming, but what actually happens in the program is that it doesn’t cut out the duplicate names from the overall list before it draws up the panel. Instead it draws up the panel first and only then cuts out the duplicates from the actual list of panelists if there are any.”

  “Holy shit!” said Andi

  “Well does that make a difference?” asked Alex, confused.

  David was about to answer when they heard another sound from Andi, this time somewhat muffled.

  “Oh hi Gene, I’ll be with you in a minute.”

  “Hi Andi,” Gene’s voice came back, even more muffled.

  Alex was surprised.

  “I didn’t know…” he trailed off into silence.

  “She came up to join me for the weekend. Instead of me going back to LA.”

  “She just got there?” asked Alex, confused.

  “No she came up yesterday evening. She was just went out to get breakfast while I was taking a shower.”

  “Okay, well anyway,” Alex pressed on, “how does it affect the program if it cuts out the duplicates from the original list or the panel. It still cuts them doesn’t it?”

  “Do you want me to explain it David?” asked Andi.

  “If you want to.”

  “It’s all a matter of statistics. It means that people who are on both the voting registration and the driver’s registration are more likely to be chosen. And because blacks are under-represented on the voting register – or at least were – it significantly reduces the likelihood of them being chosen for jury service.”

  Alex was struggling to take it all in.

  “And you think this could explain the discrepancy on the panel we had at the start of the trial?”

  “That was probably a pretty severe case,” said Andi. “The discrepancies that I discovered in my research are somewhat less extreme than that. But when combined with other factors like African-Americans being excused more easily from jury service upon request, I think we have a credible explanation of the extent of the problem.”

  Alex was still confused.

  “I don’t understand. Are you saying that lots of factors caused the problem?”

  David stepped in.

  “I think that what Andi is saying – and I would agree – is that this defect with the software has made a significant contribution to the problem. There are other factors that have aggravated the problem – factors that are quite well-known in certain jurisdictions. But the problem wouldn’t be nearly so big if it wasn’t for the peculiar way that this software deals with duplicate names.”

  Alex could finally permit himself to smile.

  “We’re going to have to take this to the judge. We’ve finally got the proof.”

  And with that, they ended the three-way conference.

  “Good news?” said Martine, as she slinked into the room in a T-shirt and black lace panties, carrying a tray with some sheets of paper and two cups of coffee.

  “You should know,” said Alex with a smile. “You were eavesdropping.”

  “I was not!” she said with mock indignance.”

  “Honey, I know you. You’re a reporter – as well as being a woman. That means you can’t help yourself.”

  “Well for your information what I was actually doing was looking through these worksheets from the lab’s log-book.”

  “What?” he blurted out as he snatched the papers from the tray. “That’s a privileged document, practically spilling the coffee in the process. It’s not supposed to be looked at by anyone outside the defense team – least of all a reporter.”

  “I already told you. I’m not on duty.”

  “You’re on duty twenty-four, seven. Like I said, I know you.”

  “Then you should know that my word is my bond.” And just to twist the knife she added: “like a lawyer.”

  “Like a gangster, more like,” said Alex, his tone still gruff. But he couldn’t conceal the smile on his face.

  “Well in this case, I’m acting more like a paralegal for the defense, because I’ve actually discovered something that might be useful.”

  Alex had been about to come back with another mock-angry response, when he was stopped by his sudden understanding of Martine’s words.

  “What do you mean?”

  “Take a look Steven Johnson’s last entry before he did the amplification on the nail clipping sample.”

  Alex flipped through the pages and scanned the relevant lines.

  “He checked out reference sample for Elias Claymore.”

  Alex thought about this for a moment, sensing where this was going. Martine smiled and nodded.

  “Why would he need to do that? And then look at when he checked it back in.”

  Alex could hardly believe what he was reading.

  “Just four minutes later.”

  Monday, 24 August 2009 – 10:15

  “And how does that amount to racial discrimination?” asked Justice Wagner.

  She was sitting at her desk, in her chambers, on Monday morning, with Andi, Alex, Sarah Jensen and Nick Sinclair. A court stenographer also sat in the room. Although this hearing was being heard in camera, it still formed part of the record and therefore the proceedings had to be transcribed, in case the judge’s decision became the subject of an appeal by one of the parties.

  Alex had filed the dismissal motion as soon as the morning session opened, but left Andi to do the talking, as she had a better understanding of the technical aspects of the issue.

  “Your Honor,” Andi continued, “It is a well-known fact that African-Americans are less likely to register to vote than European Americans. That’s why the state tries to even the odds by using driver’s license records. This problem with the jury selection software effectively undermines that equalization measure and causes African-Americans to be under-represented on jury panels and thus on juries. This is clearly in breach of the sixth and fourteenth amendments.”

  Justice Wagn
er raised a skeptical eyebrow and turned to the prosecutors.

  “Do you have any response to that?”

  Sarah looked over at Sinclair, to give him the first chance to respond. He nodded and took his cue.

  “I understand the essentials of the defense argument. However, I would remind them that the fifteenth amendment right to register to vote has been enshrined in the Voting Rights Act of 1965. If some African-Americans have chosen not to avail themselves of this right, then it is entirely by their own choice. Personally, I would encourage all citizens to avail themselves of all their rights. And I think it’s safe to say that recent political events have encouraged many more to do so. However, this is a free county and people cannot be forced. Voting is a right not a duty. I therefore cannot see that the exercise of this choice in a particular way by certain people is in any way a violation of the accused’s fourteenth amendment rights to the equal protection of the law.”

  Alex stepped in, knowing that however much Andi might know about computers and statistics, when it came to matters of constitutional law, she was out of her depth. That was his specialty and it was for him to explain it to the judge.

  “Your Honor, I have no wish to dispute the argument that the failure of some African-Americans to avail themselves of their voting rights is a matter of personal choice. However, I would argue that the issue that the Court must concern itself with here is not the choice itself, but rather the consequence of that choice as it affects a third party who has no control over their behavior, namely the defendant. Voting may be a civil right, but jury service is a civic duty. The failure to be available for jury service – in conjunction with this software flaw – effectively infringes the constitutional rights of defendants.”

  Alex realized that by putting his argument in the plural, he was jeopardizing his chances – as he was alerting the judge to the fact that the ruling would have monumental implications for other cases. So he quickly reverted to the singular.

  “The defendant is entitled to a fair trial by a jury that truly represents the community at large. The defense would further point out that the need to ensure at least the possibility, not of racial proportionality in the jury, but rather of racial diversity is the reason why jurors should not be excluded on grounds of race. Indeed, this was the basis for the decision to use driver’s registration records in addition to voter registration. As this need has already been recognized and enshrined in the law by the decision to use driver’s license records, it would be wrong to retreat from it now.”