No Way Out

by David Kessler

  When Alex fell silent, Sarah Jensen joined in, quick to cash in on the psychological weakness in Alex’s arguments.

  “Your Honor I would point out that a ruling in favour of these arguments would have dangerous implications not only for other cases pending but also for past convictions by juries selected by this–”

  “I am well aware of that!” Ellen Wagner snapped back in angrily. “And it is not something that I can take into consideration in reaching my decision.”

  Nick Sinclair leaned forward hesitantly.

  “Your Honor there is one other aspect of this matter to consider.”

  “Yes?” the judge prompted.

  “The defense has not yet had a chance to view the source code from the original jury selection software. Their entire argument has been based on their analysis of the executable program that they have decompiled.”

  “But that’s the one that the Court Service is actually using,” said Andi.

  “Yes but we don’t know whether the original was like that too.”

  “What are saying?” asked the judge, looking squarely at Sinclair.

  “I’m saying that if the original source code is different to the current version, then the defense can argue that the software has been tampered with deliberately and then the People would have to concede that this shows that any discrimination arising out of the tampering is indeed intention-based. But if on the other hand the original source code is substantially the same, then it would imply that the problem is simply a flaw in the program design, and any adverse consequences to ethnic minorities would thus simply be a by-product of this flaw. As the Court is applying an intention-based test of discrimination, in accordance with the earlier precedents, and not merely an effects-based test, the Court does not yet have any basis for granting this motion. Only if and when the defense is able to prove that the software has been modified by some unauthorized party outside the company that designed it, can they argue that there is evidence of intention-based discrimination.”

  The judge turned to the defense lawyers. Andi looked crestfallen. Alex’s face and body language showed no emotion.

  “Assuming that LegalSoft’s appeal is blocked and you get the source code tomorrow, how soon after that do you think you can have a definitive answer to this question?”

  Alex turned to Andi. This was her territory – and David’s.

  “I’d say that if we get the software my Ten O’clock tomorrow, as per the ruling, then we can have a definitive answer within a few hours. We can rename the variables and arrays in the decompiled version to match their counterparts in the original source code and then just run a straight text comparison to look for any changes.”

  “So you think you can come up with a definitive answer by, say, Wednesday morning.”

  “I’m sure of it,” said Andi.

  The judge turned to the prosecutors.

  “Will the prosecution want a copy and a chance to call its own expert?”

  Nick Sinclair looked at Sarah. She was leading the case and it was her call.

  “No Your Honor. But could I ask if, in the event of the defense establishing that there was such tampering, is the Court minded to grant the defense’s motion for a mistrial, bearing in mind the People’s other arguments – and if so will this be with or without prejudice?”

  Sarah Jensen wanted the reassurance, that if a mistrial was declared, they would at least have the chance to bring a new trial with a fresh jury.

  Ellen Wagner thought about it for a moment.

  “I will take this matter under advisement. There’s no point jumping the gun until we know whether or not this was deliberate tampering.”

  The judge was about to adjourn the hearing, when Alex remembered something.

  “There was one other small matter, Your Honor.”

  “”Yes, Mr. Sedaka,” said the judge, sighing irritably.

  “The defense would like to call Steven Johnson, the lab technician who processed the scene sample from the nail clippings.”

  Sarah Jensen became highly animated at this.

  “Your Honor we have had no notice of this – and Mr. Johnson is not on the defense witness list. If the defense wanted to call him, they had ample time to notify us.”

  “Your Honor, something has come up that makes it vital to the defense case that we call this witness – if the trial goes ahead. In any case, the prosecution has forty eight hours before the trial continues to look into this witness. Furthermore it’s not as if this witness is unknown to the prosecution. He works at the very lab that they have relied upon in this case. And he was the lab technician who processed the evidence sample upon which the prosecution has placed such heavy reliance.”

  “Yes, I can’t see any valid reason to deny this request, Miss Jensen. You may call Steven Johnson Mr. Sedaka. Will that require an adjournment for the five day notice period Ms Jensen?

  “Mr. Johnson is an employee of the state and I’m sure the Ventura lab would be ready to release him at short notice.”

  “In that case this Court is adjourned until ten O’clock Wednesday morning.”

  Monday, 24 August 2009 – 11:50

  The forensic laboratory in Ventura was as busy as it had been the day they had processed the nail clipping sample from the Bethel Newton rape case. The initial evidence samples from the vaginal swabs had already been processed with the intention of uploading the profile into the National DNA Information System database and cross-checking against other crimes. But after the failure to find any sperm DNA had thwarted that. They would have pressed ahead if they had felt confident of finding any autosomal DNA from the perpetrator in the crime-scene sample. But they realized that the nail clippings were probably only good for Y-STR DNA, and this could not be uploaded to the NDIS.

  So it was only when they had a suspect and after they had processed the reverence samples that they got round to the amplification, separation and detection of the nail-clipping evidence sample.

  Now, today, it was like any other day at the lab. Evidence was checked in, registered, filed, in some cases processed and reports written up. It was like a factory. The staff had no emotional attachment to any of the cases, whether it was about blood alcohol, illegal substances or DNA. They simply did their bit, according to the work rota assigned to them.

  Consequently, Steven Johnson was thoroughly engrossed in his work, when the process server appeared. Ordinarily such unauthorized personnel would not have been allowed into the lab. The server was a bailiff attached to the court and as such was able to flash her credentials at security and get waved through without even putting in a call to the DNA section where Steven Johnson worked.

  “Steven Johnson,” said the bailiff, fulfilling the technical requirement that she identify the subject by name, even if he had already been pointed out to her.

  “Yes?”

  She noticed that he was smiling. Young men often smiled when they saw her. She took advantage of his disarmed state to hand him the envelope, that he took without question but with a look of curiosity in his eyes.

  “You’ve been served.”

  The bailiff was such a battle-hardy and seasoned veteran of this kind of mundane leg-work that she didn’t usually pay attention to the recipient’s reaction to being served with a subpoena or court order. The only thing she was on guard against was the possibility of the recipient becoming violent. In this case, Johnson’s slight frame and meek manner precluded that danger. But still, she noticed that even before Johnson opened the envelope, he already looked afraid.

  Monday, 24 August 2009 – 21:30

  The hotel room was in semi-darkness, the light coming from a floor lamp. Andi was sitting on the couch working at on her laptop computer. It had been a frustrating day, culminating in the judge postponing her decision on the dismissal motion. Now they had to wait till tomorrow to get the source code.

  And there was no guarantee that they would get it. LegalSoft would almost certainly file an appeal. Whether the a
ppeal court would agree to here it was another matter. But if they did then they would grant a stay and set a date for a hearing with all parties present. That could drag the matter out for another week. The best thing they could hope for was that the appeal court would refuse to hear the appeal or grant a stay and the company would have to hand it over by tomorrow morning at ten. The trouble was that hope was all they could do. They certainly couldn’t count on it.

  Of course the defense could also go on the offense and file an interim appeal against the court’s refusal to grant their dismissal motion based on what they had already found out. But there was no guarantee that such an appeal would be granted – the judge’s reasoning regarding the intent-based test was legally sound. Besides, it was premature. It was just that even waiting till ten O’clock tomorrow was maddeningly frustrating for Andi.

  In the meantime, tonight, she just wanted to unwind and forget about it. So she logged on to her Internet account and downloaded her E-mail. There were several messages from her Internet friends from Europe and the Far East. But there was also one that struck fear into her heart yet again when she saw the name: Lannosea:

  So your dirty little plan to get that rapist shit-bag off on a technicality didn’t work? And that leaves you back at square one, you cheap little cunt. That’s what your sisters think of you, you know. That’s really all you are! You didn’t really think you’d away with it did you? By the way, I was the one who changed the software to keep the niggers off juries. And if you try and fuck with me bitch, you’ll be fucking with the wrong woman. You understand?

  Lannosea

  The language was getting more vitriolic. This person was angry. But who was it? The name Lannosea – and her reasoning about it being another of Claymore’s victims – suggested that it was a woman. But the language was what one would expect of an ultra-misogynistic man.

  And how did Lannosea knew about her attempt to get Claymore off “on a technicality?” How many people knew about that? And which of them could be doing this? Which of them might say something indiscrete to let other people know?

  She couldn’t think. Her head just wasn’t clear enough. She needed help; she knew that now. She reached for the phone and called David Sedaka. He knew about computers and the internet. He could help her. And she could trust him, she knew that.

  “Hi listen David, it’s Andi here… Andi Phoenix… fine, how are you… good… listen I need your help, that is, I’d like your help… if you think it’s something you can do. But you must keep this completely secret from everyone, at least for the time being.”

  Over the next few minutes, they set up a plan to try and trace the person sending the messages. It started with her copying the messages she had already received to him, including the full internet header. This showed the path that the messages had taken over the internet. It couldn’t trace the message all the way to its source. But it might just lead them back to the service provider for the place where the messages were sent from. This would probably be something like an internet café. But at least it was a start.

  The next thing she had to do was give David direct access to her internet account. This entailed a loss of privacy. But he hade it clear that this was something she would have to do if she wanted the person caught.

  There was a knock on the door, shaking Andi out of her concentration. Andi looked up.

  “Who is it?”

  “Your lover.”

  Andi tossed the laptop aside, raced to the door and opened it.

  “You were supposed to be going back to LA,” said Andi as Gene stepped forward.

  “You sound disappointed,” Gene replied, encircling Andi’s waist with her arms.

  “I’m sorry. I didn’t mean to,” Andi replied, sliding her hands up Gene’s arms and interlocking her fingers behind her lover’s neck.

  “I couldn’t stay away from you babe.”

  Gene was about to kiss her when Andi turned away.

  “But don’t they need you back at the rape crisis center.”

  Gene looked long and hard into Andi’s eyes and tightened her grip around her, emphasizing that she was a prisoner in her arms.

  “They need me all right. But right now I need you more… and I think you need me to.”

  There was a questioning tone in Gene’s words, and Andi felt a slight, barely perceptible, slackening of Gene’s grip – as if Gene too needed reassurance.

  “Of course I need you.”

  There was a few seconds of hesitation and then their arms encircled one another and their lips met in a tender but hesitant kiss.

  Tuesday, 25 August 2009 – 10:30

  David Sedaka was at his desk in his office at the Old Le Conte Hall when he got a phone call from his father.

  “Hi dad.”

  “Busy?”

  “I’m always busy,” said David, looking around his cluttered office in the Le Conte Hall.

  “We’ve got the source code.”

  “Great! Send it over!”

  “Can you look at it right away?”

  “Like I promised.”

  Barely a minute later, David had downloaded the source code and was opening it in a word processing program on his Linux-based system. Then it was a simple of matter of selecting the “Compare with” option and selecting the file in which he had stored the decompiled version of the program. The difference were highlighted in red, with a line through the deletions and an underline beneath the insertions.

  As soon as he scrolled down, he could see that he was right. The original source code version correctly removed the duplicates from the combined temporary database before selecting the panel. For that reason it had a large area for the temporary database, but a small area for the array that held the names and details of the venire panel. But on the decompiled version this was reversed. The array had been deliberately enlarged to allow for the theoretical possibility that all the names would be duplicated. And the removal of duplicates took place after the panel selection was made, with the address pointer for the program redirected to the jury panel array instead of the temporary database.

  And that could only mean one thing: this program had been deliberately tampered with! Some one had evidently modified the source code and then recompiled the program and distributed the modified version.

  But how could they do that? How could they get the Court Service in many counties to accept the modified version of the program? Could it have been an inside job? Some one within the company?

  That would explain how they obtained access to the software – and also might explain how they had managed to get the Court Services to accept it.

  But was it likely that some one inside the company would have the motive to do that and the means to avoid detection? Or had it been some very clever and devious outsider?

  David had no way of knowing. All he knew was that he had discovered enough to be able to testify under affirmation that this software had been deliberately sabotaged.

  He reached for the phone to call his father.

  Wednesday, 26 July 2009 – 11:40

  “However, I am not convinced by the arguments of counsel for the defense that the facts when taken as a whole amount to a violation of the defendant’s constitutional rights.”

  They were in the judge’s chambers on Wednesday morning. Justice Ellen Wagner had heard the defense’s factual submissions about the software, which the prosecution did not challenge and had then retired for an hour to consider her judgment. Neither side wanted to present any more legal arguments, because they both felt they had covered that ground already.

  When the lawyers trooped back into her chambers at the end of that hour, Justice Wagner looked solemn. But neither side had any inkling of which way her judgment would go. Now she was delivering her judgment, a devastating blow to the defense with the court stenographer present to record the decision.

  “I accept, in the light of the defense’s uncontested claims of fact, that the jury-selection software has indeed been ta
mpered with and that it is a strong possibility that this tampering was done with the express intention of reducing the likelihood of African-Americans and possibly other ethnic minorities from being selected for jury service.

  “However, a strong possibility falls short of a probability, let alone a certainty. It is quite possible that the person or person’s who tampered with the software did so for reasons entirely unrelated to racial discrimination. They may, for example, have thought that they were improving the software in some way. In this regard I would note that the defense has failed to offer any evidence of fact that the modification of the software was done by someone outside of the company that developed the software in the first place. It is still within the bounds of possibility that the modification was done by some one within LegalSoft and that there is another more recent version of the source code within the company archives, that has been inadvertently overlooked.

  “Furthermore, even if the modification was done by some one outside the company, and even if it was done for the explicit purpose of causing racial discrimination in the composition of jury panels, that would only be the motive of the malicious party who modified the software. That does not mean, however, that such was the intention of the Court Service or the government in using the maliciously modified software. Inasmuch as the test to be applied is intention-based and inasmuch as the Court Service appears to have used the software in good faith, I cannot see that this constitutes a sixth or fourteenth Amendment violation.