No Way Out
Page 27
It was later, when they were clearing away the plates and loading up the dishwasher that the doorbell rang Alex went to answer it, looking through the spy hole first. It was a man in a brown uniform, a courier. Alex had been expecting this. He opened the door and signed for the envelope. In his excitement, he was already ripping it open as he walked back to the dining room.
“The DNA results?” asked Martine, meeting him in the corridor?
“Yes.”
Alex flipped past the first page to look at the crucial second page with its results. And what it showed was not good news.
Locus
B. Newton (index fingernail)
Elias Claymore (ref sample)
Louis Manning (ref sample)
19
17
17
17
385a/b
16, 19
16, 19
16, 19
388
12
12
12
389-1
13
13
13
389-2
31
31
31
390
21
21
21
391
10
10
10
392
11
11
11
393
16
16
16
426
11
11
11
437
14
14
14
438
11
11
11
439
12
12
12
447
28
28
28
448
24
24
24
460
10
10
10
H4
11
11
11
YCA2a/b
17, 19
17, 19
17, 19
450
8
8
8
456
16
16
16
458
18
18
18
464 a/b/c/d
13, 16, 17
13, 16, 17
13, 16, 17
Much to Alex’s disappointment, it showed that the Y-STR profile of the sample marked as “Reference, Elias Claymore” did match the Sample, with no exclusions. Not that this made him guilty. They had already established that the chance of a random match between the evidence sample and an African-American was 1/500 and that was confirmed on this report too. It’s just that after the way he had exposed Steven Johnson’s tampering, it was bitterly disappointing.
The question was, could he block this evidence? Technically, the prosecution had rested their case. Even if the case wasn’t dismissed, Alex could argue that the prosecution could not introduce this report, as they could not now introduce any new material, except to rebut new evidence. And the defense had offered nothing to rebut. They hadn’t offered any evidence that purported to show that the DNA was not from Elias Claymore. They had merely discredited the evidence purporting to show that it was.
On Monday morning he would move that this new evidence be excluded. If the judge granted the motion, the prosecution would then move to dismiss the case without prejudice, intending to go for a retrial. Alex would then argue that there were no grounds for dismissal, as it was not a procedural error in the trial, but merely a careless mistake at the lab. He was already planning his argument:
“The prosecution have introduced flawed evidence that had now been discredited and they are now looking for a second bite of the cherry. But that is not what the law says, Your Honor. The law says that if the prosecution were sloppy with the evidence they introduced then they must live with the consequences.”
But then he noticed another line on the report that stated: “Neither Elias Claymore nor Louis Manning can be eliminated as suspects on a basis of this comparison. He flipped over to the grid with the comparison. So focused had he had been on comparing Elias Claymore’s line to that of the evidence sample, that he had missed the other line – that of Louis Manning. And the numbers of repetitions in that line also matched the evidence sample.
Then in the Frequency of Occurrence Estimates, it gave the figure for Caucasians as 1/4000, for Blacks as 1/500 and for Hispanics as 1/6500.”
So the cops or the DA had a second suspect? But who was this Louis Manning? And why was his name so familiar? Whoever he was, this report referred to him as a suspect. But he hadn’t been mentioned in the first report. Maybe he was some one who had come to the attention of the police since then. But why had Alex not been notified? Maybe it had only happened recently.
“What is it?” asked Martine, seeing the look on Alex’s face.
“There’s another suspect. And he also matches.”
“Let me see!” she said, snatching the report from Alex’s hand.
“Oh my God!” she blurted out.
“What?”
“It’s Louis Manning.”
“That name sounds familiar.”
“Good God! For a lawyer, you sure could use a bit more attention to detail. That’s the name of the man who tried to rape me!”
SEPTEMBER
Sunday, 30 September 2009 – 22:15
Paul Greenberg was sitting at the console of the network server looking at an information log-on the screen. It was one of the routine checks that he did at the start of his shift. He took his role as Systems Administrator very seriously, so the first thing he did whenever he started his shift was run a series of checks to find out in what state the system had been left by whoever was last on duty as Systems Administrator.
It was while he was making these routine checks that he noticed something unexpected. He leaned forward and peered intently at the screen. What he saw shocked him. It showed him logged on earlier during the day. That didn’t make any sense. He wasn’t even here at the time. He was on nights.
He typed in an instruction and called up another screen-full of information. Not only did the user log show him as logged on to the system, but the activity log even showed him uploading and downloading files – something that he hadn’t done all week. The only time he would download or upload files was if he was requested to help staff members of law enforcement agencies who were having trouble using the system.
A few more information requests typed in at the keyboard gave him a clearer idea of what had happened. Some one had accessed the system from outside, via the web server and not only gained “root” control over it, but from there gone on to gain access to the DNA database server via the network server. That could mean trouble.
He transferred his attention to the DNA database server and checked the activity log there. And what he saw filled him with horror
Some one had remotely deleted a file and replaced it with another.
That wasn’t right! The DNA server wasn’t supposed to be accessed remotely at all – and certainly not with superuser privileges. It was a Local DNA Database Index, with the emphasis on the word “Local”. It was only supposed to be used by the local DNA lab in the government center itself. Indeed one of the conditions for the LDIS being allowed to upload to the California SDIS and the NDIS in Washington DC was that they use dedicated, unswitched lines. But some hacker had evidently bypassed this by logging on to the web server for the building and maneuvering their way through the internal trusted connections. And what was worse – Greenberg realized – they had done so by impersonating him.
He had to tell some one. But at this time there was no one to tell. He had to find out more. He had a long night ahead of him.
Monday, 31 August 2009 – 10:15
It was Monday morning and once again the lawyers were in Justice Ellen Wagner’s chambers to deal with the issues arising out of the results of the DNA tests.
As they were all familiar with the results already, Justice Wagner was taking the initiative. Right now, she was speaking and the others were listening.
“We have now established that neither Elias Claymore not Louis Manning can be eliminated as suspects based on the DNA alone. As matters stand now, the jury are aware of the falsification of the original DNA evidence by Steven Johnson. As they have been made aware of this, it cannot be held that this will have a prejudicial effect against the defendant. However, the new evidence cannot now be introduced by the prosecution because the prosecution has rested its case.”
Sarah Jensen leaned forward.
“Your Honor, we would seek to introduce this as rebuttal evidence.”
Justice Wagner looked at Sarah Jensen with condescension bordering on contempt.”
“You’ve got to kidding Ms Jensen. There’s no way this could be considered rebuttal.”
“Steven Johnson was a defense witness Your Honor. It’s in response to his testimony. Therefore technically…”
She trailed off, realizing just how weak her argument really was. Justice Wagner spoke.
“This isn’t rebuttal of Steven Johnson’s evidence. This is new evidence. You’re not challenging the fact that the State’s own DNA testing was flawed by Steven Johnson’s carelessness and subsequent chicanery. You’re asking for a second shot to make up for the fact that your original DNA evidence was discredited.”
Sarah Jensen remained silent.
“I can understand your concern. You fear that if I declare a mistrial, even without prejudice, you won’t be able to persuade Bethel Newton to testify at the retrial after what she’s been though already. Mr. Sedaka, you’re also caught on the horns of a dilemma and you don’t know whether to push for a mistrial or not. I’ve made it clear that I won’t grant a mistrial with prejudice, but will simply order a retrial. You fear that if the case goes to retrial, Bethel Newton might yet be persuaded to testify and will be better prepared this time around. You also fear that a retrial will deny you the benefit of having discredited the prosecution’s DNA evidence and even open the door to the people introducing the new DNA tests, although you will, for your part, be allowed to introduce the fact that that the genetic profile also matches Louis Manning.”
“I can do that now, without a retrial, Your Honor.”
“Except that if you do, then I would have to rule that you have opened the door to the prosecution introducing all the results of the new tests including the fact that they match the defendant.”
“That’s not fair Your Hon–” Andi blurted out.
She was silenced by a slight motion of Alex’s index finger. The judge continued.
“It’s perfectly fair Ms Phoenix. In order to introduce the facts pertaining to Louis Manning, the defense will have to introduce the results of the new test itself. Once the defense does that, the prosecution will be able to introduce whatever else is in those same tests. There is no way that the results can be separated or isolated.”
“So the question that you both have to ask yourselves is would you rather continue or go to a new trial. As I have stated, I won’t grant a mistrial with prejudice. But I will consider either a mistrial without prejudice followed by a retrial or proceed with the present trial. In the event that you agree to proceed, I will leave it in the hands of the defense whether it wishes to introduce the new test results or not.”
“I don’t understand, Your Honor,” said Sarah. “Why should the defense have the prerogative of deciding about the admitting tests results if we agree to proceed?”
“Because as a matter of law, the prosecution has rested and cannot now introduce new evidence. This is a court of law Miss Jensen, not a court of whims.”
Now it was Alex’s turn to sound confused.
“In that case, Your Honor, why is the Court not making its own decision as to whether to carry on or go to a retrial.”
“Because, Mr. Sedaka, this issue has become very complicated. Although I ultimately have the authority to decide, I can see that this is a dilemma for both parties. Whatever ruling I make, some one is liable to be dissatisfied, possibly both of you. So I’m leaving the matter in your hands – yours and the prosecutor. I’m going to adjourn this hearing and give both sides an hour to try to come to some agreement. Then if you agree, we’ll do whatever you both agree upon.”
This was a very clever way to forestall subsequent objections – especially from the defense. There were pros and cons to both courses of action, and if the judge ruled unilaterally, they could lodge an exception for the record and then if the verdict went against them, they could appeal on the grounds that they had opposed the judge’s ruling. This way Justice Wagner was effectively giving the parties themselves the right to decide – albeit camouflaged under the guise of seeking agreement between the parties.
Of course they might still not agree. But the defense would have to make its position known. That meant they would have to make up their own minds where they stood in the face of this dilemma.
“What if can’t come to an agreement?” asked Alex.
“Then I’ll have to make a decision. But I will ask both parties to state their positions for the record – including their fallback position.”
Alex knew that he had to play for time. And he had to get some answers before he committed himself to a position that could land his client in prison for the rest of his life.
“Your Honor, these test results were the first time we were apprised of even the existence of Louis Manning, let alone his potential involvement in the case. As Your Honor may or may not know, Louis Manning – assuming that it is the same Louis Manning – was arrested for attempting to rape my… for attempting to rape a reporter who was covering this trial. Now he appears – somehow – to have become a credible suspect in this case. So much so, that the police or the DA decided to compare his DNA to the evidence sample. Before we are able to make a rational decision as to whether we would prefer to continue or start afresh, we would like to file a discovery motion for everything the prosecution has on Louis Manning as it pertains to criminal convictions and the reasons why his DNA was tested in this case.”
Sarah Jensen looked panic stricken.
“Your Honor that’s a pretty tall order at short notice.”
“We’ve wasted enough time on this. I see no reason why you can’t provide the arrest report and his record by, say, five PM tomorrow. And to give the defense the opportunity to study the material we will reconvene at ten O’clock on Wednesday morning.”
Monday, 31 August 2009 – 10:40
Victor Alvarez was at his desk in the corner office of forensic science lab when a tired and haggard looking young man walked in.
“Dr Alvarez? My name is Paul Greenberg. I’m the night Systems Administrator at the Ventura government building. I’m here about the LDIS server.”
“What is it?” asked Alvarez tensely. When the Systems Administrator on the graveyard shift walks, bleary-eyed, into the office of a Technical Leader at the forensic lab, it’s obvious that there’s a problem.
“It looks like somebody’s hacked in to database.”
Alvarez went into damage control model.
“Snooping or sabotage?”
“They deleted a file and replaced it with another.”
“Which file?”
“The new evidence sample from the Elias Claymore case.”
“Mother of God! How did they do it?”
There was a long pause before Greenberg spoke again.
“It looks like they used my ID.”
“Your ID?”
“Yes.”
“But how did they get it?”
“I’m still working on that. What I can tell you is that according to the user-log, they also downloaded Elias Claymore’s reference sample.”
“But wouldn�
��t they have needed your password?”
Again the embarrassed pause.
“Yes they did. But like I said, I don’t know how they got it.”
“Can’t you undelete the over-written file?” asked Alvarez.
“It’s not as simple as that. The original file hasn’t just had its title deleted: it’s been double-deleted – physically over-written.”
“Is that normal?”
“No it isn’t normal. But it’s been done. It looks like someone deliberately changed a file and then set out to destroy any trace of the original.”
“And when was this done? Before or after the last comparison between the suspect samples and the back-up crime scene sample?”
Greenberg looked at the activity log
“After the chemical analysis, but before the database comparison.”
“So you mean the last comparison was done using this tampered sample file?”
There was alarm in Alvarez’s voice.
“I’m afraid so.”
“Damn!” The frustration was mounting. “Okay, you say the evidence sample file was over-written. Does that mean it can’t be recovered?”
Greenberg thought for a minute.
“Well we do a backup tape every day at six p.m. but it looks like this tampering was done after the new profile was uploaded and before the back up was done.”
“So we’ve lost it for good! And the test was destructive so we haven’t got the sample anymore. Shit!”
“There is something else we can try. If I can take a look at the computer that was used for the scan, I can check the outgoing packet log for the upload to the LDIS server.”
“Does it keep that data?”
“Only as a temporary file. But when the system deletes it, it doesn’t do a double delete like the hacker did on the database. It just frees up the area of the disk for reuse. If there hasn’t been much more activity on that computer, I could recover the temporary packet log file with a standard utility and recover the raw data.”