David Kessler - No Way Out

Martine Yin was standing in front of a news camera giving her report, while a group of women behind her demonstrated outside the court building, shouting slogans demanding justice for rape victims.

“Cross-examination had been expected to last several days, but appears to have been cut short to avoid creating any more sympathy for the alleged victim.”

Andi was watching the report via the internet on the computer at her desk in Alex Sedaka’s law office when she heard a knock on her door.

“Come in,” she said, not looking up.

The door opened and Juanita walked in with two ice cold cans of diet coke.

“Oh hi Juanita.”

“How are things going?” asked Juanita, pulling up a chair and practically yanking the ring out of her diet coke can.

“Okay. Still slogging away trying to make sense of these demography and jury stats.”

“I thought you’d put that on the side.”

“Alex wants me to. He thinks we can break the prosecution case with old-fashioned courtroom methods. But I’m not so sure. And in any case there’s something not quite right going on. And I want to know why.”

Part of the cause of Andi’s obsession was the feeling that some one was operating against her in the background. All her efforts at demographic analysis seemed to have come to nothing when she walked into that courtroom and looked at the jury panel. To add to that, the obscene messages she had received had both angered and frightened her. She sensed that there was an enemy out there trying to stop her — and she was determined to stand up to that enemy.

“What exactly are you hoping to find?” asked Juanita.

“Well firstly, I guess I want to rule out any other explanation. But the more I look the more obvious it seems that the other explanations don’t work.”

“Maybe you just haven’t considered the right one.”

“Like what?”

Juanita shrugged and her eyes squinted as she gave Andi an awkward, embarrassed smile.

“Like whatever you haven’t thought of. If I knew, then one of us would have thought of it and we wouldn’t be having this conversation.”

“Great!” said Andi at the wry humor.

“What did David say, when you phoned him?”

“David? Oh Alex’s son. He told me about some case in Kent County, Michigan a few years when they found a glitch in the software that had been running for eighteen months. It excluded the higher number zip codes — which just happened to be the ones with the black population.”

“And what was the outcome?”

“Well I looked up the case and it turned out that the Michigan Jury Commission determined that the error was accidental so it didn’t result in any successful challenges to convictions. But I did a broader internet search and found that the Grand Rapids area has been plagued by other problems concerning minority representation in jury pools. They found things like greater laxity of standards in requesting jury exemption from black applicants than whites and also problems with which they were summoned to appear at.”

“And is it possible that that’s what’s happening in Alameda?”

“Well first of all it isn’t just Alameda. It’s… not exactly every county in the state, but certainly quite a few of them. I mean I haven’t yet been able to check all the counties, but I’d say around a third of the ones I’ve checked seem to have the same problem. The stats vary but it’s all to within one standard deviation.”

“It’s strange that it should be only a third.”

“Well no, that’s the other thing. You see not every county uses the same jury selection software. I’ve checked up online and there are at least four companies that supply jury selection software. I mean software for the courts, not the software that lawyers use to help with the voir dire.”

“And?”

“Well I was wondering if maybe the ones who are having the problem are all using software from just one of these companies and the ones who aren’t are using software from the other three. In other words, maybe one of the companies is selling defective software.”

“Have you checked it out?”

“I’ve tried to. But it seems that nobody in the court administration knows what software they’re using and nobody knows who does know — at least nobody I can get on the phone.”

“Well I mean somebody must know! And they can’t just refuse to tell you.”

“Well the problem is no one seems to know. They’d have to go back through the court admin financial records, to when the software was purchased. And no one wants to be bothered with that. Also the courts are exempt from the California Public Records Act, except for statements of itemized expenditure. So I requested statements from every county in the State from five years ago. Hopefully we’ll find it listed. But they have up to ten days to comply. And some of them have even written back to invoke the statutory fourteen day extension And that’s time we can’t afford. So far only one of the counties has got back to me.”

Juanita smiled.

“And is it one that has the low minority stats or one of those that doesn’t?”

“One that doesn’t.”

“So why don’t you presume that the problem is with software from one of the other three companies — I mean not the one used in the county that got back to you?

“That’s exactly what I do think. But until I’ve got responses from the others I don’t know which and that means can’t prove anything.”

“No but can’t you in the meantime, analyze the software from those three other companies? Or get David to?”

“I got the impression that David didn’t really have the time. He only agreed to help because his father wanted him to. Besides, there’s still the problem of getting the software. We still don’t know which of the other three companies its from. And whichever, it still comes from a private company. That means its proprietary, and using the Public Records Act will be a problem.”

Juanita thought about this for a moment.

“They’re a government contractor. Surely they’re still subject to an CPRA request?”

“They’re a contractor to the Courts and like I said, the courts are exempt from the act, apart from expenditure statements.”

“Maybe it would quicker to buy copies of the software from the various companies?”

“Probably would. The trouble is then all we’d have is the executable — or at best the object code.”

Juanita was shaking her head.

“Now you’ve lost me.”

“We need the source code to figure out what’s going wrong, if anything.”

“Oh I see.” Juanita was actually more knowledgeable about computers than she liked to let on. She had just taken a moment to get up to speed with Andi’s remark. “But isn’t it possible to — what’s that word — decompile it or something like that?”

“It is. And I can probably get a freeware decompiler online. But the output from a decompiler is so cryptic that it takes an experienced computer programmer to understand it.”

“And you’re not an experienced programmer?”

“Unfortunately not,” said Andi. “Barely more than a beginner.”

Andi raised her eye brows quizzically.

“Oh sorry, I guess I should explain. I started a course in C++ programming, but dropped out.”

“I’m sure David can help.”

“Until we’ve got the software, that’s a moot point. Also it’s not like off-the-shelf software. It’s very expensive and you pay for the number of seats.”

“Seats?”

“The number of parallel users. That means they’ll want to know where and in what manner we’ll be using it. And what are we going to tell them? ‘We want to analyze your software to see if it has a defect that causes African-Americans to be under-represented on juries.’?”