David Kessler - No Way Out

“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.

“Actually the opposite is probably the case Your Honor.”

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.”

“The arguments took place not only outside the presence of the jury, but also the press.”

Martine Yin’s replacement — a twenty something blonde — was reporting on the latest events from the Court. She had been pulled, at short notice from her duties as the weather girl and she thought this was her golden opportunity. But she didn’t really have a firm grasp of what she was reporting on, because although she had followed the case on TV, she didn’t really understand the finer points of criminal law. Most of what she was reporting now, was on the advice of Martine, who had kindly agreed to advise her, to help make sure that her reports were accurate and clear.

“We do not know what was decided in these discussions, but we can confirm that in addition to the lawyers for Elias Claymore and the prosecution, there was a third party present in the judge’s chambers. This third party was believed to be a lawyer representing LegalSoft , the software company that supplied the Alameda court — and many other courts in the state — with software used by the court service. This includes jury selection software.

“Earlier on in the trial — on the first day, in fact — co-counsel Andromeda Phoenix objected to the entire panel from which the jury was to be chosen on the grounds that African-Americans were under-represented on that panel. Ms. Phoenix’s objections were overruled, but the matter could be raised again on appeal.”

Gene Vance used the remote in her left hand to turn the sound down on the TV, while picking the phone handset in her right hand.

“Hi, I’d like to book a flight to San Francisco International… yes, this afternoon.”

In court, on Friday, the prosecution was rounding off its case. They had presented Bethel’s heart-rending testimony, albeit dented by Andi’s surgical cross-examination. They had called the medical expert who had examined Bethel to confirm that she had internal injuries consistent with rape. This would go a long way to corroborating Bethel’s claim that she had been raped. But to bolster her identification of the rapist, they had relied on Victor Alvarez, who had been forced to concede that because of the quality and type of DNA, the statistical probability that Claymore was the rapist was not as strong as they would have liked it to be.

So now, Alameda ADA Nick Sinclair was questioning Albert Carter, an independent eye-witness, unconnected to any of the other parties, in an effort to put Elias Claymore at the scene of the crime. The idea was that even if the defense could attack any and all of the elements of the People’s case, the prosecution could counter that it was the combination of several different types of evidence that made their case so strong: victim, eyewitness, medical and DNA. And if Claymore took the stand, they could bring up his priors for similar offences.

“Then I started walking over in the direction of the screaming,” the elderly Carter was saying. “But I didn’t want to get too close… I guess, I was afraid.”

“And then what happened?” asked Sinclair.

Carter hesitated, looking around the court nervously.

“Well I hid behind a tree, just in case I was seen. I mean I didn’t want to be seen.”

“And what happened then?”

It was clear that Carter needed prompting, or at least encouragement. But the ADA knew that he couldn’t be lead the witness. This was direct examination and leading questions were not allowed. Sinclair knew that he was getting there, but slowly. However, he was growing increasingly worried about how he would stand up to cross-examination. With a little bit of gentle coaxing he was telling the jury what he saw. But how coherent would he sound when subjected to one of Alex’s withering cross-examinations?

Of course Alex would have to go carefully: he wouldn’t want to create sympathy for Carter. But Sarah Jensen knew Alex very well. Even with a few quiet, polite questions he could completely disarm a witness and throw him into confusion. And Carter was a timid old man to begin with.

“Mr. Carter?”

“Then?” echoed the witness nervously. “Well that was when he ran passed me.”

“ Who ran past you?”

“Well… the man.”

He was getting nervous.

“Could you tell us if you see the man in the courtroom?”

Carter pointed to Claymore with an unsteady hand.

At least it brings out the jury’s sympathies, thought Nick Sinclair.

“That man over there.”

“Let the record show that the witness indicated the accused Elias Claymore.”

“So ordered,” said the judge.

“And from which direction did he run?”

“Well… from the direction of the woman screaming.”

“And where did he run?”

“To a car. He got in the car and drove off.”

“And what sort of car was it?”

“One of those European cars. I think it was blue… I didn’t get the number.”