David Kessler - No Way Out

“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.”

“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 Wagner 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.