David Kessler - No Way Out

“The defendant is entitled to a fair trial by a jury that truly represents the community at large . The defense would further point out that the need to ensure at least the possibility, not of racial proportionality in the jury, but rather of racial diversity is the reason why jurors should not be excluded on grounds of race. Indeed, this was the basis for the decision to use driver’s registration records in addition to voter registration. As this need has already been recognized and enshrined in the law by the decision to use driver’s license records, it would be wrong to retreat from it now.”

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.”

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.