David Kessler - No Way Out

But was it likely that some one inside the company would have the motive to do that and the means to avoid detection? Or had it been some very clever and devious outsider?

David had no way of knowing. All he knew was that he had discovered enough to be able to testify under affirmation that this software had been deliberately sabotaged .

He reached for the phone to call his father.

“However, I am not convinced by the arguments of counsel for the defense that the facts when taken as a whole amount to a violation of the defendant’s constitutional rights.”

They were in the judge’s chambers on Wednesday morning. Justice Ellen Wagner had heard the defense’s factual submissions about the software, which the prosecution did not challenge and had then retired for an hour to consider her judgment. Neither side wanted to present any more legal arguments, because they both felt they had covered that ground already.

When the lawyers trooped back into her chambers at the end of that hour, Justice Wagner looked solemn. But neither side had any inkling of which way her judgment would go. Now she was delivering her judgment, a devastating blow to the defense with the court stenographer present to record the decision.

“I accept, in the light of the defense’s uncontested claims of fact, that the jury-selection software has indeed been tampered with and that it is a strong possibility that this tampering was done with the express intention of reducing the likelihood of African-Americans and possibly other ethnic minorities from being selected for jury service.

“However, a strong possibility falls short of a probability , let alone a certainty. It is quite possible that the person or person’s who tampered with the software did so for reasons entirely unrelated to racial discrimination. They may, for example, have thought that they were improving the software in some way. In this regard I would note that the defense has failed to offer any evidence of fact that the modification of the software was done by someone outside of the company that developed the software in the first place. It is still within the bounds of possibility that the modification was done by some one within LegalSoft and that there is another more recent version of the source code within the company archives, that has been inadvertently overlooked.

“Furthermore, even if the modification was done by some one outside the company, and even if it was done for the explicit purpose of causing racial discrimination in the composition of jury panels, that would only be the motive of the malicious party who modified the software. That does not mean, however, that such was the intention of the Court Service or the government in using the maliciously modified software. Inasmuch as the test to be applied is intention-based and inasmuch as the Court Service appears to have used the software in good faith, I cannot see that this constitutes a sixth or fourteenth Amendment violation.

“I should also point out that in the case in Kent County, Michigan, cited by the defense — where there was an entirely different but also accidental glitch in the software that had a deleterious effect on the ethnic diversity of juries — they did not at the time select their juries from anything other than the voting register. Indeed they did not start using driver’s registration and state income tax records for jury selection in parallel with voter registration until the year 2007. Thus, it can be seen, there is in fact no constitutional requirement that any source of data other than voter registration be used for jury selection. As Mr. Sinclair has noted, the right to vote exists for all, even if some fail to avail themselves of it. And whilst I am persuaded by Mr. Sedaka that the effect of that choice, upon third parties such as the accused, is of some relevance, I am not , convinced that the magnitude of such effect is sufficient to find in favor of the defense in the present case.

“I would note, in this regard, that under-representation of African-Americans in the voting register is probably less prevalent now than it used to be at any time in the past, and almost certainly less prevalent in this state than in many other states.

“Finally, I would note that my reasons for this decision are cumulative and that it is for all of these reasons, taken as a whole , that I am minded to come to this decision.”

Oh very clever, thought Alex. Make it a mixture of law and fact to avoid giving the defense an opening to apply for an interim appeal.

“Accordingly,” the judge continued, “the defense motion for dismissal of the charges is denied.”

For a few seconds, nobody said a word. However, there was a subtle difference in how the parties took the ruling. While Sarah Jensen looked smug, Nick Sinclair looked decidedly uncomfortable. And while Alex remained calm, Andi gritted her teeth angrily.

“There’s nothing more we can do about it at this stage.”

Alex, Andi and Claymore were on the same floor as the courtroom, in a room reserved for meetings between lawyers and their clients. They were trying to explain the judge’s ruling, with Alex taking the lead. But it was rather hard, if only because the judge’s rulings had been so unexpected. But then again, perhaps it shouldn’t have been.

“Why is she so hostile?” asked Claymore.

“She wants to prove she’s color blind,” said Alex.

“That’s bullshit!” Andi cut in. “She doesn’t have to prove Jack shit — and she knows it!”

“Then what’s your theory?”

“It’s ‘cause she doesn’t want to take the fall when the shit hits the fan. She’s probably hoping the prosecution screws up some other way.”

“Why?” asked Claymore, confused.

“’Cause that way they’ll be no appeal.”

“So wait a minute… you can appeal?”

“Yes, but not an interim appeal. We have to wait for the verdict.”

“And if I’m found guilty and we do appeal?”

“Then it’ll go all the way to the Supreme court and when it does, they’re gonna have to reopen thousands of cases. That’s what Justice Wagner’s afraid of.”

“What I mean is… what are my chances… on appeal

There was no disguising the fear in Claymore’s eyes. Andi let Alex reply.

“The Supreme Court is quite conservative. They’ll resist it. But if we can create enough of a stick, we’ll have a whole lot of other law firms joining us. It could produce a groundswell that’ll seriously rock the boat. That’s what Andi meant about the judge hoping the prosecution screws up. If she can find some other grounds to dismiss — nothing to do with jury selection — then my guess is she’ll take the bait. If not… it’ll go to the jury.”

“And what are my chances with them?”

Alex shook his head.

“I gave up trying to second-guess juries a long time ago.”

He looked at Andi.

“Which leads to the next question: to take the stand… or not to take the stand.”

“I want to testify.”

Alex was shaking his head.

“That may not be a good idea.”

“I don’t have a choice. I need to show them I’m human.”

“It could backfire.”

“If I don’t do it, I’m burned. Look… they’ve seen the girl… and they feel sorry for her. Hell, I feel sorry for her! She could be their daughter. I need to show them I’m human too.”

Alex looked at Andi, appealing to her to explain.

“It’s not as simple as that. Let’s say Sarah Jensen gets to cross-examine you.”