Authors: David Kessler
“Your Honor, counsel is attacking a straw man. Our motion has nothing to do with the CPRA. It’s a subpoena motion for evidence relevant to the defense, pertaining to our client’s Sixth Amendment Rights. The Court has already conceded that if the defense can establish that there has been intention-based interference with the ethnic composition to the jury then it will amount to a Sixth Amendment violation. We have been able to establish some fairly severe statistical discrepancies but the only way we can establish their
cause
is to analyze the software. As to the secrecy element, we will of course be bound to refrain from disclosing what we discover outside the confines of the courts and we accept that. So
LegalSoft
have nothing to fear in that regard.”
“Your Honor,” Kenney continued. “This information could be prejudicial, as it could lead to law suits against
LegalSoft
– and could have other severe consequences to the smooth operation of justice.”
He smiled smugly at this, prompting a look of anger from Justice Wagner. But she contained her anger. What had antagonized her was that he was hinting that if the defense found anything wrong with the software could open the floodgates to appeals in criminal cases, leading to large numbers of convicted criminals – most of whom were probably guilty – being released onto the streets. In theory such people could be retried, but with the passage of time and fading witness memory – not to mention logistical problems – that would be unlikely in practice. But no judge could allow herself to be swayed by this argument. Ellen Wagner’s decision had to based on law and let the chips lie where they fall.
However, before that, Andi had something to say.
“Your Honor, if the software is defective, then it is right and proper that there
should
be lawsuits
–
”
“But not right and proper that our client should be forced to incriminate itself,” Kenney interrupted
“It isn’t incrimination if it’s a civil matter.”
“But there
is
no automatic right to access to trade secrets to help in a lawsuit against a private company.”
“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.”
“Thank you,” said Sinclair smiling with relief. “No further questions.”
The ADA sat down sat down. Carter was about to leave the witness stand.
“Oh just a minute,” said Justice Wagner. “I think counsel for the defense wants to ask you a few questions.”
Carter, turned back and re-entered the stand, looking somewhat disoriented. Nick Sinclair smiled inwardly at this. When Carter wilted under Alex’s bullying, it would create sympathy for him, and thus for Bethel too.
But after a brief conference at the defense table, it was Andi who rose to cross-examine. She flashed a reassuring smile at the witness. He knew that she was supposed to be the enemy. But she seemed so inoffensive that he was forced to smile back nervously.
“Mr. Carter,” Andi began gently. “You say that you were hiding behind a tree is that right?”
“That’s right.”
“And were you hiding your face as well?”
“I don’t understand.”
“Well if you stuck your head out from behind the tree, then wasn’t there a danger that some one might see you
–
the very thing you were trying to avoid?”
“But I didn’t stick my head out. I kept it hidden.”
“So how did you see the man when he ran past you?”
“Well he ran past the tree. I saw him when he ran past the tree.”
“Are you saying that he turned to look at you as he ran past the tree? Like he knew you were there?”
“No. He just ran straight past like a bat out of hell.”
“Like a bat out of hell?”
“Yes.”
“So he didn’t turn to look at you.”
“I just said he didn’t,” snapped Carter, irritated.
“Then how did you see his face?”
“Well I saw... I mean he... well I mean he didn’t look at me but I could see part of his face. I mean...”
“
Part
of his face?”
“Well… the
side
of his face.”
“When he ran past you.”
“Yes.”
“Like a bat out of hell.”
“
Yes!
”
Carter looked over at Nick Sinclair. She was lowering her head and avoiding his eyes.
“OK let’s review what we’ve got,” said Alex. “You heard screams, you were scared, you hid behind a tree and a man ran past you very fast without turning to look at you.”
“I didn’t say he was running fast.”
“You said like a bat out of hell.”
“Did I?” asked Carter, confused.
Andi paused to let Carter’s response sink in.
“No further questions.”
Andi sat down, letting her head drop. Nick Sinclair rose with as much dignity as he could muster.
“I have no redirect Your Honor.”
“The witness is excused,” said the judge.
Carter was escorted gently off the witness stand by a bailiff, as Andi looked on with what looked like a trace of sympathy. Sinclair sat down and Sarah Jensen rose. She regretted rounding off on a low note. It would have been better if Carter had been bullied on cross-examination, instead of simply being made to seem like the absent-minded old man that he was. But Carter’s testimony was intended as the icing on the cake. It wasn’t really essential. Even Bethel’s evidence, with its uncertainty over the attacker’s age and her past accusations of rape wasn’t really essential.
The scientific evidence was what counted in this case. In cases where the eye-witness or victim testimony is weak, scientific evidence was crucial. And in this case it was conclusive. The danger was that the jury would hold this debacle with Carter closest to the forefront of their memories. Therefore Sarah Jensen would have to remind them of the formidable scientific evidence in her closing.
She would take advantage of the O J Simpson trial, in which the DNA evidence was classified by one ignorant juror as “a whole lot of nothing.” This jury was educated enough to understand DNA evidence and would react differently. But there was something else she had to do first.
“Your Honor, the prosecution rests.”
Justice Wagner looked up at the clock on the courtroom wall opposite her and then at Alex Sedaka.
“Will the defense be ready to proceed on Monday morning.”
“Yes Your Honor.
“Then this court is adjourned until ten O’clock Monday morning.”
“All rise!” the bailiff intoned.
The lawyers, Claymore, jurors and spectators all stood. The judge rose with her customary dignity and left the courtroom. Andi and Alex started gathering up the papers in front of them. Claymore was standing with them, looking embarrassed. He wanted to ask them what his chances were, now that the prosecution’s case was nearly over. The truth of the matter was that there had been no surprises and Alex had by now had the chance to study the juror’s faces.