Authors: David Kessler
“Hello?” she said abruptly, putting on a Mexican accent that she could hide behind, in case it was some one she wanted to avoid, by pretending to be some one else.
“Is that Bethel?”
It was a woman’s voice… a familiar voice… but it sounded distorted.
“Who is this?”
“Who wants to know?” would have sounded corny.
“You don’t know me. My name is... you can call me ‘Lannosea’.”
“What do you want?” Hearing such a strange name made Bethel nervous. Anyone using a name like that had to be a weirdo. And the she didn’t need a weirdo in her personal space on top of all her other problems. But the fact that it was a woman was reassuring.
“I want you to know that Claymore isn’t going to get away with it... and neither is Alex Sedaka.”
“What... what do you want?”
“I want you to know that there’s some one out there fighting for justice... fighting to give
you
justice.”
“You said... Alex Sedaka.”
“He raped you too, figuratively speaking.”
A streak of terror went through Bethel like a lightening bolt. This woman was reading her mind. She was telling her the thoughts that had been going through her head only a few minutes ago.
“What are you going to do?”
“I intend to make sure that all those who have harmed you are punished. I intend to give you the justice that the system has denied you.”
Bethel was apprehensive, but no longer fearful. This woman was not her enemy. But she knew that she had to be careful what she said. It was one thing to wish for revenge, it was another to be associated with it. And yet the voice gave her a note of hope. This woman was in some way her kindred spirit
–
a woman who could read her thoughts, feel her pain, almost with the same heart beating inside both of them... whoever this woman was.
“Thank you,” said Bethel quietly. “Thank you,” she said again her eyes squinting against the tears that were now flowing freely.
“Be strong,” said the woman’s voice at the other end of the line, gentle yet hard. “Be strong and courageous. Justice will soon be with you.”
“OK, let’s hear it,” said Alex.
They had set up the three-way video conference, with Alex sitting at his desktop computer in his home office on the main level of the house, while Andi was sitting with her laptop at the desk in her hotel room. Alex and Andi had passively logged on to the Oovoo program and David Sedaka had then invited each of them to join. All they had to do was click “Accept” and the three way conference was up and running.
“It works like this. First of all, the original jury selection program was written in such a way that it didn’t have to use it’s own database. It logs on to the databases for voting and driver’s registration in the relevant district of the State and take the names of all prospective jurors in that district from both databases. That way it’s assured of the most up-to-date voter and driver records.”
“OK,” said Alex, nodding.
“The next thing it’s supposed to do is screen out any duplicates – that is any names that appear on both the voting register and the driver’s license records. There are usually quite a lot. So far so good?”
“I’m still with you.”
“All right, the next stage is to screen out persons known to be
ineligible
. That means people in prison, people with felony convictions or recent misdemeanors, etc. All clear?”
“Absolutely.”
David was being brisk about it, Alex gave him credit for that. He was also being careful not to go
too
fast, summarizing each stage quickly and then stopping to make sure that Alex had understood.
“Okay finally when all that’s done, the algorithm picks the jurors using a randomization procedure that I told you about before to get the initial random number.”
“OK, I understand all that,” said Alex impatiently. “But how has it been tampered with?”
“Well remember I said that
first
it draws up the list of
potential
panelists living within the relevant district. Then it cuts out the duplicates from the list
before
going on to make the actual final selection.”
“Yes?” said Alex hesitantly.
“Well I don’t know if this is the result of tampering or just bad programming, but what actually happens in the program is that it doesn’t cut out the duplicate names from the overall list
before
it draws up the panel. Instead it draws up the panel
first
and only then cuts out the duplicates from the actual list of panelists
if there are any
.”
“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.
“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.