Authors: David Kessler
“So the question that you
both
have to ask yourselves is would you rather continue or go to a new trial. As I have stated, I won’t grant a mistrial with prejudice. But I will consider either a mistrial
without
prejudice followed by a retrial or proceed with the present trial. In the event that you agree to proceed, I will leave it in the hands of the defense whether it wishes to introduce the new test results or not.”
“I don’t understand, Your Honor,” said Sarah. “Why should the defense have the prerogative of deciding about the admitting tests results if we agree to proceed?”
“Because as a matter of law, the prosecution has rested and cannot now introduce new evidence. This is a court of law Miss Jensen, not a court of whims.”
Now it was Alex’s turn to sound confused.
“In that case, Your Honor, why is the Court not making its own decision as to whether to carry on or go to a retrial.”
“Because, Mr. Sedaka, this issue has become very complicated. Although I ultimately have the authority to decide, I can see that this is a dilemma for both parties. Whatever ruling I make, some one is liable to be dissatisfied, possibly both of you. So I’m leaving the matter in your hands – yours and the prosecutor. I’m going to adjourn this hearing and give both sides an hour to try to come to some agreement. Then if you agree, we’ll do whatever you both agree upon.”
This was a very clever way to forestall subsequent objections – especially from the defense. There were pros and cons to both courses of action, and if the judge ruled unilaterally, they could lodge an exception for the record and then if the verdict went against them, they could appeal on the grounds that they had opposed the judge’s ruling. This way Justice Wagner was effectively giving the parties themselves the right to decide – albeit camouflaged under the guise of seeking
agreement
between the parties.
Of course they might still not agree. But the defense would have to make its position known. That meant they would have to make up their own minds where they stood in the face of this dilemma.
“What if
can’t
come to an agreement?” asked Alex.
“Then I’ll have to make a decision. But I will ask both parties to state their positions for the record – including their fallback position.”
Alex knew that he had to play for time. And he had to get some answers before he committed himself to a position that could land his client in prison for the rest of his life.
“Your Honor, these test results were the first time we were apprised of even the
existence
of Louis Manning, let alone his potential involvement in the case. As Your Honor may or may not know, Louis Manning – assuming that it is the same Louis Manning – was arrested for attempting to rape my… for attempting to rape a reporter who was covering this trial. Now he appears – somehow – to have become a credible suspect in this case. So much so, that the police or the DA decided to compare his DNA to the evidence sample. Before we are able to make a rational decision as to whether we would prefer to continue or start afresh, we would like to file a discovery motion for everything the prosecution has on Louis Manning as it pertains to criminal convictions and the reasons why his DNA was tested in this case.”
Sarah Jensen looked panic stricken.
“Your Honor that’s a pretty tall order at short notice.”
“We’ve wasted enough time on this. I see no reason why you can’t provide the arrest report and his record by, say, five PM tomorrow. And to give the defense the opportunity to study the material we will reconvene at ten O’clock on Wednesday morning.”
Victor Alvarez was at his desk in the corner office of forensic science lab when a tired and haggard looking young man walked in.
“Dr Alvarez? My name is Paul Greenberg. I’m the night Systems Administrator at the Ventura government building. I’m here about the LDIS server.”
“What is it?” asked Alvarez tensely. When the Systems Administrator on the graveyard shift walks, bleary-eyed, into the office of a Technical Leader at the forensic lab, it’s obvious that there’s a problem.
“It looks like somebody’s hacked in to database.”
Alvarez went into damage control model.
“Snooping or sabotage?”
“They deleted a file and replaced it with another.”
“Which file?”
“The new evidence sample from the Elias Claymore case.”
“Mother of God! How did they do it?”
There was a long pause before Greenberg spoke again.
“It looks like they used my ID.”
“
Your
ID?”
“Yes.”
“But how did they get it?”
“I’m still working on that. What I can tell you is that according to the user-log, they also downloaded Elias Claymore’s reference sample.”
“But wouldn’t they have needed your password?”
Again the embarrassed pause.
“Yes they did. But like I said, I don’t know how they got it.”
“Can’t you undelete the over-written file?” asked Alvarez.
“It’s not as simple as that. The original file hasn’t just had its title deleted: it’s been double-deleted – physically over-written.”
“Is that normal?”
“No it isn’t normal. But it’s been done. It looks like someone deliberately changed a file and then set out to destroy any trace of the original.”
“And when was this done? Before or after the last comparison between the suspect samples and the back-up crime scene sample?”
Greenberg looked at the activity log
“After the chemical analysis, but before the database comparison.”
“So you mean the last comparison was done
using
this tampered sample file?”
There was alarm in Alvarez’s voice.
“I’m afraid so.”
“
Damn!
” The frustration was mounting. “Okay, you say the evidence sample file was
over-written
. Does that mean it can’t be recovered?”
Greenberg thought for a minute.
“Well we do a backup tape every day at six p.m. but it looks like this tampering was done after the new profile was uploaded and before the back up was done.”
“So we’ve lost it for good! And the test was destructive so we haven’t got the sample anymore.
Shit!
”
“There is something else we can try. If I can take a look at the computer that was used for the scan, I can check the outgoing packet log for the upload to the LDIS server.”
“Does it keep that data?”
“Only as a temporary file. But when the system deletes it, it doesn’t do a double delete like the hacker did on the database. It just frees up the area of the disk for reuse. If there hasn’t been much more activity on that computer, I could recover the temporary packet log file with a standard utility and recover the raw data.”
“OK can you do that ASAP?”
“We have to. Let’s take that server out of use right away.”
“Okay and then when you’ve done that, run another comparison between the
restored
crime-scene sample and both reference samples: that’s Elias Claymore
and
Louis Manning.”
“Will do.”
Greenberg was about to say more, when he suddenly remembered the airhead who had phoned up a few days ago. He hadn’t told her the password. All he had told her was that it was his mother’s maiden name. But he hadn’t told her what that was. He had been hoping that she would call him back after she phoned during the day and asked one of his colleagues all those questions about him. They had teased him mercilessly about that afterwards.
She had asked about his age and his eyes and his zodiac sign!
He realized what had happened. She had “social engineered” him
–
and
one of his colleagues. Once she had his birth details it would have been no problem to find out his mother’s maiden name. But she had sounded so dumb on the phone.
An act of course!
How could I have been so stupid?
He tried to put it out of his mind as he looked at the file allocation table. Then he remembered something else.
“Dr Alvarez, I noticed that there are also extra reference samples file for Elias Claymore, Bethel Newton and Louis Manning. According to the properties, these are mitochondrial DNA profiles.”
“Yes that’s right. We do mitochondrial DNA profiles on reference samples as a matter of course. But we decided to use Y-STR on the evidence samples.”
“And you haven’t got any more evidence samples?”
Alvarez thought for a moment.
“Let me just check.”
He typed in something at his own computer and smiled.
“Oh I’m wrong. There’s another nail sample – the thumb of the victim’s other hand.”
Greenberg smiled.
“Well maybe it would be a good idea if addition to the new Y-STR test we
also
do a
mitochondrial
DNA profile on that last piece of evidence – just to cover all the bases, ‘scuse the pun?”
Alvarez smiled.
“That’s a good idea. I’ll get right on it.”
Andi was sleeping in her hotel room in San Francisco, or at least trying to. It had been a sleepless night as she had tossed and turned, after yesterday’s events in court. She had been expecting to call Gene as a hostile witness, but that had all been postponed till Wednesday. So all Andi could do was worry. She had finally managed to fall asleep in the wee hours of the morning. But the silent peace of her early morning slumber was not to last long. It was shattered by a heavy pounding on the door. Squinting against the dawn light, she staggered downstairs to answer, and looked through the spy-hole to see several police officers.
What on earth was going on?
“Yes?” she shouted through the door.
“FBI, ma’am! Would you mind opening the door?”
She opened the door in haste.
“Special Agent Caine Ma’am,” he said, flashing a badge in her face. “Are you Andromeda Phoenix?”
“Yes,” she replied hesitantly.
“I have a warrant for your arrest,” he said, holding out the warrant, “and another to search these premises.”
“Arrest? What’s the charge?”
“Illegally, ac
cessing a government computer without authorization
.”
“Your Honor,” said the diminutive but feisty lawyer, “my client is a man of limited means but has strong roots in this community where he has lived for twenty seven years.”
Andi was sitting with a group of other unrelated defendants in a crowded District Court, along with dozens of other defendants. She felt uncomfortable with Alex sitting next to her, yet comforted that he was there. It was embarrassing to feel that she needed his assistance, yet reassuring that he had dropped everything else he had to deal with
–
at a moment’s notice
–
to come to her aid.
There were also quite a few journalists milling around. Usually an arraignment court isn’t a particularly newsworthy venue. But some one had tipped off the press about the celebrity defendant and so there were a lot of reporters, packed in along with the usual suspects and the low-life shysters looking an easy fee
–
“court-house leaches,” Alex called them.
“Bail is set at fifteen hundred dollars,” said the arraignment judge. “Next!”
Andi and Alex were signaled to step forward by a bailiff. When Andi took her place before the judge, Alex went with her.
“Case 08-31-09-2346, United States versus Andromeda Phoenix,” said the clerk, rattling if off like a machine-gun. “US Code, Title 18, Part I, Chapter 47, Section 1030, Paragraph 2, Clause C, Unauthorized access to a computer used in interstate communication, one count. No priors.”
“Is the defendant represented by counsel?”
“Yes your Honor,” said Alex. “Alex Sedaka. I appear on behalf of Miss Phoenix and my client pleads Not Guilty.”
“Does the prosecution oppose bail?”
“No Your Honor. The accused has no priors and strong domestic and professional roots in the community. Therefore the prosecution does not see her as a flight risk.”
The duty prosecutor knew that she would make bail regardless. Although Andi had been living in the community for less than three months, it was now her home and she had an unblemished record.
The US Attorney in charge of the case would probably offer her a plea-bargain on the lines of probation and maybe community service
–
teaching computer skills to disadvantaged kids. She wasn’t really a threat to anyone. As far as he could tell she had just got overzealous trying to get information to help her client.
“Your Honor,” said Alex, “in view of the prosecution’s favorable statement, I would ask the court to release the accused on her own recognizance.”
“Any objection from the government?”
“No, Your Honor.”
“In that case the defendant is released on her own recognizance. I’ll set the pre-trial thirty days from now. Hopefully the three of you should be able to work something out by then.”
This was a coded suggestion from the judge that they should agree on a plea bargain.
Andi and Alex were led away by a bailiff to a Clerk to get the paper work sorted out. Later, a horde of news-hungry reporters swarmed around them as they left the Ronald V. Dellums Federal Building – actually two buildings nicknamed the “Madonna Buildings” because from above their pyramid-shaped roofs were vaguely reminiscent of the singer/actress’s pointy bras of the late nineteen eighties. The building, which housed, amongst other things, the Oakland Division of the US District Court, Northern California District, consisted of two 18-story towers interlinked at ground level by a three-story glass atrium and near the top by a two-story sky bridge.
Alex put a protective arm around Andi as he shepherded her through the gauntlet of reporters.
“Ms Phoenix,” asked a man, thrusting a microphone into her face, “does this case have anything to do with your defense of Elias Claymore?”
Alex turned her away without a word, shielding her from the reporter’s inquisitive eyes with his arm. A female reporter was poised on the other side, waiting to pounce.