No Way Out

“Did you express your concerns about Steven Johnson to anyone?”

“Oh… er… no. I didn’t even really think about…”

Alex realized that this precluded any possibility that they might have sacked him because he knew too much. Realizing this, Alex also realized that there was nothing more that they could get out of Jerry Cole — at any rate, nothing useful. Feeling only mildly sorry for the man and not wanting to waste any more of his valuable time, Alex looked at his watch.

“Yes well, thank you very much Mr. Cole. You’ve been a great help.”

Cole got up awkwardly as Alex walked to the door and opened it.

“So when are you calling me?”

“We’ll let you know,” said Alex, hustling Cole towards the door. Cole became slightly agitated at being forced to make such a rapid departure.

“Because I really want to testify,” said Cole, anxiously. “I think I can make a difference.”

Alex was nodding towards the open doorway for him.

“Well thank you again. And don’t worry. We will let you know.”

Cole looked like he wanted to say more, but the implacable look on Alex’s face warned him that he could only expect anger if he persisted. Alex gently but firmly hustled Cole out across the reception area and closed the door behind him. Then he turned back to Andi who was looking at him expectantly. He straightened his tie and took a deep breath, looking at first at Andi and then Juanita.

“Are you gonna tell us boss?”

It was Juanita with that taunting smile across her face.

“We can’t use him.”

“You think he’s a psycho?”

This was Andi.

“Oh no he’s legit. It’s just that the prosecution will tear him to pieces. Trust me, Cole won’t thank you for putting him through it and won’t help Claymore in the least.”

Andi nodded at Alex’s logic. But she had more to say.

“And yet I can’t help thinking that what he said was actually true.”

“I’m sure it’s true. Look we know what it’s like in forensic labs these days. Everything he said made perfect sense. But it’s all just a collection of cheap generalizations. It’ll take more than generalizations to save Claymore — especially if we send in a meek Christian to face a lion like Sarah Jensen.”

“No I don’t mean that Alex,” said Andi.

“Mean what?”

“About the generalizations. About the high pressure atmosphere at the lab. I think he may have been on to something when he said that the technician who handled the crime sample looked nervous. I think he may have been telling the truth. I think he may well have seen something… something specific”

“Oh come off it Andi, you don’t think they sacked him ‘cause he saw too much? I made sure to cover that one — he said he never told anyone.”

“No I’m not saying they sacked him for it. I’m sure they sacked him for a legitimate reason. I’m sure he was careless and they gave him a warning and he screwed up again and they decided that enough was enough. I accept all of that. It’s just…”

“What?”

“It’s just that I still think he may be right about the lab technician. Just because they sacked him for a legitimate reason doesn’t mean he’s lying when he says the technician was nervous. Cole may have seen it at the time and thought nothing of it — or at least not cared enough to do anything about it. But that doesn’t mean he’s lying… or even imagining. I think he may have really seen it. And he’s been thinking about it ever since they sacked him.”

“But what if he is right?” Juanita stepped in. How are we going to prove it when we haven’t got a reliable witness to put up there on the stand.

Andi thought about this for a few seconds.

“I think maybe we should subpoena the worksheets from the lab’s log book.”

“They should’ve supplied them as part of the discovery.”

“But they didn’t. That’s another thing that sets me thinking.”

Friday, 21 August 2009 — 10:20

The Friday morning session was taken up with legal arguments in the judge’s chambers. It started off pretty well for the defense, when they filed a discovery motion for the log book work sheets from the Ventura forensic lab. Sarah Jensen responded that this wouldn’t be a problem and after a quick word with Nick Sinclair, she replied that the prosecution didn’t oppose the motion and even had a copy of relevant pages in her file already. The copy was handed to the clerk who made copies for the defense and judge and it was marked as an exhibit for future reference.

The truth of the matter was that it would have been hard to impossible for Sarah Jensen to oppose the motion. But in any case, she was grateful to the defense for stipulating to the chain of custody on the DNA, which spared the jury having to hear several boring witnesses and shortened the trial by maybe a day or two. So she flagged them through on this point, confident that there was nothing in the work sheets that they could use against the prosecution. She had been through the work sheets very carefully and it all looked like routine. Everything was signed in and out. There were no gaps in the timing and no excessive handling of the evidence as far as she could see. Indeed if there had been excessive handling, it would in all probability have been in the chain of custody stage before it reached the lab. The fact that the defense had waived the right to question the chain of custody witnesses, meant that they didn’t expect to find anything in that regard. Still, she was curious as to their sudden interest in the work sheets.

However, after the relative tranquility and agreement of the parties on the work sheets, matters became somewhat acrimonious when a third party entered the picture.

That third party was LegalSoft, the software company that had created the jury selection software used by the Alameda County courts, as well time-management software, also used by the courts.

“Your Honor the source code to this software is clearly proprietary information and a trade secret,” argued Melvin Kenney, the lawyer for the company, a 6’5” former Notre Dame full-back. “Furthermore it is not covered by the California Public Records Act as it is private. And as to the fact that it is being used by the court, I would point out that the courts are also exempt from the CPRA. Accordingly my clients should not be forced to hand it over.”

Andi — who for once had been given the green light to argue the matter herself, because of her superior knowledge about such matters — pressed on with her arguments.

“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