No Way Out

“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.”

Monday, 24 August 2009 — 10:15

“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.

“I’m saying that if the original source code is different to the current version, then the defense can argue that the software has been tampered with deliberately and then the People would have to concede that this shows that any discrimination arising out of the tampering is indeed intention- based. But if on the other hand the original source code is substantially the same, then it would imply that the problem is simply a flaw in the program design, and any adverse consequences to ethnic minorities would thus simply be a by- product of this flaw. As the Court is applying an intention-based test of discrimination, in accordance with the earlier precedents, and not merely an effects-based test, the Court does not yet have any basis for granting this motion. Only if and when the defense is able to prove that the software has been modified by some unauthorized party outside the company that designed it, can they argue that there is evidence of intention-based discrimination.”

The judge turned to the defense lawyers. Andi looked crestfallen. Alex’s face and body language showed no emotion.

“Assuming that LegalSoft’s appeal is blocked and you get the source code tomorrow, how soon after that do you think you can have a definitive answer to this question?”

Alex turned to Andi. This was her territory — and David’s.

“I’d say that if we get the software my Ten O’clock tomorrow, as per the ruling, then we can have a definitive answer within a few hours. We can rename the variables and arrays in the decompiled version to match their counterparts in the original source code and then just run a straight text comparison to look for any changes.”

“So you think you can come up with a definitive answer by, say, Wednesday morning.”

“I’m sure of it,” said Andi.

The judge turned to the prosecutors.

“Will the prosecution want a copy and a chance to call its own expert?”

Nick Sinclair looked at Sarah. She was leading the case and it was her call.

“No Your Honor. But could I ask if, in the event of the defense establishing that there was such tampering, is the Court minded to grant the defense’s motion for a mistrial, bearing in mind the People’s other arguments — and if so will this be with or without prejudice?”

Sarah Jensen wanted the reassurance, that if a mistrial was declared, they would at least have the chance to