No Way Out

“Except that if you do, then I would have to rule that you have opened the door to the prosecution introducing all the results of the new tests including the fact that they match the defendant.”

“That’s not fair Your Hon-” Andi blurted out.

She was silenced by a slight motion of Alex’s index finger. The judge continued.

“It’s perfectly fair Ms Phoenix. In order to introduce the facts pertaining to Louis Manning, the defense will have to introduce the results of the new test itself. Once the defense does that, the prosecution will be able to introduce whatever else is in those same tests. There is no way that the results can be separated or isolated.”

“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.”

Monday, 31 August 2009 — 10:40

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!”