Marked for Death

by Tony Kent

  With all masts highlighted, White then circled one mast in particular. He explained that this was the same mast they had looked at on the previous map and then drew the same three lines emanating from it: a line upwards, a line down to the left, and a line down to the right. As the map was of a far larger area, however, none of these lines extended beyond an inch in length. Done, he went on to highlight a main road that ran through the mast’s cell zone A. He then traced the route of that road through the full five miles covered by the map, which, by the end, was very far away from the initial identified cell mast.

  ‘Now imagine that the call was made from this street,’ he had continued, indicating the highlighted road, ‘and that the caller was in a car travelling south. If that call continues during the journey, at some point it will no longer physically be within cell zone A – the right hand of our first mast, which we’ll call Mast One. Once Mast One is no longer close enough, the telephone will look for the new nearest mast. And when it finds it, it will jump to that mast. So, if the caller is driving along the road highlighted and reaches this point . . .’

  White indicated a spot that was a mile or so further along the road.

  ‘. . . then in all likelihood the signal will be picked up by this mast . . .’

  He indicated a different mast, the one now closest to his hypothetical car, and he identified the bottom cell zone section it would now be travelling through by deftly adding the three one-inch zone lines as with Mast One.

  ‘. . . which, using our same 120-degree triangulation, is cell zone B of what we will call Mast Two.’

  Michael watched the jury nod in understanding. It was not just courtesy.

  Still with him so far, he thought. Let’s hope they can keep up.

  White continued, demonstrating the likely cell masts and cell zones for every half mile of movement along the highlighted road. When he was done the jury had a list of mast hits on a southern route which, White explained, would be strong evidence of that imaginary journey.

  ‘But what if one or some of those masts or cell zones were working at capacity, Mr White? What if one or some of them had taken all of the simultaneous users they are able to carry?’

  Epstein knew the potential lines of attack. His questions were designed to close them.

  ‘In those circumstances, where would the phone uses be registered?’

  ‘In those circumstances, Mr Epstein, the telephone would look for the next nearest transmitter. Which could be on the same mast but in one of the other two cell zones. Or it could be a different mast entirely. Still relatively nearby, but not quite as close.’

  ‘And how likely is it, for example, that the nearest available mast would be, say, over a mile away from where the phone is being used?’

  ‘Not very likely at all, Mr Epstein.’ White had held up the larger map to assist. He continued. ‘As you can see, there are many, many masts in this five-mile area. Each has three cell zones, as we’ve seen. Each cell zone has a significant capacity, and the phone use on each mast is prioritised. The top priority are the calls that come from telephones on the mast’s own network. You see, each mast is owned by a particular network. For example, our Mast One could be owned by EE, while our Mast Two could be owned by Virgin. Each mast will give preference to calls or texts that come from its own network. But assuming it has capacity left, then it’s first come, first served; it will take calls from phones of other networks. So most of the time any mast will take a call from any network. It is therefore very, very unlikely that all masts within a small area would all be at capacity. The idea that a phone wouldn’t be able to use one of the masts close by, that instead it would need to connect to one that is, say, a mile away from the phone’s physical location, is extremely unlikely indeed.’

  With the jury up to speed on the theory, White moved on to the evidence in the case.

  Using cell-site data relating to O’Driscoll and Kash’s telephones, he explained how their movements could be tracked, placing both phones at the scene of the Galloway murders. He then used the same data to show the jury the route he believed at least Darren O’Driscoll’s telephone had taken. A route, he said, which mirrored the Galloways’ own journey and so suggested that the brothers had been followed. And then, he said, the same data showed both telephones leaving the area shortly after the brothers’ time of death.

  By the end of White’s evidence to Epstein, the jury had a clear picture of all the cell-site evidence, a picture that wholeheartedly supported the prosecution’s case. And a picture that Michael was sure was wrong.

  Once Epstein had finished and taken his seat, Cole had cross-examined White for his own client, O’Driscoll. He had attempted to undermine White’s conclusion that O’Driscoll’s telephone had been at the scene of the Galloways’ murders. Although Cole’s questions had been asked skilfully, Michael knew he was coming at it from the wrong angle; White’s evidence had not been hurt.

  But Michael was not concerned. As he rose to his feet, he knew he could do better.

  ‘Mr White, I’m going to ask you some questions on behalf of the defendant Simon Kash.’

  ‘I understand, Mr Devlin.’

  White had encountered Michael before.

  ‘Then you’ll also understand, Mr White, that I have nothing to ask you about Mr O’Driscoll’s telephone.’

  ‘I think I’ve been asked all there is on that one.’

  White smiled as he delivered his answer. The jury did the same. They seemed to agree.

  ‘And it is possible for me to leave Mr O’Driscoll’s telephone alone, isn’t it?’ Michael continued. ‘Because you don’t actually suggest that Mr O’Driscoll’s telephone and Mr Kash’s telephone travelled together, do you? Or that they even took the same route?’

  ‘I don’t suggest either of those things, no. I couldn’t. But I think I’ve made that very clear, haven’t I?’

  ‘Indeed you have, Mr White. You’ve made it very clear. So let’s look at your evidence as it relates to Simon Kash’s phone.’

  ‘Yes, please.’

  Michael picked up a bundle of bound papers forty pages long, which contained all the various data that White had used in his evidence. The jury had copies of the same documents.

  Michael opened his own copy at page six. He asked for White, the jury and the judge to do the same.

  Page six was a map, similar to the one White had used in his example, and with the same five-mile scale, but this time the area it covered was the Borough of Bromley in South East London. Where the Galloway brothers had been butchered. White had concentrated on this map when giving the jury his conclusions on the evidence.

  ‘Can we do this backwards, Mr White? And start at the scene of the murder?’

  ‘We can start wherever you like, Mr Devlin.’ White’s voice was dismissive. Unconcerned.

  ‘That’s very kind of you.’ White’s arrogant tone did not bother Michael in the slightest. He was going to enjoy this.

  Michael picked up the map, pointed to the red spot that indicated the murder site and continued.

  ‘We’re agreed that the scene of the murder was here, are we not?’

  ‘Yes.’

  ‘And we note that the last recorded use of Simon Kash’s telephone on the night of the murders registers to cell zone C – the left-hand section – of Mast Twenty-two. Which you’ve told us is a mast owned by the O2 network.’

  Michael pointed to the mast, more for effect than anything. By this point everyone knew Mast Twenty-two.

  ‘That’s the same mast that registered Mr O’Driscoll’s telephone use at around the same time. Correct?’

  ‘I thought you had no questions about Mr O’Driscoll’s telephone, Mr Devlin?’ Judge Levitt interrupted.

  ‘Apologies, My Lord,’ Michael replied. ‘I meant specific questions. I won’t be able to avoid any reference to Mr O’Driscoll. Much as I’d like to.’

  ‘Perhaps no more promises you immediately break, then, Mr Devlin?’

  ‘I’l
l do my best, My Lord.’

  Michael turned back to White.

  ‘So, again, that’s the same mast as Mr O’Driscoll’s telephone. Correct?’

  ‘Correct.’

  ‘And you suggest that this puts them at the same location at the time of the uses.’

  ‘Correct.’

  ‘Which was 8.45 p.m.’

  ‘That’s right.’

  ‘And of course you say that the remaining telephone evidence shows the defendants moving out of the Bromley area almost immediately after 8.45 p.m.’

  ‘Correct.’

  ‘OK. I just wanted to make sure we were clear on that. Now, let’s go back in time, Mr White. Not long. Just, let’s say, ten minutes. Can you tell me the mast that picked up Simon Kash’s telephone use at 8.35 p.m.? Just ten minutes earlier?’

  White checked his report.

  ‘Mast Twenty.’

  ‘And the network that owns Mast Twenty?’

  ‘EE.’

  ‘So a different mast?’

  ‘Yes.’

  ‘And Mast Twenty, owned by EE – that’s this mast right here, correct?’

  Michael pointed to the map. To a second mast, perhaps an inch further away from the murder site. White checked his own papers.

  ‘Yes, Mr Devlin. That’s correct.’

  ‘How far is that mast from the site of the murder?’

  ‘Judging by the key, it looks to be just over half a mile.’

  ‘Can you tell me, is Mast Twenty closer to the site of the murders than Mast Twenty-two?’

  ‘No. It is not.’

  ‘What’s the difference in distance?’

  ‘Around half a mile again. Mast Twenty-two is less than two hundred yards from the scene of the murders.’

  ‘OK. In that case is Mast Twenty at least the second closest mast to the site of the murders?’

  White took a few moments to look at his map. Michael could see White counting under his breath. He had anticipated the question that would follow his answer.

  ‘No, Mr Devlin. It is not the second closest mast.’

  ‘That’s interesting. I wonder, do you have any idea how many masts are in fact closer?’

  ‘Five, Mr Devlin. Mast Twenty is the sixth closest cell mast to the murder scene.’

  Michael nodded his head as he glanced towards the jury. Most had started to look confused by the exchange. He needed to make sure that they were grasping the point.

  All still a bit technical so far, he thought. So let’s make it crystal clear.

  ‘How can it be correct, Mr White, that Simon Kash’s phone use places him at the scene of the murder, when his telephone was ignored by the five cell masts closest to that location?’

  ‘As I explained very clearly to Mr Epstein, it is perfectly possible that Mast Twenty-two was at capacity. In those circumstances Mr Kash’s telephone would seek out the closest available cell site. The important word there is available. It is perfectly possible that Mast Twenty was the only one of the next five masts that was not at capacity.’

  ‘But you said earlier, Mr White, that each mast had three cell zones, and that it was very, very unlikely that a telephone signal would travel up to a mile before finding an available cell. Isn’t that right?’

  ‘It is, Mr Devlin, yes. But this wasn’t a mile, was it? It was half a mile. Plus you have to consider the number of masts. Look at the map in your hand. For some reason the Bromley area has far fewer masts than the average and so the phone’s signal has far fewer options. Plus each mast has to take on far more signals. All of this suggests that masts in this area are much more likely to reach capacity. Now I accept, of course, that Mast Twenty is not the ideal mast. But its use in no way suggests that Mr Kash’s phone was somewhere other than the murder site.’

  Michael took a few moments, keeping his eyes on White, before responding. The expert witness clearly thought he had batted back the best point. Which was exactly what Michael wanted him to think.

  ‘OK. Now, at the risk of breaking my promises again, can you confirm that a call was made by Mr O’Driscoll at the same time as Mr Kash’s phone use? At 8.35pm?’

  ‘It was.’

  ‘And can you confirm that the cell site that picked up that call – Mr O’Driscoll’s call – was Mast Twenty-two?’

  ‘It was.’

  ‘So the same mast that picked up the phone use of both Mr O’Driscoll and Simon Kash ten minutes later?’

  ‘That’s correct.’

  ‘Thank you. Now, back in time a little more. In the hour before the 8.35 p.m. call, Simon Kash’s telephone was used a further seven times. Is that right?’

  White checked his report.

  ‘It was.’

  ‘Thank you. Now, can you please tell me how many masts picked up one or more of those seven telephone uses?’

  White checked his report. Then rechecked it more carefully. Michael watched him, amused. The expert was beginning to see the flaw in his analysis.

  ‘Two masts, Mr Devlin.’

  ‘Were either of those Mast Twenty-two, Mr White?’

  ‘No. They were not.’ White suddenly sounded much less sure of himself.

  ‘What about Mast Twenty?’

  ‘Yes. A number of the uses went to Mast Twenty.’

  ‘How many, Mr White?’

  ‘Five.’

  ‘Five of the seven. That’s very helpful. And the other two uses, Mr White?’

  ‘They were picked up by a different mast, Mr Devlin.’

  White held up the map and pointed to another circled mast. One which seemed even further from the murder site.

  ‘Mast Thirteen.’

  ‘And Mast Thirteen is owned by?’

  ‘The EE network.’

  ‘And is that mast closer to or further from the site of the murders than Mast Twenty?’

  ‘It’s further away, Mr Devlin.’

  There was a resignation in White’s voice. He knew what was coming. Michael could tell. White had seen his own mistake and there was nothing he could now do to rectify it.

  ‘How much further, Mr White?’

  ‘Perhaps half a mile.’

  ‘And how many other cell masts are there between Mast Twenty and Mast Thirteen?’

  White counted. Twice. The expert was rechecking. Hoping his first count had been wrong. His face told Michael that it had not. Finally White answered.

  ‘Four, Mr Devlin.’

  ‘Four, Mr White? Four?’

  ‘Yes.’

  Michael looked at the jury, feigning puzzlement. Some jurors seemed genuinely perplexed in return. But others were quicker; they had already reached the conclusion Michael had intended.

  Michael pressed on for the remaining few jurors. Playing to the crowd.

  ‘So, Mr White. You told this jury today that Simon Kash’s phone signal being picked up by Mast Twenty-two proved that the telephone was at the site of the Galloways’ murders, very soon after their deaths.’

  ‘Yes.’

  ‘You also used the same data to conclude that Simon Kash’s phone was in that same location for a lengthy period before their deaths.’

  ‘I did.’

  ‘And you told this jury that this second conclusion was not undermined by the same phone being picked up by Mast Twenty just ten minutes before.’

  ‘That’s correct.’

  ‘You said that although Mast Twenty was half a mile from the scene of the murder and that there were five closer masts, it did not rule out the phone being at the scene.’

  ‘That’s correct.’

  ‘But we now know that the same phone was used a further seven times in the hour before the 8.45 p.m. use.’

  ‘Yes.’

  ‘And we know that none of those uses were picked up by Mast Twenty, either.’

  ‘That seems to be the case, yes.’

  ‘Which must suggest that Simon Kash’s phone was not at the murder scene during the hour period in which the Galloway brothers were tortured and killed, mustn’t it?�
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  ‘Not, erm, not necessarily.’ White was on the ropes. ‘As I’ve explained, it’s about the nearest available cell—’

  ‘Yes, we’ve all heard and understood that,’ Michael interrupted. ‘But are you really suggesting that for an entire hour, every mast closer than Mast Twenty – all five of them – was so full to capacity that they couldn’t cover the phone use?’

  ‘That is . . . that is possible, yes.’

  All certainty had left White’s voice.

  ‘But what about the two uses picked up by Mast Thirteen, Mr White?’

  ‘I don’t understand.’

  ‘Of course you do. The two uses of Simon Kash’s phone that were not picked up by Mast Twenty. Because that mast was probably at capacity too, according to your logic. Those two uses could not have come from the murder site, could they?’

  ‘I think it’s a stretch to say that, Mr Devlin.’ White was standing his ground. He was not doing it well. ‘It is perfectly possible that cell usage and capacity was such that this was the nearest available cell mast at that time.’

  ‘But doesn’t that completely contradict what you have already told this jury, Mr White?’

  ‘I don’t think that it does.’

  ‘Then I think we’re doomed to disagree.’

  Michael had White beat. Both men knew it, and all Michael had left him was a choice: admit the error. Or refuse and look unreasonable.

  White had chosen the latter.

  Michael pressed on.

  ‘Because earlier you were asked about the possibility that a mast one mile from a given location would pick up a signal from that location. And your answer – in your own words – was that “a call using a cell a mile away from the caller is extremely unlikely indeed”. But now we have identified two calls. Calls which, if the phone is at the site of the murder, have registered on a mast over a mile away. And suddenly you’re saying that this is perfectly possible? Come on. The answer you’ve given flies in the face of your earlier evidence, doesn’t it?’

  White did not answer immediately. He seemed to be struggling for a compelling answer. Or maybe just a passable one.

  Michael knew that none existed. Only stubbornness remained.

  ‘I don’t agree, Mr Devlin. There are differences.’