Re: LAW: Bar Associations and Monopolies (Was: POL: Reaction to Microsoft Rul...

Date: Mon Apr 24 2000 - 11:22:53 MDT

Michael S. Lorrey, <>, writes:
> Any computer nut ought to know the story of Kevin Mitnick, who, after
> five years in prison, most of that in solitary, without a trial, wrote:
> Did he waive his right to a speedy trial?

Mike Lorrey replies:
> No, he didn't. Moreover, he was in jail for something like 3 years before he was
> even arraigned. They wouldn't let him have access to evidence, or participate in
> his defense, and he was refused access to simple electronic devices like phones
> and calculators. puts a little different
spin on this:

   Mitnick's trial had been delayed several times due its complexity,
   and often at the request of the defense.

If the defense is requesting delays, that is not consistent with
demanding a speedy trial. The defense doesn't get to drive the whole
process, setting the timetable which all parties must follow, for their
own convenience. They can demand a speedy trial and then both sides are
handicapped by the rapidity of the proceedings. But once the defense
starts requesting delays, the prosecution gets to do so as well.

   Randolph tried repeatedly to get Mitnick a computer so he could review
   evidence that reportedly includes witness statements totaling 1,400
   pages, 10 gigabytes of electronic evidence and 1,700 exhibits in all.

   But after one hearing, Randolph told reporters that Judge Pfaelzer
   "didn't seem to want to hear 'computer' and 'Mitnick' in the same

   The court ultimately allowed Mitnick access to a laptop, but it was
   in a room for attorney-client meetings, and he was always monitored by
   someone from Randolph's office. And there was no modem or phone line.

So it wasn't that he was denied access to evidence, he was denied access
to computers. From what I read here it implies that if his lawyer had
simply printed out the relevant data on paper and carried it in, Mitnick
could do whatever he wanted with it. But the lawyer wasn't allowed to
bring in a computer until late in the proceedings.

   In the meanwhile, Mitnick has been serving out a 14-month sentence
   for violating his probation in the Digital break-in and eight months
   for a 1995 North Carolina charge of possession of an unauthorized
   access device.

   "Kevin's problem is that he has been convicted multiple times,"
   said journalist Markoff. "Whatever you think of his crime, he has
   tripped the relevant federal guidelines. And the judge gave him
   a break before. Now he's before her again for another series of
   federal crimes."

He was denied bail, but he was a known flight risk. He had been a
fugitive for three years until Shimomura caught him, and law enforcement
couldn't count on the assistance of a top rank computer security expert
to catch Mitnick next time. So I can fully understand the denial of bail.

Plus it sounds like two years of his jail time was counted as working
off previous sentences.

Putting all this together, Mitnick has had a rough ride, but he has
brought it on himself. He violated his probation and he fled from
justice despite lenient treatment by the judges in his earlier arrests.
Under those conditions no one could not expect kind treatment from the
criminal justice system. At least some of his jail time was owed due
to previous convictions, and he himself requested delays in his trial.

The judges may have been excessively paranoid in keeping Mitnick away
from phones and computers, but these are not technological people and
it was hard for them to know what harm Mitnick might accomplish with
access to this equipment. And these limitations do not prevent Mitnick
from participating in his defense. For hundreds of years prisoners have
gotten by without computers.


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