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

From: Michael S. Lorrey (
Date: Mon Apr 24 2000 - 13:16:59 MDT wrote:

> 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.

The prosecution repeated refused to give mitnick and his defense attorneys access to
the evidence. Then they snowed them under with 10 gigabytes of data. Sound familiar?

> 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.

The defense kept requesting delays because the prosecution kept refusing to cooperate
on releasing evidence, and kept refusing to allow Mitnick to access the evidence. 10
gigabytes printed up is a huge amount of information. The prison warden wouldn't let
him have enough room to review that evidence in printed form, and it wouldn't fit in
his cell. So he was denied access to evidence. The warden refused to allow him to
posess any printed material that outlined electronic circuits, or to posess typed text
source code. The prosecution delayed for the first two years giving any evidentiary
access, because what they had was bogus. The prosecution claimed Mitnick caused over
$4 million in damages. In the end they could only prove $4,000.00 in damages.

> 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
> sentence."
> 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.

Do you think you could read 10 gigabytes of text in its entirety and remember it all,
enough to be used in your defense? I don't think so.

> 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."

Markoff has repeatedly lied about this story, on at least five if not more occasions.
Kevin Mitneck was never on anybody's 'most wanted' list, especially that of the FBI,
contrary to the claims of Markoff and Shimomura in their book 'Cyberpunk'. The FBI has
repeated denied that Kevin was ever anywhere near being put on their most wanted list.
Markoff has also lied about the alleged damages done by Mitnick. He claims that
Mitnick caused many millions of dollars of damages to The Well BBS and ISP service,
which The Well has repeatedly denied. Markoff also denies that he had a pre-existing
relationship with Mitnick, and that his stories in the New York Times and his book are
merely part of a personal vandetta to destroy Mitnick's life.

One of the things that Mitnick was previously convicted of was posession of a Radio
Shack speed dialer. This is the 'unauthorized access device' that Markoff speaks of.
This is a device that anyone can buy for less than $10 at your local radio shack.
Posession of it is not a crime. If the prosecution can prove that you happen to know
how to alter one of these speed dialers with a $0.05 electronic component that will
allow you to use certain types of payphones for free (that is also sold by Radio
Shack, hmmmm see a pattern here? Why isn't Radio Shack up on charges of conspiracy?)
then they can typically get a judge who knows nothing about electronics or telephony
to convict you of intent or attempted unauthorized access of a communications network.

Markoff is currently under suit for libel and defamation by Mitnick. Markoff made
millions of dollars for his book 'Cyberpunk' and its sequels making all sorts of
outlandish claims about Mitnick, while the most that can be proved is that Mitnick
caused at most $4,000 in damages. Markoff claims that Mitnick illegally accessed NORAD
computers, and claims that Mitnick is the person that the character in the movie 'War
Games' is based on (both have been proven to be lies by NORAD and the people who wrote
'War Games').

Mitnick was arrested at age 17 for his first offense, and contrary to California Law,
the LA Times published his name. As a result he was fired from every job he could get
when they found out who he was. Just as a drug conviction for posession of a joint
will destroy your life (even one planted there by a malicious girlfreind or police
officer), Kevin's was destroyed by this unlawful public disclosure.

> 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.

Ok so what about the other 2.5 years of jail time before he actually got a trial?

> 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.

Delays requested because he and his lawyers were denied access to evidence.

> 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.

What other prisoners had 10 gigabytes of evidence to sift through? What other
non-violent offenders have ever been confined for that many years without trial? Name
one person in the US criminal system who has ever spent 4.5 years in jail before the
start of their trial. There is none.

Mike Lorrey

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