http://www.zdnet.com/zdtv/cybercrime/chaostheory/story/0,3700,2169264,00.html
Mitnick Trial Delay?
Lawyers for imprisoned hacker Kevin Mitnick, aka the Condor, are
trying to push back the trial, citing government misconduct.
By Kevin Poulsen November 24, 1998
Today, Kevin Mitnick's attorney filed a motion with the US district
court in Los Angeles, seeking another continuance of the imprisoned
hacker's trial, currently set for January 19, 1999.
In his filing, defense attorney Don Randolph argues that the
government has been delinquent in handing over information needed to
prepare his case. In a surprising development, Randolph also implies
that the FBI may have had a mole in the defense camp.
"The fact is, Mr. Mitnick has been less than diligent in reviewing
discovery materials."
--Prosecutor David Schindler
According to Randolph's motion, the government missed a court-ordered
deadline to provide the defense with copies of prosecution witnesses'
statements, finally handing them over last Tuesday-- 27 days late.
Additionally, prosecutors have yet to produce an exhibit list, which
is overdue since November 19. They're also allegedly withholding some
electronic evidence completely.
"Due to the government's significant delay in producing discovery as
ordered by this court, and due to its continuing failure to produce
certain discoverable evidence altogether, the defense cannot
competently complete its investigations and prepare for trial in this
matter absent a reasonable continuance in the trial date."
Richard Sherman, the lawyer for Mitnick's codefendant, Lew DePayne,
neither joined in the motion nor opposed it. But he agrees that the
government is tardy. "They were a month late in giving us the witness
statements, and we don't have the exhibits yet," he told me.
"The contention that we have been late with materials is
disingenuous," says prosecutor David Schindler. "We've provided
thousands of pages of discovery."
Schindler is opposed to any further delays in the trial and implies
that it's the defense that is dragging its feet. "The fact is, Mr.
Mitnick has been less than diligent in reviewing discovery materials
and in producing the computer that he was to have produced for the
government's review months ago."
By court order, Mitnick is entitled to examine the electronically
stored evidence from jail on a laptop computer, but only after
government experts inspect the system for modems or other contraband.
But Schindler, who had not yet seen the motion, couldn't comment on a
dramatic allegation that may lead to a splintering of the two defense
camps and foreshadow a motion to dismiss all charges against the
Condor.
Mole Hunt
In a surprising turn, Randolph also accuses the government of planting
a mole in the defense camp, in the form of my one-time codefendant and
friend, Ron "the Garbageman" Austin. Randolph's motion, excerpted
here, reviews the alleged misconduct.
Compelling evidence of outrageous government conduct has been
disclosed to the defense for the first time with the belated
production of its witness statements. Reports prepared by the FBI
create strong inferences that Ronald Austin, the government's key
informant against the defendants, was simultaneously a cooperating
government witness/informant and an employee of attorney Richard
Sherman... at the time Mr. Sherman was representing Kevin
Mitnick....
Austin was privy to confidential communications between Mr. Mitnick
and Mr. Sherman which he later disclosed to the government.
Moreover, Austin was given direct insight into Sherman's defense
strategy at the same time that he was acting as an informant
against Sherman's clients....
The FBI records demonstrate that the government agents were
certainly aware of Mr. Austin's role in Sherman's office during
their interviews... but nonetheless continued to seek information
from Austin. The government's failure to cease all interviews with
Mr. Austin immediately upon the disclosure of his relationship with
Mr. Sherman constitutes, in itself, a serious abrogation of the
government's professional, ethical, and legal obligations.
The FBI reports attached as exhibits to the motion imply that Austin
was not so much a spy as a man caught in the middle.
Mitnick began phoning Austin in mid 1994, while on the run, and the
two found they had something in common: Justin Petersen, the paid
FBI informant who set them both up. When the FBI suspected that Austin
had heard from Mitnick, they confronted him.
"If Ron Austin was the worst thing Kevin Mitnick had to worry about,
I'd be very, very impressed."
--Richard Sherman
Fearing that he could be charged with aiding and abetting a fugitive,
Austin began tape-recording the conversations for the feds. But he
maintained a secret line of communication with the Condor via email.
When Mitnick was arrested in February 1995, after cybersleuth Tsutomu
Shimomura tracked him to his apartment in Raleigh, North Carolina,
federal agents seized his computer and eventually found Austin's
surreptitious email. Irritated by his apparent double-dealing, they
interviewed him on July 18, 1996, only to find that he was working for
Mitnick's then-attorney, Richard Sherman.
According to the FBI report excerpted here, Austin made it clear that
he wasn't going to be a spy.
Austin had several conversations with Sherman concerning Mitnick's
situation. In one of the conversations, Sherman discussed his
defense strategy. Austin said that he was not going to provide this
information to the interviewing agents. The interviewing agents
advised that they did not want to know Sherman's defense strategy
information, and it was agreed that the information would not be
provided at all....
Austin said he did not want to be perceived as attempting to find
out information about Sherman's activities and then relaying it to
the FBI.
The FBI report includes nothing to imply that Austin actively spied on
the defense team, but at one point, he apparently told the agents that
Mitnick suspected him of playing a role in the arrest. Don Randolph,
Mitnick's current defense attorney, may cite this as an example of a
confidential attorney-client communication that fell into the FBI's
hands through Austin.
If Randolph can prove that the government had improper access to
defense secrets, it could lead to a motion to throw out the entire
case against Kevin Mitnick. For now, Randolph wants more time to look
into it.
"Obviously," the motion reads, "the defense is obligated to
investigate all details relating to the government's contact with Mr.
Austin, after which the defendant will request all appropriate
remedies."
Richard Sherman, who now represents Mitnick's codefendant, Lew
DePayne, pooh-poohs the mole hunt. "If Ron Austin was the worst thing
Kevin Mitnick had to worry about, I'd be very, very impressed," he
told me. "He didn't get any information from me on the Mitnick case.
He didn't even want to talk to me about the Mitnick case."
"I'm making a motion to sever DePayne's case," Sherman adds.
The Mitnick motion is tentatively set to be heard on November 30, at
1:30 p.m.