t byfield on Sat, 6 Jun 1998 20:23:16 +0200 (MET DST)

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<nettime> Mitnick trial update


May 20, 1998

Mitnick on Trial: A Victory for the Defense

By Doug Thomas, OJR Staff Columnist

Today's hearing in the Mitnick case in federal district
court in Los Angeles was a hearing on discovery, to
determine both what evidence will be used in the
prosecution of Kevin David Mitnick, as well as what
evidence Mitnick and his defense team will be allowed
to review in preparing their defense. A second issue,
setting Mitnick's trial date, will be put off due to
prosecution and defense counsel's inability to find a
mutually agreeable start date. The prosecution, which
is anxious to begin trial, is pushing for an October
start date, while Mitnick's court-appointed defense
counsel, Don Randolph, has other commitments that would
prohibit him from starting the case until mid-January.

During the hearing, it was revealed that Tsutomu
Shimomura, the computer security expert who helped the
authorities track down and apprehend Mitnick, will not
testify as part of the government's case-in-chief.
While this does not preclude the possibility of
Shimomura testifying in rebuttal or even for the
defense, Shimomura's absence does signal that the
prosecution will be relying heavily on evidence seized
from Mitnick's computers.

The status of Shimomura's testimony makes today's
rulings by the court even more significant because he
is the central figure in the arrest of Mitnick. Judge
Mariana Pfaelzer ruled that the government must produce
a copy of any evidence that will be presented against
Mitnick in the upcoming trial. This includes material
that the prosecution has been unwilling to copy
previously, including proprietary source code, "hacker
tools" and access codes such as passwords, credit card
numbers and phone codes. The only thing that Judge
Pfaelzer denied to the defense was a copy of the
encrypted files that the government is holding and is
unable to decipher.

The encrypted data still posed a problem for the court.
As it stands, government officials are holding the
encrypted files and have no idea of their contents. The
defense claims that information in those files may
prove exculpatory, but revealing their contents to the
government would violate Mitnick's Fifth Amendment
protection against self-incrimination. Further,
prosecutors have indicated that they will not be using
the encrypted files against Mitnick, but they refuse to
return the evidence because they do not know what
information the files hold. Ultimately, the court sided
with the prosecution. Judge Pfaelzer described Mitnick
as "tremendously clever to put everyone in this
position" but indicated that "as long as he [Mitnick]
has the keys in his pocket, the court is going to do
nothing about it."

Even without the encrypted data, today's ruling was a
"major victory" for the defense, according to Mitnick's
attorney, Randolph. The ruling will allow Mitnick's
defense team and experts to review all of the
information to be used against him. Under this new
ruling, copies of the evidence will be stored at the
defense counsel's office and will be able to be printed
out for review by defense experts and Mitnick himself.
Further, Mitnick will have access to the electronic
materials at a specially designed off-site discovery
room. The court found the government's limitation of
three visits per month unreasonable, and has ordered
the prosecution to come up with a plan for greater

Defense and government attorneys are set to sit down
this week and come up with an order that will allow all
of the conditions to be met. By next week, Judge
Pfaelzer will review that order, make the final
decisions about evidence and discovery, and set a trial

Doug Thomas <mailto:douglast@usc.edu> is a professor at the
Annenberg School for Communication. His column, Hacker Alert
<http://olj.usc.edu/sections/departments/hacker.htm>, appears
monthly in OJR.
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