A Give Up Exclusive!
from Spectacular Computer Crimes
by Jay Bloombecker

KEVIN MITNICK: THE WILLIE HORTON OF COMPUTER CRIME?

THE DETENTION

Mitnick was denied bail under the provisions of the so-called Bail Reform Act passed in 1984. This act allows for detention in those cases where the judicial officer "finds that no condition or combination of conditions of release will reasonably assure the. . .safety of any other person. However, the comments of those judicial officers denying Mitnick bail suggest that preventing future crimes, not preventing Mitnick's flight, was the major basis for their actions. As such, the decision calls into question the ability of a judge or magistrate to predict future behavior.

In the first hearing after Mitnick's arrest, United States Magistrate Venetta Tassopulos ordered him held without bail, ruling that when "armed" with a keyboard, he posed a danger to the community. In addition, the Magistrate granted a prosecution request restricting Mitnick's telephone calls from jail. He was allowed to call his lawyers or three members of his family, and only under jail official's supervision.

Assistant United States Attorney Leon Weidman argued in favor of Mitnick's detention. "This thing is so massive, we're just running around trying to figure out what he did," the prosecutor admitted. Despite the inconclusive nature of the investigation, Weidman expressed no doubt about Mitnick's threat. "This person," he said, "is very, very dangerous, and he needs to be detained and kept away from a computer."

Two weeks after Magistrate Tassopulos detained Mitnick, Magistrate Robert Stone heard an appeal from the detention order. Assistant United States Attorney Leon Weidman said investigators believed that Mitnick might have been the instigator of a false report released by a news service in April, 1988, that Security Pacific National Bank lost $400 million in the first quarter of that year.

He also said that Mitnick penetrated a National Security Agency computer and obtained billing data for the agency and several of its employees.

Based on these arguments, and other allegations of past wrong-doings, U.S. Magistrate Robert Stone rejected Mitnick's appeal.

"I don't think there's any conditions the court could set up based upon which the court would be convinced that the defendant would be anything other than a danger to the community," Stone said.

Mitnick's attorney argued that house arrest and the removal of all of Mitnick's computers and telephone connections from his home would adequately protect society. Stone disagreed. He noted that while most criminals might be controlled by requiring them to remain in their homes, this was not the case with Mitnick. "This really sounds very different," Stone said. "It sounds like the defendant could commit major crimes no matter where he is."

After he pleaded not guilty before United States District Judge Mariana Pfaelzer, Mitnick once more requested bail. Again he was turned down. Judge Pfaelzer seemed convinced by the arguments of Assistant United States Attorney Weidman, saying Mitnick was "a very, very great danger to the community."

By April, 1989, the prosecutor's office had reduced its estimate of the seriousness of Mitnick's offense. Arguing in favor of a plea bargain worked out between prosecution and defense, Assistant United States Attorney James Sanders told Judge Pfaelzer that Mitnick had neither damaged DEC's computer system nor attempted to make money from the software he copied from DEC. Sanders also revised the government's estimate of the damage Mitnick had done to DEC. Instead of $4 million, Sanders put DEC's cost at $160,000 in "downtime" to trace the security breach Kevin was charged with.

Pfaelzer took the unusual step of rejecting the plea bargain, saying, "look at Mr. Mitnick's background. He is a person who has engaged in this conduct before, rather consistently before."

Three months later, in July, 1989, Judge Pfaelzer accepted Mitnick's guilty plea. The plea varied in one respect from the one rejected earlier. In addition to one year's incarceration, the sentence agreed upon, called for Mitnick to spend six months in a rehabilitation program to deal with what has been called his "computer addiction."

Within a week of Mitnick's sentencing, significant evidence became available further suggesting that his detention had been unfair. In July, 1989, Assistant U.S. Attorney James Asperger admitted that there was no evidence to tie Mitnick to the problem experienced by the Security Pacific Bank. He also admitted that there was no evidence to tie Mitnick to the problem experienced by the Security Pacific Bank. The National Security Agency itself absolutely denied that its computer security was breached at the time Mitnick was alleged to have broken in. Asperger, the prosecutor whose office was responsible for presenting evidence in support of these untrue allegations, and using them to influence the court, simply acknowledged: "A lot of the stories we originally heard just didn't pan out so we had to give him the benefit of the doubt."

Other widely circulated stories which influenced the Magistrate's decision to deny Mitnick bail included the unproven allegation that he changed the TRW credit report of a judge who sentenced him to serve time for a juvenile computer offense, and that he disconnected the telephones of actress Kristi McNichol. These charges, Asperger also admitted, could not be proven.

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