DONALD C. RANDOLPH, ESQ.,
California State Bar Number: 62468
RANDOLPH & LEVANAS
A Professional Corporation
1717 Fourth Street, Third Floor
Santa Monica, California 90401-3319
Telephone: (310) 395-7900
Attorney for Defendant
KEVIN DAVID MITNICK
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff
vs.
KEVIN DAVID MITNICK,
Defendant.
______________________________
CASE NO. 96-881-MRP
DEFENDANT'S REPLY TO GOVERNMENT'S OPPOSITION TO SUPPLEMENTAL LAW LIBRARY TIME; DECLARATION OF DONALD C. RANDOLPH; EXHIBITS
TO THE UNITED STATES OF AMERICA AND TO THEIR ATTORNEYS OF RECORD HEREIN:
The defendant, KEVIN DAVID MITNICK, by and through his attorney of record, Donald C. Randolph, hereby submits this reply to the government's opposition to his motion for supplemental law library time at the Metropolitan Detention Center. This reply is based upon the attached memorandum of points and authorities, declaration of Donald C. Randolph, exhibits, the files and records in this case, and any oral or documentary evidence which may be presented at hearing on this matter.
DATED: March 19, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: ________________________________
DONALD C. RANDOLPH
Attorneys for Defendant
KEVIN DAVID MITNICK
In seeking additional access to the law library located at the Metropolitan Detention Center, Mr. Mitnick does not request any "special privileges" of this Court. Nor does he request this Court to impose an order which will burden either the administration of the Metropolitan Detention Center or the rights of other inmates to access the law library. Rather, Mr. Mitnick seeks to exercise his right to participate in his own defense in a manner which can be easily and justly accommodated without notable cost. As evidenced herein, the considerations raised by the government in opposition to Mr. Mitnick's request are not legitimate. Their respective merits are each individually addressed below.
1. Reasonable Access to the Law Library is a Right, Not a Privilege.
The government incorrectly characterizes the exercise of Mr. Mitnick's Constitutionally protected desire to assist in his own defense as a "request for special privileges." Statutory law requires wardens of federal prisons to allow inmates reasonable access to a law library and legal materials as of right. [28 C.F.R. 543.11, et. seq., Exhibit A; see also, Bureau of Prisons Program Statement, Exhibit B]. This right includes "special time" to those inmates who demonstrate a requirement to meet an imminent court deadline. 28 C.F.R. 543.11(i). The statutory requirement is implemented by the BOP through its program statement which is, in turn, interpreted by the Metropolitan Detention Center through an institutional supplement.(1)
Undoubtedly, a given amount of library access may be considered reasonable for one inmate and yet inadequate for another inmate confronting different circumstances. Logically, complex cases or those involving novel legal issues will require greater legal preparation than unexceptional cases. Thus, assurances of "reasonable access" to legal materials in complex or lengthy cases will surely require greater access to these materials. Although the MDC's standard policy of 5.5 library hours/week may properly be considered reasonable access in some, if not most, cases, it is not reasonable given the facts of the instant case.(2) This case is complex, it involves novel issues of law requiring considerable legal research, and is remarkable for the volume of evidence held against the defendant. The defendant respectfully requests that this Court grant him additional access to the law library in order to ensure that his right to reasonable access to legal materials under these circumstances is protected.
2. The Administrative Burden Associated with Granting Mr. Mitnick's Request is Inconsequential.
Contrary to the government's assertions, granting Mr. Mitnick additional access to the law library will have virtually no adverse effect on either the operations of the MDC or upon the ability of other needy inmates to access the law library. The MDC's resources and library space accommodate upwards of thirty-five inmates at a time during standard weekly law library hours. By contrast, as evidenced in the MDC's own documentation, the number of inmates participating in supplemental law library hours averages just over ten. [Exhibit C](3). Since there is space, on average, for at least twenty additional inmates during supplemental law library hours, it cannot be said that Mr. Mitnick's presence will have the effect of excluding or otherwise adversely affecting deserving inmates from similar access. Nor would Mr. Mitnick's presence result in any appreciable burden on the MDC's resources since the number of supervisory staff during law library hours (generally consisting of non-uniformed, non-custodial employees) remains essentially constant, regardless of the number of inmates present. See Declaration of Donald C. Randolph, attached.
3. The Defendant's Participation in Conducting Legal Research has Saved Valuable Attorney Time.
The defendant's proven ability to assist his counsel in conducting legal research is by no means speculative. Surely, this is a relevant consideration for the purposes of this motion in light of the public costs associated with the efforts of appointed counsel. Moreover, through self-education in the relevant legal issues, the defendant and his counsel can engage in more efficient deliberations further reducing the amount of attorney time required by this case.
For all of these reasons, the defendants request for an order granting him supplemental law library time at the Metropolitan Detention Center should be granted.
DATED: March 19, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: _____________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK
DECLARATION OF DONALD C. RANDOLPH
I, Donald C. Randolph, declare as follows,
(a) the law library and adjoining areas have an occupant capacity of approximately 38 inmates;
(b) during standard law library hours, all of the inmates assigned to a given floor (generally between 25 and 35 inmates) visit the law library simultaneously;
(c) the number of inmates using the library for supplemental law library time during the past 8 months has averaged just over 10;
(d) about half of the inmates entitled to supplemental law library time during this period of time were granted court orders to this effect, despite the fact that they were neither proceeding "pro se" nor within 20 days of an "imminent court deadline;"
(e) the law library is generally staffed by a constant number of non-custodial personnel regardless of the number of inmates present;
(f) Mr. Mitnick's ability to conduct legal research has assisted the defense and contributed to his understanding of the charges against him and reduced the amount of attorney time needed in order to present the defense.
I swear under penalty of perjury that the foregoing is true and correct.
Executed this 19th day of March, 1998 at Santa Monica, California.
___________________________
Donald C. Randolph
(1)The MDC's own policy for granting reasonable access to these materials is essentially illusory for the purposes of assisting in one's own defense. Those clients represented by counsel are only entitled to supplemental library time if they are within 20 days of the trial phase of their case. Therefore, they are precluded from participating in any pre-trial motions and, since motions must be submitted at least 21 days prior to hearing, they are effectively precluded from participating in the preparation of any motions submitted in their case.
(2)The MDC's administrative policy regarding supplemental law library time in no way limits the Court from granting an individual defendant such time where it deems appropriate. Indeed, nearly half of those inmates who enjoy supplemental library time do not qualify for administrative leave but have been granted a court order to this effect.
(3)Exhibit B consists of a nearly complete collection of weekly memoranda dating from July 24, 1997 through March 12, 1998, which document the names of those individuals entitled to extra law library hours during the weeks indicated.