TELECOM Moderator <telecom@eecs.nwu.edu> (06/17/91)
My Sunday Sermon for this week will discuss recent allegations here that Len Rose has been unjustly picked on by the federal government. Two texts come to mind as a preface to my comments: "You shall know the truth, and the truth shall set you free." (From St. John, 8:32) "Injustice? Oh, I've never been too upset by injustice ... I've seen a lot of it in my lifetime, much of it directed to me. Injustice doesn't really hurt ... it is *justice* that stings." (Oscar Wilde, writing from Reading Jail to a friend.) And who exactly knows the complete truth in the Len Rose matter? Len, and Len alone. His attorney might know most of it. I would never claim to know it all, but I know I've heard a lot of conflicting stories, ranging from Len the meanest hombre in the history of the net to Len the innocent victim of a plot by the (official) government and the (quasi-official) government AT&T, and everything in-between. Al Capone was accused of plotting and engineering, or direct participation in many crimes. So was Leonard Rose. The government decided to charge Al Capone with a small selection of the crimes in which they believed he was a direct or indirect participant. The same stance was taken toward Leonard Rose. As the prosecution of Capone moved through various stages to his trial, the government decided all they could prove with absolute certainty -- and that burden on the government, the constitutional requirement for absolute proof being paramount in the United States -- was that Capone had lied when filing his income taxes. They had his signature on tax documents after all, and could easily demonstrate that two plus two did not equal three. So a man of Capone's 'reputation' went to the federal penitentiary about 1931 based on a single count of tax evasion. And a man of Rose's reputation is going to prison on a single count of possessing unlicensed source code. Unlike Capone, who did not plead guilty, but rather was proven guilty to the court's satisfaction, Leonard Rose chose to plead guilty to a single count of several original counts in his indictment. Like Capone, the government (official or quasi) investigators had plenty of complaints about Rose. There were allegations of hacking and phreaking a-plenty. There were allegations that the login.c code was in fact foisted off on at least a couple of unsuspecting (new on the job? less experienced?) sysadmins. Like Capone, seeing it, believing that it happened and wanting to do something about it are a lot different than absolutely proving that it did happen and that Len Rose made it happen. And Len Rose, like Al Capone, are entitled to the protection afforded by the Constitution of the United States. Unlike Capone, where his attornies granted the government nothing, and forced the trial to continue even with a single count of tax evasion, Rose agreed to a single concession, and everyone involved benefitted from it. To Rose, this expidited the process and got it over with that much sooner. To the government, perhaps the thinking was a bird in the hand is worth two in the bush ... or a single guilty plea is worth a dozen that may or may not be proveable to the court. Unlike Rose, who got a year in prison, Capone got several years in prison; but I realize in part this is due to differences in sentencing guidelines in the federal courts in recent years. And yes, there were people in 1931 who swore that Capone was not guilty of the many things he had been accused of. Many folks thought it was purely his ancestral background which got him convicted out of prejudice by prosecutors. Some of you responded to me saying "Rose was not FOUND GUILTY, he chose to PLEAD GUILTY." Actually what happened was that based on his plea of guilty, the court found him guilty ... but ... even that was not all that cut and dried. First off, I think the government was also interested in expediting the case. Had it been easier for them to prove the additional counts, they would have pushed for it. The only reason the government usually cuts deals is when the burden of proof is too hard for them. That's not to say the various crimes were not committed, or that Len had nothing to do with the crimes ... just that the government cannot easily prove it, if they could at all. Then again, maybe Len didn't have anything to do with the mess other than what he confessed to. Second, did Len Rose concede on one count because as some of you claimed, he was worn out from fighting, so depressed and demoralized he could not continue? I don't think so. I think he chose to concede on the one count because he acknowledged that much guilt and knew he would get a better deal than by holding out. Neither the government or your attorney can ram a guilty plea down your throat if you do not want to go along. Check out the Federal Court Rules of Procedure: 1) The court is not required to accept your plea of guilty. 2) The defendant will be questioned at length about the reasons he wishes to plead guilty -- a) did his attorney or the government promise 'to cut a deal'? b) did police or other investigators make some sort of promise to put in a good word for him if he 'made their job easier'? c) was he mistreated by the police or government while in custody? d) has he been treated with courtesy and fairness by court personnel? e) were his rights explained fully to him from the beginning? f) has he been under mental stress so that his thinking might be affected? does he realize the consequences of his guilty plea? g) did anyone tell him the court would 'go along' with what the government and his attorney decided to do? h) does he understand that by pleading guilty the court will listen to recommendations from the government and his attorney but is not bound by them in any way? i) does he understand that if the court chooses to accept his plea of guilty, the court may be prejudiced from that point onward, yet a later appeal from the court's decision will be difficult or impossible? j) finally, is he aware that the court can reject his plea of guilty and enter a plea of 'not guilty' automatically if the court feels the best interests of justice would be served by having a trial? 3) If the defendant persists in pleading guilty, the court can if it wishes accept his plea, and base its findings accordingly. So Len had his reasons for pleading guilty, and it was mutually convenient for the government. But the court did choose to find him guilty, and did decide there was no 'forced confession' from Len. In a phone conversation with Len some time back, he asked me what I thought he should do. I suggested that if he was completely innocent he should fight the charges. If he felt the government could prove one or more of the charges it might be to his advantage to plead guilty. I told him he and his attorney would have to decide what to do. Some of you said Len was a first time offender and should have received federal probation. Others of you said it should have been handled as a civil, rather than criminal matter. While it is true this was, to my knowledge, Len's first federal offense, the court is permitted to take an overview of Len's social history in detirmining an appropriate punishment. Len's history included: 1) An arrest and pending matter (or had he been convicted?) in state court pertaining to the burglary of the computer warehouse. I assume you all knew about that case ... 2) An arrest and pending matter here in Illinois based on the transfer of code from his new (one week!) employer's computer to his own. I presume the State of Illinois dropped those charges when Len was convicted in federal court. Or did they? 3) Fleeing the jurisdiction of the federal court in Maryland. (see point two above.) Len did NOT have permission from the federal court to leave Maryland and come to Illinois ... yet he showed up here with his family at a new place of employment while his case was pending in Baltimore. Supposedly, this was all a paperwork 'mixup', but I am told it was quite after the fact that Len got 'post facto' permission to stay here. How long afterward? Well, when he got arrested here a week after he arrived with his family, DuPage County Jail ran him through NCIC and found there was a Federal Pretrial Services hold on him in Maryland ... in other words, the federal court found out he had left Maryland once he got arrested over here on computer misuse (but unrelated) charges! 9o the court can consider all this; his prior state conviction, his current case in Illinois, and the fact that he flew the coop while on trial in Baltimore in deciding what to do. Then some of you commented on my use of the term 'therapeutic' as a possible outcome of Len's stay in prison. At least a couple of you brought up the 'gang rape' scenario, but let's view this realistically: Federal prisons are NOT like state insitutions, and state institutions are NOT all medium/maximum security places run by gangs of inmates instead of the staff. In minimum security institutions, state or federal (but the federal places are MUCH more professionally operated), the inmates tend to behave themselves quite well. They are white collar, and for the most part professional people on the outside. They may have been foolish enough to wind up in prison, but they are not foolish enough to screw up inside prison and wind up with a fresh sentence in a tougher environment. As Jim Thomas pointed out, there are no 'country club' federal prisons, but the worst of the Level 1 and Level 2 federal prisons are far superior (to an inmate's point of view) than their state counterparts. I don't think the possibility of Len Rose getting 'gang-raped' warrants serious consideration. Level 1 and 2 federal prisoners are all in the same boat as Len: they'll be getting out in a few months or a year ... they don't screw up; they don't assault each other. At the MCC here in Chicago, many inmates have passes to leave the building during the day for work, etc ... times are tough for them, but not *that* tough ... Maybe you would not have complained had I used the word 'catharsis' instead. A message said the law should be applied equally to all, and I quite agree. The proprietors of 'igloo' and 'ddsw1' both got shafted. Just think if you had been allowed to have Caller ID on those dialups and been able to trace the call back to the desk of a telco employee, or to the modem of a specific user ... Yes, I agree completely. Let's have prison terms for one and all when convicted. No more game playing where computer access fraud is concerned. A few of you 'complimented' me for my feelings of sympathy toward Len. Whether you believe it or not, I *do* feel sorry for the mess he has gotten himself into. But he got himself into it, and he has to pay for it. Likewise, I feel sympathy for most of the folks who get caught hacking and phreaking. Why? Not because hacking and phreaking is right, but because for the most part the people doing it don't even have the belief that they did anything wrong! Like Len, they just can't see what it was that was so wrong about what they did. I can appreciate and sympathize with the way they feel, but they had better wise up: computer fraud and abuse is just as wrong as the more 'traditional' crimes which they DO recognize as bad. The EFF: I think they *mean well*, a lot like the ACLU. But they fail to realize the huge number of freeloaders going along for the ride, for whom social responsibility in computing is a big laugh. Like the ACLU, they have a lot of hangers on for whom the First Amendment is merely coincidental to their world, but a nice coincidence at that. I think comp.org.eff.talk should either be moderated OR the 'eff' should be taken out of the name of the group. It does NOT do them justice. Patrick Townson
mnc@css.itd.umich.edu (Miguel Cruz) (06/17/91)
In <telecom11.463.1@eecs.nwu.edu> Telecom Moderator (Patrick Townson) writes: > Neither the government or your attorney can ram a guilty > plea down your throat >if you do not want to go along. Check out the > Federal Court Rules of Procedure: Have you ever been in a courtroom, Patrick? The only time the judge goes through that rigamarole is when there's a court full of reporters. I've sat through plenty of arraignments in my past life as a reporter; never unless it was a media circus with full theatrics did anyone make an issue of why the defendant was pleading guilty (aside from the judge mumbling a single sentence reminding him or her that the choice to plead guilty is a voluntary one). Likewise the idea that the government only cuts deals when there's insufficient evidence to definitely win a trial is purely idealistic fantasy. The prosecuting attorney makes deals under the following conditions: * case backlog * no political value in winning a trial * questionable political value in pursuing the matter in the first place * has no case but a scared defendant * law is unclear on the topic Our legal system bears only the palest, thinnest resemblance to what's on the books; it doesn't take long to realize that, and the longer you look, the more you see it. I'd be surprised to see Len getting a fair shake one step of the way given the appearance of his activities to a technophobic law enforcemtn community; especially when someone as well-versed in technical matters as yourself offhandedly dismisses defense of his rights with "I don't care one iota about this free speech nonsense" (very paraphrased). Peace, Miguel [Moderator's Note: Why, uh, yes ... I've been in federal courtrooms here in Chicago a few times, and one of the finest federal judges in the nation, George Leighton (he has since left the federal bench) almost invariably insisted upon examining defendants at length prior to accepting guilty pleas, plea-bargains or deals, etc. He was very conscious of how the Federal Defender's Office and the US Attorney would put their heads together for their mutual benefit ...and sometimes to hell with the defendant in the process! PAT]
"Lloyd W. Taylor" <lloyd@aplcen.apl.jhu.edu> (06/17/91)
Pat, Is there somewhere we can send a donation to Len's family, to help them get through this difficult time? Lloyd Taylor [Moderator's Note: Your concern is deeply appreciated, I'm sure. For yourself, and anyone else who wishes to contribute to the continuing expenses of Len Rose's defense or his family's welfare, I'm sure the best way to do it would be through his attorney, whose address escapes me immediatly ... perhaps one of the EFF people will provide it. PAT]
Rop Gonggrijp <ropg@ooc.uva.nl> (06/18/91)
telecom@eecs.nwu.edu (TELECOM Moderator) writes: > I think comp.org.eff.talk should either be moderated OR the 'eff' should > be taken out of the name of the group. It does NOT do them justice. Well, suppling (or supporting) a forum for free discussion does not mean that you have to agree with what goes on. Even in safe, clean, moderated discussions like here at comp.dcom.telecom im am quite sure that you do not agree with all the stuff posted. Newsgroups where you can speak freely are by defenition not moderated and groups that are moderated are not by defenition forums of free speech. Rop Gonggrijp (ropg@ooc.uva.nl)
Larry Campbell <campbell@redsox.bsw.com> (06/18/91)
Pat, you are *way* out of line. Al Capone was directly responsible for scores, possibly hundreds, of violent deaths. Len Rose was responsible for, umm, hmm, let's see ... what *actual* *harm* did he commit? Who did he injure? Whose money did he steal? Gee, that's a tough one ... Yes, white collar crime is a problem. Yes, depending on which Gucci-clad consultant you choose to believe, computer-related embezzlement results in the theft of X billion dollars a year. Okay, fine, prosecute *those* guys. HOW MUCH DID LEN ROSE STEAL? WHO DID LEN ROSE SHOOT? OK, he had an unauthorized copy of login.c (who doesn't?), but FEDERAL PRISON for THAT? Get a GRIP, folks, we're talking foam-at-the-mouth hysteria here over *really* *trivial* *transgressions*. (And please, no "but we have to nip this sort of thing in the bud" rationalizations; in a just society you punish people for the crimes they've *actually committed*, not the ones that they *might*, or that they might *encourage* ...) And the self-righteous gloating from people like Pat Townson makes me want to puke. Larry Campbell The Boston Software Works, Inc., 120 Fulton Street campbell@redsox.bsw.com Boston, Massachusetts 02109 (USA) [Moderator's Note: Who did Len hurt? Suppose we have the next message describe that in detail. As Moderator, it is far too easy for me to stack the Digest with messages which agree with me ... and to avoid any charges of favoritism I've avoided printing a lot of the stuff which has agreed with my position. But the next message was one I thought really worth sharing. Then we will conclude with a final word from Len Rose himself. PAT]
Greg Hennessy <gsh7w@astsun.astro.virginia.edu> (06/18/91)
In article <telecom11.463.1@eecs.nwu.edu> is written:
The title that you chose borders on libel. How long are you going to
libel Len?
For someone who claims to sympathise with Len, you sure do kick him a
lot.
Greg Hennessy, University of Virginia
USPS Mail: Astronomy Department, Charlottesville, VA 22903-2475 USA
Internet: gsh7w@virginia.edu
UUCP: ...!uunet!virginia!gsh7weck@cmcl2.nyu.edu> (06/19/91)
Writing for the plurality in <telecom11.466.5@eecs.nwu.edu>, Justice mnc@css.itd.umich.edu stated: > In <telecom11.463.1@eecs.nwu.edu> Telecom Moderator (Patrick Townson) > writes: >> Neither the government or your attorney can ram a guilty >> plea down your throat >if you do not want to go along. Check out the >> Federal Court Rules of Procedure: > Have you ever been in a courtroom, Patrick? The only time the judge > goes through that rigamarole is when there's a court full of > reporters. I've sat through plenty of arraignments in my past life as > a reporter; never unless it was a media circus with full theatrics did > anyone make an issue of why the defendant was pleading guilty (aside > from the judge mumbling a single sentence reminding him or her that > the choice to plead guilty is a voluntary one). What PAT describes is Rule 11 of the Federal Rules of Criminal Procedure. It is the *only* means by which a federal judge can take a guilty plea, and the allocution (colloquy between judge and defendant regarding factual basis for plea, etc.) must be made *on the record*. Absent compliance with Rule 11, no guilty plea in federal court will ever hold up on appeal. Period. Mark Eckenwiler eck@panix.com ...!cmcl2!panix!eck
"Michael P. Deignan" <mpd@anomaly.sbs.com> (06/19/91)
In comp.dcom.telecom TELECOM Moderator writes:
[comparison of Al Capone and Len Rose deleted]
You forgot the all important one:
Al Capone had lots of money for his defense. Money means good lawyers
who can adequately protect the rights you are granted under the
Constitution. Len Rose had no money. No money means public defenders
who see a case number, not a person. No money means, very often, very
less-than-adequate protection of those rights you are granted under
our Constitution.
Michael P. Deignan Domain: mpd@anomaly.sbs.com
UUCP: ...!uunet!rayssd!anomaly!mpd Telebit: +1 401 455 0347
[Moderator's Note: What YOU seem to have forgotten is that Len Rose's
defense was mostly paid for by friends. He had a private attorney
most of the time ... not the Federal Defender's Office. PAT]