jet@karazm.math.uh.edu (J Eric Townsend) (06/18/91)
I DID NOT WRITE THIS. PAT TOWNSON AND I ARE (THANKFULLY) NOT RELATED. Pay close attention to the last paragraph, which includes an attack on this group... In article <telecom11.463.1@eecs.nwu.edu> telecom@eecs.nwu.edu (TELECOM Moderator) writes: >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 -- J. Eric Townsend - jet@uh.edu - bitnet: jet@UHOU - vox: (713) 749-2126 Skate UNIX! (curb fault: skater dumped) -- If you're hacking PowerGloves and Amigas, drop me a line. --