http://www.zdnet.com/zdtv/cybercrime/chaostheory/story/0,3700,2169264,00.html Mitnick Trial Delay? Lawyers for imprisoned hacker Kevin Mitnick, aka the Condor, are trying to push back the trial, citing government misconduct. By Kevin Poulsen November 24, 1998 Today, Kevin Mitnick's attorney filed a motion with the US district court in Los Angeles, seeking another continuance of the imprisoned hacker's trial, currently set for January 19, 1999. In his filing, defense attorney Don Randolph argues that the government has been delinquent in handing over information needed to prepare his case. In a surprising development, Randolph also implies that the FBI may have had a mole in the defense camp. "The fact is, Mr. Mitnick has been less than diligent in reviewing discovery materials." --Prosecutor David Schindler According to Randolph's motion, the government missed a court-ordered deadline to provide the defense with copies of prosecution witnesses' statements, finally handing them over last Tuesday-- 27 days late. Additionally, prosecutors have yet to produce an exhibit list, which is overdue since November 19. They're also allegedly withholding some electronic evidence completely. "Due to the government's significant delay in producing discovery as ordered by this court, and due to its continuing failure to produce certain discoverable evidence altogether, the defense cannot competently complete its investigations and prepare for trial in this matter absent a reasonable continuance in the trial date." Richard Sherman, the lawyer for Mitnick's codefendant, Lew DePayne, neither joined in the motion nor opposed it. But he agrees that the government is tardy. "They were a month late in giving us the witness statements, and we don't have the exhibits yet," he told me. "The contention that we have been late with materials is disingenuous," says prosecutor David Schindler. "We've provided thousands of pages of discovery." Schindler is opposed to any further delays in the trial and implies that it's the defense that is dragging its feet. "The fact is, Mr. Mitnick has been less than diligent in reviewing discovery materials and in producing the computer that he was to have produced for the government's review months ago." By court order, Mitnick is entitled to examine the electronically stored evidence from jail on a laptop computer, but only after government experts inspect the system for modems or other contraband. But Schindler, who had not yet seen the motion, couldn't comment on a dramatic allegation that may lead to a splintering of the two defense camps and foreshadow a motion to dismiss all charges against the Condor. Mole Hunt In a surprising turn, Randolph also accuses the government of planting a mole in the defense camp, in the form of my one-time codefendant and friend, Ron "the Garbageman" Austin. Randolph's motion, excerpted here, reviews the alleged misconduct. Compelling evidence of outrageous government conduct has been disclosed to the defense for the first time with the belated production of its witness statements. Reports prepared by the FBI create strong inferences that Ronald Austin, the government's key informant against the defendants, was simultaneously a cooperating government witness/informant and an employee of attorney Richard Sherman... at the time Mr. Sherman was representing Kevin Mitnick.... Austin was privy to confidential communications between Mr. Mitnick and Mr. Sherman which he later disclosed to the government. Moreover, Austin was given direct insight into Sherman's defense strategy at the same time that he was acting as an informant against Sherman's clients.... The FBI records demonstrate that the government agents were certainly aware of Mr. Austin's role in Sherman's office during their interviews... but nonetheless continued to seek information from Austin. The government's failure to cease all interviews with Mr. Austin immediately upon the disclosure of his relationship with Mr. Sherman constitutes, in itself, a serious abrogation of the government's professional, ethical, and legal obligations. The FBI reports attached as exhibits to the motion imply that Austin was not so much a spy as a man caught in the middle. Mitnick began phoning Austin in mid 1994, while on the run, and the two found they had something in common: Justin Petersen, the paid FBI informant who set them both up. When the FBI suspected that Austin had heard from Mitnick, they confronted him. "If Ron Austin was the worst thing Kevin Mitnick had to worry about, I'd be very, very impressed." --Richard Sherman Fearing that he could be charged with aiding and abetting a fugitive, Austin began tape-recording the conversations for the feds. But he maintained a secret line of communication with the Condor via email. When Mitnick was arrested in February 1995, after cybersleuth Tsutomu Shimomura tracked him to his apartment in Raleigh, North Carolina, federal agents seized his computer and eventually found Austin's surreptitious email. Irritated by his apparent double-dealing, they interviewed him on July 18, 1996, only to find that he was working for Mitnick's then-attorney, Richard Sherman. According to the FBI report excerpted here, Austin made it clear that he wasn't going to be a spy. Austin had several conversations with Sherman concerning Mitnick's situation. In one of the conversations, Sherman discussed his defense strategy. Austin said that he was not going to provide this information to the interviewing agents. The interviewing agents advised that they did not want to know Sherman's defense strategy information, and it was agreed that the information would not be provided at all.... Austin said he did not want to be perceived as attempting to find out information about Sherman's activities and then relaying it to the FBI. The FBI report includes nothing to imply that Austin actively spied on the defense team, but at one point, he apparently told the agents that Mitnick suspected him of playing a role in the arrest. Don Randolph, Mitnick's current defense attorney, may cite this as an example of a confidential attorney-client communication that fell into the FBI's hands through Austin. If Randolph can prove that the government had improper access to defense secrets, it could lead to a motion to throw out the entire case against Kevin Mitnick. For now, Randolph wants more time to look into it. "Obviously," the motion reads, "the defense is obligated to investigate all details relating to the government's contact with Mr. Austin, after which the defendant will request all appropriate remedies." Richard Sherman, who now represents Mitnick's codefendant, Lew DePayne, pooh-poohs the mole hunt. "If Ron Austin was the worst thing Kevin Mitnick had to worry about, I'd be very, very impressed," he told me. "He didn't get any information from me on the Mitnick case. He didn't even want to talk to me about the Mitnick case." "I'm making a motion to sever DePayne's case," Sherman adds. The Mitnick motion is tentatively set to be heard on November 30, at 1:30 p.m.