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

KEVIN MITNICK: THE WILLIE HORTON OF COMPUTER CRIME?

NEEDED: PROSECUTORIAL ETHICS

This chapter has been the hardest chapter to write, the one which requires telling the least comfortable truths. As a former prosecutor, it grieves me to have to write about my former colleagues in less than flattering terms. I identify with the Los Angeles District Attorney's office, the first home of the National Center for Computer Crime Data, though it has been nine years since I left. And I identify with the federal prosecutors who handled the Mitnick prosecution. Their job is not much different than mine was for many years.. . .their importance to public safety undeniable.

But, I'm afraid that prosecutors follow the election returns, and reflect public sentiment, at its worst as well as its best. It appears that the Department of Justice's reading of public sentiment was similar to my little survey. Kevin Mitnick was the perfect scapegoat to satisfy the demands of a public getting more and more concerned with computer crime, and less and less convinced that the federal government is doing anything about it.

I'm haunted by Assistant United States Attorney James Asperger's admission that much of the argument used to keep Mitnick behind bars was based on rumors which didn't pan out. It was bad enough that the charges prosecutors made in court were spread to millions of readers by newspapers around the country. But it is much worse that these untrue allegations were a large part of the basis for keeping Mitnick behind bars without the possibility of posting bail! Prosecutors always have an ethical and legal duty to do justice, not just fight to convict all defendants.

The inherent unfairness of the pretrial detention statues can only be tempered by prosecutors' wisdom in using the laws. Instead of acting as a safeguard to keep the wrong type of cases from being brought, the prosecutors in this case seem to have been all too eager to follow the public prejudices of the moment and abandon their responsibility to work for fairness.

The prosecutor's rigor must begin with conscientious consideration of the appropriateness of pretrial detention. At a minimum, it seems that the ethical prosecutor will be rigorous before deciding to argue that someone accused of computer crime be detained without bail. Where there is no presumption of dangerousness, the rule should be to avoid attempts to detain someone. Since it is difficult to predict future behavior, prosecutors need to have excellent reasons to argue in favor of denying someone bail. Criminologists, psychologists, and even parents can agree about how hard it is to predict a person's dangerousness. Humility would dictate more care before depriving people of their freedom.

Prosecutors also need to be rigorous in collecting the information on which they base their arguments in favor of detention. The prosecutors' bail arguments are less subject to the protections of confrontation and proof beyond a reasonable doubt than their arguments at trial. Thus, their own obligation to present only reliable information must be very high.

Finally, they must be rigorous in resisting the urge to punish "little shits" just because many people do not like them. With the growing public resistance to constitutional protections for those arrested of crimes, prosecutors have an increasing importance in the criminal justice system. Many of the judicial protections of our constitutional rights have been diminished in the 80's based on the argument that prosecutors and investigators will exercise their discretion to protect these rights.

Most notable of these rights is the right to be free from unreasonable search and seizure. Under current law, evidence seized in an unconstitutional way can be used against someone accused of a crime as long as the officer seizing the evidence made a "good faith" effort to follow the law. This rule is clearly based on the expectation that law enforcement personnel will operate in good faith. Failing to operate in good faith is unethical. It is also imprudent, since it could result in the reinstituting of previous sanctions against illegal searches and seizures like the suppression of evidence they produce. In the same way, use of pretrial detention for punitive instead of preventive purposes will eventually convince the public that pretrial detention is a bad idea.

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