In a complaint filed on September 28, 1993, Kevin stands accused of a single count of computer fraud under California Penal Code 502(c)(2). That statute essentially states the following: Whoever "knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer network or computer system" is guilty of computer fraud.
Section 502(a)(1) defines "access" to mean to "gain entry to, instruct or communicate with the logical, arithmetical, or memory function resources of a computer, computer system or computer network."
Section 502(a)(7) defines "supporting documentation" as "all information, in any form, pertaining to the design, construction, classification, implementation, use or modification of a computer, computer system, computer network, computer program or computer software, which information is not generally available to the public and is necessary for the operation of a computer, computer system, computer network, computer program, or computer software."
Actions Alleged Under the Complaint
The Interaction between California's Constitutional Speedy Trial Rights When a Defendant is also being Held for a Federal Case
Following Kevin's sentencing in North Carolina in June 1997 for the violation of supervised release, Kevin filed a request in September 1997 under CPC 1381.5 demanding that, in light of his status as a sentenced federal prisoner, the state immediately bring Kevin to trial.Once filed with the relevant District Attorney's office, a 1381.5 filing mandates that the D.A. contact the warden of the federal institution in which the claimant is housed to make arrangements for the warden to release the claimant to state custody temporarily to resolve the pending state charges.
What Did the District Attorney Do?
The District Attorney in whose jurisdiction Kevin's California complaint was filed (Deputy District Attorney John Zajec, of Van Nuys, California) failed to contact the warden of the institution in which Kevin was housed, and instead contacted Assistant U.S. Attorney David Schindler, the lead prosecutor in the 25 count indictment currently pending against Kevin.
AUSA Schindler wrote back to DDA Zajec stating that he had no objection if Kevin was transferred into state custody as long as the state would agree not to grant bail in the state case. AUSA Schindler then contacted Donald Randolph, Kevin's appointed counsel in the federal case. Randolph responded that he had no position about the request insofar as he was not counselor of record in the state case, but that Kevin could not be transferred into state custody for extended periods of time, as that would interfere with Randolph's preparations for the federal case.
District Attorney Failed to Comply with Statute
Most importantly, DDA Zajec never contacted the warden of the federal institution as required under the statute. Interestingly enough, CPC 1381.5 requires the D.A. to bring claimant to trial within 90 days after a demand for a speedy trial is made persuant to 1381.5, and the warden of the federal institution has been contacted and agrees to the transfer. The statute is unclear about any sanctions that may apply in the circumstance currently at hand: namely, DDA Zajec failed to contact the warden of the federal institution in which Kevin Mitnick is housed, in violation of CPC 1381.5.
What Are the Legal Principles Involved?
Kevin's Sixth Amendment right to a speedy trial in the state case has been violated by the State of California. Indeed, Kevin has filed the claims required pursuant to the California Penal Code to demand a speedy trial. Those demands essentially lay dormant for nine (9) months, as the District Attorney failed to meet his obligations under the statute. Once DDA Zajec failed to contact the warden of the federal institution within a reasonable length of time, the 90 day period mandated under the statute ought to have begun, pursuant to Kevin's demanding a speedy trial under CPC 1381.5 in September 1997.
In late 1998, Kevin contacted the State Public Defender's Office and forwarded information about his claim to them. The Public Defender's Office in turn filed a motion with a Municipal Court Judge to have a hearing to dismiss the state's case, based on the state's failure to comply with Kevin's demand for a speedy trial under the Sixth Amendment and under CPC 1381.5.
What Did the Court Do?
Kevin's motion demanding a speedy trial was rejected on two grounds, as claimed by Los Angeles Municipal Court Judge Michael Solner in a decision handed down on November 23, 1998 (comments taken from transcript): 1) that Kevin wasn't housed within a federal correctional institution, according to an illogically close reading of CPC 1381.5 (wherein Judge Solner held that the Los Angeles Metropolitan Detention Center is not a federal correctional institution); and 2) that Kevin's case doesn't fall under the purview of CPC 1381.5, because he was pending trial in another federal case.
Extraordinary Misreading of the Statute
Thus, the complaint issued by the State of California has been pending for six (6) years, Kevin has filed a demand for a speedy trial pursuant to the California Penal Code, and a Municipal Court Judge has ruled that the federal prison in which more than a hundred inmates are serving their federal sentences does not fit the definition of a "federal correctional institution."
Prima Facie Evidence to Prevent Kevin Mitnick's Release
We believe this provides prima facie evidence of an agreed-upon plan between the federal and state governments to prevent Kevin Mitnick's release: as long as the state charges are pending, and even if Kevinšs plea agreement to the federal charges is accepted by Judge Pfaelzer, Kevin will not be eligible for release to a half-way house in 3 months (as he would be if no state charges were pending), and he cannot serve his time at a federal prison camp (Lompoc, California, where stock manipulator Ivan Boesky did his time, is an example of one such federal prison camp). As long as the state charges are pending, Kevin Mitnick will have to serve all of his remaining sentence if the plea agreement is accepted by Judge Pfaelzer in federal lockup, and upon release, he would be transferred to Los Angeles County Jail where he would be held in lieu of $1 million bail until such time as the state charges are resolved.
What Happens to the Federal Sentence When Kevin Gets Transferred to State Custody?
Upon transferral from federal custody into state custody, and if he has not completed his federal sentence, Kevin's accumulation of federal time spent in satisfaction of his federal sentence will immediately stop. In contrast, when Susan McDougal was in federal custody at the MDC, the state and federal agencies cooperated completely, enabling Susan McDougal to answer pending state charges while fulfilling a federal sentence at the same time.
Thus, Kevin has been placed in yet another double-bind, whereby no action that he takes will work to his benefit: if he chooses to serve out the entirety of his federal sentence, he must do so under federal lockup, without the opportunity of fulfilling his sentence at a prison camp or halfway house. If he chooses to contest the state charges while in federal custody, he will be transferred to state custody, and his accumulation of time in fulfillment of the federal sentence will stop. We believe that the record in Kevin's case presents a clear and compelling argument that there have been, and there will continue to be, gross violations of Kevin's Constitutional rights in both the state and federal cases currently pending against him.
Currently, Kevin has not retained counsel to answer the pending state complaint. Any attorneys interested in working on the case may indicate their interest in an email sent to the following address: firstname.lastname@example.org