1 IN THE CIRCUIT COURT OF THE STATE OF OREGON 2 FOR THE COUNTY OF WASHINGTON 3 4 STATE OF OREGON, ) ) 5 Plaintiff, ) ) 6 vs. ) No. C940322CR ) 7 RANDAL LEE SCHWARTZ, ) ) 8 Defendant. ) Volume 12 9 10 11 TRANSCRIPT OF PROCEEDINGS 12 13 BE IT REMEMBERED THAT on the 25th 14 day of July, 1995, the above-entitled matter came 15 on for Hearing before the HONORABLE ALAN C. 16 BONEBRAKE, a Circuit Court Judge. 17 18 APPEARANCES 19 Thomas J. Tintera Washington County Deputy District Attorney 20 Representing the State of Oregon 21 Marc Sussman Attorney at Law 22 Representing the Defendant 23 24 25 2 1 MORNING SESSION 2 BEGINNING AT 9:40 A.M. 3 JULY 25, 1995 4 5 (Whereupon, the following 6 proceedings were held in 7 open court, out of the 8 presence of the jury:) 9 THE COURT: We spoke last night, 10 counsel and I did, on jury instructions. 11 Mr. Sussman expressed some lingering concern about 12 Mr. ***Speck's ability to continue as a juror in 13 this case. I believe -- is there anything that you 14 want to address me on this morning? 15 MR. SUSSMAN: Yes, Your Honor. At 16 this point in the -- the record should reflect the 17 concern that I have, the reason that I would have, 18 I would ask the Court to allow the alternate to be 19 seated at this time would be that despite 20 Mr. Speck's' obvious interest in continuing the 21 case, his commitment, as stated on the record, to 22 carefully deliberating, you have an artificial time 23 limitation that's now been put on the jury 24 deliberation and now we will get the case to the 25 jury probably midday today and the jury basically 3 1 has to deliberate and make a decision to -- at 2 least there will be pressure to get that done today 3 because of Mr. Speck leaving. 4 It's entirely possible that the jury 5 could, given the complexity of the facts in the 6 case, deliberate for longer than the time allowed. 7 And what I want to avoid is a potential situation 8 for either party -- I'm obviously representing 9 Mr. Schwartz's interests -- it faces a situation 10 where there is internal pressure within the jury 11 and its deliberation to come to a conclusion 12 quickly in order to meet that time schedule. 13 The potential problem stated in the 14 case of State v. Jones, which I pointed out to the 15 Court yesterday, and that was a case where the 16 information, of course, came to defense counsel 17 after the verdict had been rendered where there 18 were discussions during deliberations about 19 suggestions by some jurors that they should hurry 20 up to come to their verdict because of some 21 concerns about getting to -- tending to some 22 personal business. 23 In that case, the Court was 24 unwilling to go behind the deliberations and 25 respecting the sanctity of the jury deliberation 4 1 would not consider that as grounds for granting a 2 new trial and points out the potential that we face 3 that if we -- that in order to assure that all the 4 parties have a fair deliberation free from any 5 outside pressures, that -- because we see from that 6 case that this kind of thing can happen, that the 7 only way that really seems assured to avoid any 8 problem like that would be to seat the alternate. 9 THE COURT: Mr. Tintera, anything? 10 MR. TINTERA: Your Honor, the 11 defendant had three peremptory challenges and knew 12 of Mr. Speck's' time restraints at the beginning of 13 this trial. 14 The juror, himself, has -- and they 15 didn't use them. The juror, himself, has said that 16 this is not a problem and that he will be a good 17 juror, a fair juror and an impartial juror. I 18 don't think we can ask any more of Mr. Speck. 19 THE COURT: Well, I have some 20 recollection that early on in this case, I asked 21 counsel about the possibility of excusing Mr. Speck 22 and replacing him with the alternate. And my 23 recollection, and either of you can correct me if 24 I'm wrong, is that counsel concurred that I ought 25 to talk with Mr. Speck and if he wanted to serve, 5 1 let him serve. So I took that approach and the 2 record will disclose that -- I don't know what day 3 it was, that I confronted Mr. Speck, basically, I 4 think, and inasmuch as told him that he could be 5 excused if there was going to be a problem and he 6 at that time said no, he would like to continue 7 serving. 8 And it was that time when counsel, I 9 think, defense counsel, had an opportunity to talk 10 with him briefly and explain appropriately the 11 concerns that we had. And I do recall Mr. Speck's' 12 answers at that time and he would devote such time 13 as was necessary and appropriate and he understood 14 the seriousness of all this. And I just at this 15 point don't believe that there has been any showing 16 of a likelihood that his planned vacation in the 17 San Juan Islands that was set to begin yesterday is 18 going to be a problem. 19 My intent in this case, as it 20 usually is with cases that are not complex -- let 21 me put a footnote in the record here. This case is 22 complex because of the technology involved, but the 23 facts really are not complex. The factual issues 24 are not all that complex. In other words, the 25 questions to be decided by the jury really -- and 6 1 if you listen to the instructions that I will be 2 giving you, the instructions are not lengthy and 3 the factual determination to be made by the jury 4 are not lengthy, nor are they complex. And I have 5 every reason to believe that this jury is going to 6 be able to deliberate and reach a verdict today. 7 And it would be my intent to have them deliberate 8 on into the evening until they either reach a 9 verdict, or if it should be, I doubt it, but if it 10 should be that they report to me they will never be 11 able to reach a verdict. In any case, my belief is 12 we're going to conclude this case today. 13 I assume what you're saying here, 14 Mr. Sussman, you're asking that Mr. Speck be 15 excused and then be replaced by the alternate and 16 I'm denying that motion. 17 We did talk with -- I did talk with 18 counsel about instructions and I've gone through 19 them in a little more detail. I had one question 20 that had to do with the definition to be given with 21 the threat instructions, and Mr. Tintera had asked 22 for the definitions, which is Instruction No. 1800, 23 that 129 and 10 be given. And I added in 3 because 24 it was a request by the defense and I thought it 25 was appropriate. 7 1 But in looking at those, I believe 2 No. 2 as requested by the State is the definition 3 of "conceal," and that's not a word that I think is 4 in any of the instructions that I'm going to be 5 giving. In other words, it might be interesting 6 for the jury to know how we define "conceal," but 7 it's not something that's going to be given them in 8 the instructions. 9 I looked in the Criminal Code and 10 the only place I see the word "conceal" used is 11 when there is a charge of theft by receiving. 12 There one of the alternative means is to conceal 13 property from the owner. That's not the charge 14 here. 15 Mr. Tintera, unless I'm convinced 16 that "conceal" is a word that I will be giving in 17 these instructions when I describe the elements, I 18 don't think it's helpful to the jury to define it 19 for them. 20 MR. TINTERA: Well, I think it is 21 because the theft is a larger definition than theft 22 by receiving. And concealing property is a way of 23 asportating its value to a particular person. 24 For instance, in your analogy at the 25 judgment of acquittal, when the person moves -- at 8 1 Nordstrom's moves property to an area, then 2 concealed conceals it and removes it from the value 3 of the store owner by placing it in an area where 4 they can later cart it off, the purpose of 5 Nordstrom displaying the merchandise is to sell it. 6 By that person moving it to an area where it can't 7 be sold ***ALD for its own purpose is going to be 8 concealed there and it is not merely theft by 9 admitting but theft by concealing. 10 I think that's a legitimate argument 11 and I think that instruction -- 12 THE COURT: I don't question that's 13 a legitimate argument, but I'm seldom in the mode 14 where I define terms for the jury in instruction 15 terms that aren't used in other instructions in the 16 case. And I have not found a place in my 17 instructions where I will give to the jury during 18 an instruction the word "conceal" as some method of 19 committing theft or a term used anywhere in any of 20 the instructions, so if I don't tell them anything 21 about concealing property, why should I define it 22 for them? 23 MR. TINTERA: Because theft includes 24 concealing property. That is why I'm asking for 25 the definition. It includes appropriating property 9 1 to another, of another to oneself, includes 2 depriving another of property and includes 3 concealing property. 4 THE COURT: Can you find that in the 5 definition for what you just said exists or in the 6 statutes? 7 MR. TINTERA: Unfortunately, I 8 didn't bring my statute book. If I could borrow 9 the judicial statute book. 10 THE COURT: Sure, I'd be pleased. 11 Only place I found the word "concealed" used 12 anywhere in the law with regard to property, it was 13 just a quick look, was under the theft by receiving 14 statute. 15 I'm not suggesting that it might not 16 be good argument that you might not request the 17 jury draw inferences regarding concealed property 18 and all that, it's just not in the law that I will 19 give them. 20 MR. TINTERA: 164.015 Sub 1 21 indicates that "a person takes, appropriates, 22 obtains or withholds such property from the owner 23 thereof." 164.015 Sub 1. 24 THE COURT: Read that again. 25 MR. TINTERA: "Takes, appropriates, 10 1 obtains or withholds such property from an owner 2 thereof." And that is the general definition of 3 Theft in the First Degree or Theft. It's the 4 general definition of Theft. Conceal is one theory 5 that fits under appropriates, obtains or withholds. 6 THE COURT: Well, then I should 7 consider, if that's the case, giving a different 8 definition of theft than I will give to the jury, 9 one that might include a charge of theft by 10 receiving or theft by concealing property. 11 I guess what I'm getting at here is 12 in the definition of theft that I will be giving to 13 the jury, it doesn't include an alternative that 14 includes -- 15 MR. TINTERA: What is the definition 16 that you are -- 17 THE COURT: Well, it's the one 18 that's commonly used in burglary cases where a 19 person unlawfully enters into a premises with the 20 intent to commit theft. And I can find that for 21 you very shortly. 22 MR. TINTERA: Well, I would ask the 23 Court to instruct the jury that "theft" means to 24 take, appropriate, obtain or withhold such property 25 from an owner thereof. That's right out of the 11 1 statute. 2 THE COURT: Now I need the judicial 3 copy back. 4 MR. TINTERA: Yes, I have not marked 5 the judicial copy. 6 THE COURT: That's 164.015 Sub 1? 7 MR. TINTERA: Yes. 8 THE COURT: If I do what you have 9 suggested, I still haven't used the word "conceal." 10 MR. TINTERA: I think it helps to 11 explain "withhold." If you would like to -- well, 12 I think we need some definition as to the acts. 13 It's important to the State's theory that the jury 14 know that theft includes conduct that assists the 15 person in converting stolen property to his own 16 use. That is an essential part of my argument that 17 I have prepared for the jury and it is included 18 within the definition of "theft." 19 Theft does not have to be an 20 asportation outside of the building of the owner. 21 A theft can occur within the premises. The 22 definition of "conceal" helps to explain that fact 23 to the jury. 24 THE COURT: Mr. Sussman, anything 25 you would like to say? 12 1 MR. SUSSMAN: Yes, Your Honor. I 2 think the definitions on the theft statute that 3 apply as this case is pled are clearly those 4 definitions in 164.015. The Sub 1, which talks 5 about taking, appropriating or withholding, are 6 defined in the definition section of 164.005, and 7 those are the definitions that we concur apply and 8 create the framework for the State's argument. 9 What the State is attempting to do 10 is in general a concealment based on theft which is 11 neither pled nor applicable under the terms of the 12 statute. And in fact, rather than helping the jury 13 understand, what it does is inject an element or a 14 definition into the theft -- into the statute, into 15 the definition which otherwise is not there in 16 164.005 as one of the statutory definitions. 17 ***(that's the same statement he made right before 18 this.) 19 THE COURT: 164.015 does have the 20 general definition of "theft." The uniform 21 instruction 1035 in there it says, "A theft occurs 22 when a person takes or withholds property from the 23 owner of the property with the intent either to 24 deprive the owner of the property or appropriate 25 property for the person's benefit." 13 1 That's basically what you've asked 2 for, isn't it, Mr. Tintera? That's thefts 3 described in 164.015. "A person takes, 4 appropriates or withholds." 5 MR. TINTERA: Obtains or withholds. 6 THE COURT: Well, I can add the 7 "obtains or withhold" in. I don't know why they 8 left that out. 9 MR. TINTERA: There is no definition 10 of "takes" and there is no definition of "obtains." 11 "Conceal," in the Uniform Jury Instructions, and I 12 don't mind if we change it to "takes" or "obtains," 13 but that is the definition that explains to the 14 jury what those terms mean. They are not explained 15 anywhere else. That's a classic action in a theft 16 act. 17 And the "conceal" instruction 18 explains the taking or obtaining, in particular the 19 obtaining of the property, that it does not have to 20 leave the particular premises and it can be done 21 without actual hiding or secreting, but any acts or 22 conduct that assists the person in converting the 23 property to their own use. 24 MR. SUSSMAN: Your Honor, I believe 25 that's a matter for argument and -- 14 1 THE COURT: Well, it clearly can be 2 argued. The only question is whether or not it's 3 appropriate for the Court to instruct on the 4 concept when I'm not using the term. 5 MR. SUSSMAN: I would have to 6 strenuously ***object to injecting a term that only 7 appears in the theft by receiving statute which the 8 terms of which do not apply. 9 THE COURT: Well, I'm going to 10 decide this. Thank you. 11 Mr. Tintera, I'm declining to give 12 the concept of "conceal." I understand it's 13 something that you intend to argue, and you may 14 argue appropriately, but the terms that I define 15 for the jury will be terms that I use in the 16 instructions and I'm not using the term "conceal" 17 in any of the instructions that I'm giving and so 18 there is no necessity to define it for them. 19 That's my ruling on that. 20 Bring in the jury and we'll proceed. 21 MR. TINTERA: Well, unfortunately, 22 one of the props I've made for the jury includes 23 that definition. Either -- so -- 24 THE COURT: I apologize that we're 25 getting -- 15 1 MR. TINTERA: Now he's going to be 2 objecting in front of the jury. There is no way I 3 can change this now, I don't think. 4 THE COURT: Well, I'd give you a 5 delay if you need to make a change in some fashion. 6 I apologize we're addressing this at this late 7 point. It wasn't until my final reading of the 8 instructions this morning that I began to have 9 concern about the definition of "conceal," and 10 that's the reason I brought it up now. 11 Now, if there is some flip chart or 12 something that you have prepared, is that it? 13 MR. TINTERA: I'll handle it, Judge, 14 thank you. 15 THE COURT: Well, if you wish to 16 have a minute to change that, I'd give you a 17 minute. 18 MR. TINTERA: No, thank you. 19 THE COURT: Bring in the jury. 20 (Whereupon, the following 21 proceedings were held in 22 open court, the jury being 23 present:) 24 THE COURT: Good morning, folks. 25 We're ready now for argument by counsel and then 16 1 I'll instruct you and then you'll begin your 2 deliberation. 3 In argument, the State gets to go 4 first. 5 Mr. Tintera, you may proceed. 6 MR. TINTERA: Thank you, Judge. 7 Good morning. We have been here, 8 this is week three, and at the start of this case, 9 we had people who knew nothing about computers, it 10 was a new area to them, and some people that had 11 some knowledge, and hopefully, although it's 12 difficult to know, through the course of this 13 trial, you've all followed along through the 14 concept of what we have been talking about and 15 received a bit of an education about how computers 16 work, what's appropriate, what's inappropriate, how 17 people use them in their work, how Intel, as a 18 corporation, uses computers, and the people that 19 work there and how they use them. 20 At this point in the trial, each 21 counsel has an opportunity to speak to you both 22 about what the charges are in particular and how 23 the law or the facts apply to those charges. You, 24 as a jury, are the people that determine what the 25 facts are. That is part of your job. You do it by 17 1 looking at the witnesses, deciding who you can and 2 who you can't believe. 3 That's a judgment. We all like to 4 think that when people raise their right hand and 5 swear to tell you the truth, that they're going to 6 do that. That may not be true. That may not be 7 accurate. Some people may -- for their own reasons 8 or motives may not do that. That's part of your 9 job. 10 You're not to look into the future 11 and say what will happen, you're to look in the 12 past and tell us what you think has occurred. 13 That's your job. As a part of that, there is a 14 tendency to say, "What's going to happen if I do 15 this?" You can't do that. You have to look at 16 what happened in 1993. There is nothing we can do 17 to change it and we let the chips fall where they 18 may. People have to be accountable for their 19 behavior. 20 I'd like to go over the charges with 21 you. This chart doesn't stand up very well, so I 22 have to use this. 23 There are three counts that are 24 alleged. Count 1, this is the Gate script that we 25 have been talking about, and what Count 1 says, 18 1 between the dates of November 1st, 1992, 2 November 1st, 1993 -- and this is, it also includes 3 the defendant, Randal Schwartz, in Washington 4 County, Oregon, did he knowingly, was he aware of 5 his conduct, did he know what he was doing and 6 without authorization alter a computer or computer 7 network, Mink and Brillig? That's in its bare 8 essence. 9 So although this trial is laced with 10 computer terminology, it really is a simple 11 concept. Did -- by the installation on Mink and 12 Brillig, did Mr. Schwartz knowingly and without 13 authorization alter those computers? 14 Obviously, the keys are -- 15 MR. SUSSMAN: Mr. Tintera, would you 16 mind moving that back a bit? 17 Thank you. 18 THE COURT: Can you all see there? 19 MR. TINTERA: -- without 20 authorization. Because as we know, the term 21 "alter," we have heard talk about, well, if you 22 typed in your name, wouldn't that alter a computer? 23 Sure, it would. But the point is, that's with 24 authorization because that's how Intel gets their 25 work done. 19 1 Whatever they are doing with those 2 3,000 computers that they have at Hawthorn Farms, 3 the "with authorization" is doing the work. The 4 altering that we're talking about is without 5 authorization. That's what we're talking about. 6 Did he alter a computer beyond the policies of the 7 Intel Corporation? 8 I'm not going to go into all the 9 facts that established these counts right now, but 10 the second count involves between the timeframe of 11 August 1st, 1993 and November 1st, 1993, did the 12 defendant, in Washington County, Oregon, knowingly 13 access or use as a computer or computer system for 14 the purpose of theft? And that specifically 15 references the Supercomputer Division or SSD 16 passwords file. Did he knowingly know what he was 17 doing, access or use the computer system for the 18 purpose of committing theft? 19 And our last count is really an 20 extension of the theft of the Supercomputer 21 Division file and involves the same elements, 22 knowingly accessed or used a computer or computer 23 system for the purpose of committing theft of the 24 individual users' passwords. 25 So this count is taking the 20 1 Supercomputer Division password file and this is -- 2 Count 3 is running Crack against the Supercomputer 3 password file to take the individual users' 4 passwords. 5 So through the trial, as I tried to 6 explain to you in my opening statement, we talked 7 about did he have authorization? Did he know it 8 was within Intel's policies? In fact, many of the 9 people from Intel that were here, supervisor, all 10 of them were produced to establish one thing, that 11 he was never authorized to copy the Supercomputer 12 Division password file and he was never authorized 13 to put in a gate program on any of the computers, 14 Mink or Brillig, that no one in a position of 15 authority gave him that right, privilege, whatever 16 you want to call it. 17 What happened was, Mr. Schwartz, 18 because of his expertise and special knowledge with 19 computers, granted himself a special privilege for 20 computers. In spite of what he knew to be Intel's 21 policy, he granted himself the special privilege 22 because of his special knowledge of one, taking, 23 stealing the SSD password file. He didn't have a 24 right to it. He knew that. He essentially told 25 you that. 21 1 Running Crack against it, we'll get 2 into his own particular purposes. But he said they 3 were for his own purposes. He converted it to his 4 own use, not for Intel's use, and he put this Gate 5 program on because it was easier for him. That's 6 the way he wanted to do it. That's what he wanted 7 to do. 8 But the fact of the matter is, he's 9 getting paid $45 an hour by the Intel Corporation 10 and part of his responsibilities is to follow the 11 rules. If he is not happy with the way that he 12 gets his e-mail, then don't work there. 13 Intel, as a corporation, has a right 14 to set their own security policies. As Mr. Cower 15 told you, it is a risk that Intel is not willing to 16 accept to have an incoming connection through their 17 fire wall and that is a decision that Intel is 18 entitled to make, not Mr. Schwartz. 19 Now, what does "theft" mean? The 20 definitions of theft -- ignore this one, "conceal," 21 for the time being. "Theft" means to appropriate 22 property of another to oneself. Theft, as all of 23 our laws, have evolved over time. 24 Part of the rules of society before 25 we had legislatures, before we had formalized 22 1 rules, there was understandings of groups of people 2 that you just don't do certain things. And those 3 understandings eventually have been codified into 4 law. You don't take your neighbor's food or 5 whatever. You just don't -- there are certain 6 things that we know. 7 We know that in the computer 8 industry, there are certain things that people that 9 work in computers know. It's that sense of trust 10 that eventually gets translated into a criminal 11 charge by the Legislature. So they put in there 12 that you can't go into your neighbor's house and 13 steal the TV. We all know that. Just as 14 Mr. Schwartz knew he couldn't go into the 15 Supercomputer Division and take their password 16 file. 17 So what does appropriate property to 18 another -- of another to oneself, to exercise 19 control over property of another under such 20 circumstances as to acquire the major portion of 21 the economic value or benefit of such property? 22 Well, with a password file, what's 23 the benefit of an encrypted password file? One, 24 it's supposed to stay in the Supercomputer 25 Division, not supposed to be copied over to his 23 1 particular computer. But the benefit of the file 2 is that it stays where it is. It is of limited 3 access, in spite of what Mr. Mayer said, that this 4 is a public access. It is public for the 5 authorized users. Mr. Schwartz was not an 6 authorized user. 7 When you look at, as Mr. Schwartz 8 surely must have, State's Exhibit No. 26 is a 9 readout of the passwords on May -- September 24th, 10 and it shows which ones are working and which ones 11 aren't. And Mr. Schwartz marked this one with this 12 red arrow as his, and right at the end in capital 13 letters, is "disabled." This is the response to 14 his inquiry into the Supercomputer Division 15 password file, his user name is disabled. He knew 16 that, but just in case he'd forgotten, it's right 17 here on his computer screen. And it goes back to 18 October 21st and on October 6, "disabled." So he 19 clearly knew that he wasn't to be appropriating 20 that particular property to himself. 21 And the question, does that deprive 22 from the rightful owner, the Intel Corporation, the 23 benefit of the property? Well, we also know that 24 based on his actions to put back what he had done, 25 as Mr. Cower said, it cost the Intel Corporation 24 1 over $60,000 to fix this, to place their security 2 back where it was supposed to be in the first place 3 before Mr. Schwartz meddled with it. 4 Deprive another of property, to 5 withhold the property of another under such 6 circumstances that the major portion of its 7 economic value or benefit is lost. 8 Count 3, when we were asked after 9 the Crack program had run on the Supercomputer 10 password file what value did those passwords have, 11 well, since they were compromised, they had no 12 value and the defendant demonstrated that by his 13 use of Ron B to go into the Supercomputer Division 14 and steal the password files. As he said 15 himself -- and when you evaluate a witness' 16 testimony, you can evaluate how they testify and 17 who they would answer questions for and who they 18 would not answer questions for. That's a 19 legitimate inquiry for you. And did you notice any 20 differences between how Mr. Schwartz talked to you 21 when he testified -- when Mr. Sussman was following 22 their questions and when I asked him questions? 23 Now, admittedly, I'm fairly close to 24 the facts of this case and sometimes it's difficult 25 for me to get the proper perspective, and that's 25 1 why I rely on you. But it seemed that when he was 2 answering questions from his attorney, he would 3 look to you and he would gesture and he would just 4 talk. But when he -- when I asked him questions, 5 well, either he didn't answer the question, but he 6 certainly was not interacting with you in the same 7 way. **(ck) 8 But look at all the other witnesses. 9 Was there any other witnesses -- even Lou Poehlitz, 10 frankly, I didn't understand much of what he said, 11 he wasn't trying to hide anything. He was 12 answering the questions as every witness except 13 Mr. Schwartz, appeared to answer every question as 14 best they could. You can look at that in assessing 15 his testimony as to whether it should be given any 16 weight or not, and that's a judgment call that you 17 can make. 18 So what we're talking about in 19 regard to the theft definition, did he appropriate 20 property to himself and gain, acquire the benefit 21 of such property? And did he deprive another? 22 Well, you're going to hear the 23 Supercomputer Division password file was right 24 where it was supposed to be, it was still over in 25 the Supercomputer Division. But the point is, it 26 1 was not secure because he had violated a position 2 of trust to use the Ron B password to go in there 3 when his account had been disabled, to take it, and 4 that compromised the security that the Intel 5 Corporation had and that's what we're talking about 6 in Counts 2 and 3. 7 Now, when we're talking about 8 various statements, you'll be hearing instructions 9 about the defendant's statements and this is an 10 area that we need to be careful on. This is an 11 area that the Judge will tell you that you need to 12 make sure that the defendant made the statement and 13 clearly expressed what he intended to say. "Did 14 the witness correctly hear and understand what the 15 defendant said? Did the witness correctly relate 16 what the defendant said? And did the witness 17 intentionally or mistakenly alter the words used by 18 used by the defendant, thereby changing the 19 meaning?" So you want to look carefully at what he 20 said, and rightly so. 21 And let's look at November 1st, 22 1993, when the facts were fresh in Mr. Schwartz's 23 mind. He was talked to by the police, advised of 24 his constitutional rights, told he didn't have to 25 say anything. He cooperated with the police and 27 1 answered their questions. He talked to three 2 different people, and each of them testified to you 3 as to what he what he said, and there is a common 4 thread. 5 Mr. Lazenby spoke to him first, and 6 that was alone. And Mr. Lazenby, in quotes, 7 because the statement impressed him, he wrote it 8 down, he quoted it, made a report out of it, and in 9 quotes, the defendant told Paul Lazenby after he 10 knew what they were there for, talking about his 11 crack activities, deciphering passwords, talking 12 about the gate program, he told him, "I needed 13 them" -- by "them" he's referencing the 14 passwords -- "in case they caught me doing it and 15 knew they would shut me down. So the more 16 passwords I had, the longer I could continue doing 17 what I wanted to do." 18 Special knowledge, he granted 19 himself a special privilege because he was very 20 smart with computers. He decided that he knew what 21 was best for the Intel Corporation, in spite of 22 what they had told him repeatedly, that they found 23 to be an unacceptable security risk. 24 He told Paul Lazenby on November 25 1st, "I needed the passwords in case they caught me 28 1 doing it and they would shut me down. So the more 2 passwords I had, the longer I could continue to do 3 what I wanted to do." He said he had the 4 capability to do it and he knew he could do it. 5 Asked if it was wrong and if he knew 6 it violated Intel's policy, in quotes, "Yes, it is, 7 but I knew I could do it anyway." That arrogance 8 is what brings him here today. If he is working 9 for a corporation, the laws of this state 10 essentially say without authorization, you cannot 11 do certain things. If he is not willing to follow 12 their policies and rules in the laws of this state, 13 then he will either be terminated, but if he's 14 going to be accepting the $45 an hour, then he's 15 got to follow their rules. 16 They set the rules and if it's an 17 unacceptable security risk to have an incoming gate 18 and the fact of whether it's secure or not, 19 although we have spent a lot of time talking about 20 it, is really a false issue. It's a red herring in 21 this case because it doesn't matter if it was 22 secure at all. What matters is whether it was 23 there or not and whether the defendant put it 24 there. 25 What we're talking about is not 29 1 whether it was secure. Intel policy is that it's 2 not to be there. He works for Intel, he's required 3 to follow the policy. So the question is, does he 4 know that policy? 5 Let's look at what he told Jim 6 Lilley. Defendant admits to gate and that it 7 violated Intel policy and was technically illegal. 8 Defendant said he knew this. 9 In regard to the Crack program, 10 defendant initially says for security, but he knew 11 his activities were against Intel policy and 12 technically illegal and he did it to enable 13 continued access to the Supercomputer Division. 14 What he told Rich Cower, that he 15 said he knew gate and cracking against Intel 16 policy. He worried that gate would be found and he 17 needed the passwords so he would have another 18 computer to land the gate on. 19 So of all the password files that 20 were available to him in the Intel Corporation, he 21 says he was just testing out the Snoopy computer, 22 but we know he had what is called root access and 23 System Administrator duties on ***programs of the 24 Domain Name Service, Clayton Kirkwood and Bob 25 Wilcox, the thing that changes Mink into numbers, 30 1 that's how I look at it, and he could have copied 2 password files to them from there to run on this. 3 But why would the Supercomputer 4 Division password file be important to him in 5 regard to the gate program? Well, we heard from 6 Dirk Brandewie that there were nine or so computers 7 at this time that allowed Internet access, Mink 8 being one of them. Except for Super -- the SSD 9 area, that area was rich with computers that 10 allowed Internet access, and that is why he chose 11 that password file; not for Intel security, but so 12 that he could get their password file because those 13 machines that he would then have access to would 14 allow him to place the gate there because they had 15 the Internet access. 16 That's why he chose Supercomputer 17 Division over the Domain Name Server password file. 18 There was a specific intent in his actions and it 19 was to breach security, violate the position of 20 trust and go into the Supercomputer Division. 21 So he had already been closed out of 22 Mink. When they caught him on Brillig, he wanted 23 to have his rich access area to put on his gate 24 program. 25 Let's talk about Count 1. 31 1 "Knowingly and without authorization." The State 2 has proven this to you beyond a reasonable doubt 3 three different ways, four if you count the 4 defendant's system, one of which, I don't know if 5 you notice, was not apparent when we started trial. 6 The first one was Seth Bradley. 7 Let me get my dates correct. I know 8 people have been a little loose with them. 9 In the fall of 1991, Seth Bradley 10 talked about a two-way door that had been set up by 11 the defendant in regard to Carnegie Mellon. Seth 12 Bradley was his supervisor. In the fall of 1991, 13 he told you that he found that gate, found out 14 about it, and he knew it violated Intel's policy. 15 You'll hear a lot about independent 16 contractors don't have -- they can do whatever they 17 can do to get the job done, they don't know policy, 18 but Seth Bradley said that wasn't exactly true. He 19 said, "We went over policy. I talked to him about 20 policy. He knew what the policies were." That 21 makes sense because how can someone administer 22 other computers in IWARP without knowing what the 23 marching orders are from the Intel Corporation? 24 So when he was a Systems 25 Administrator at IWARP, the only way he could do 32 1 that job was to know what the policies were of the 2 corporation so that he could help with their 3 individual computers, could follow that. He knew 4 what the policy was. 5 That's another thing that is not 6 correct, that he didn't know -- after 17 years with 7 various companies, he didn't know the policies of a 8 company that he works for? He knows. Once he 9 granted himself that special license because of 10 that special knowledge, he feels he can ignore them 11 because he's Randal Schwartz and he could do 12 whatever he wants, in spite of whatever Intel may 13 feel is security appropriate for them. 14 So Seth Bradley finds out about the 15 gate program in IWARP. He said no -- I asked him, 16 "You sat down Mr. Schwartz, didn't you, and made it 17 clear in no uncertain terms that this violated 18 Intel policy?" His answer, "Yes." Right then and 19 there Count 1 is established. 20 Is there any doubt that that 21 happened in your mind? Is there any doubt that his 22 supervisor sat him down and told him in no 23 uncertain terms that Intel policy does not permit 24 inbound connections? Okay. That's how we prove 25 Count 1 beyond a reasonable doubt. 33 1 The second time we prove Count 1 2 beyond a reasonable doubt happened in March of 3 1993, and that's when Dirk Brandewie, who 4 administers the Mink computer, found the process 5 running that he wasn't familiar on. He was the 6 Systems Administrator for that computer and he 7 found the door program. That was a two-way Telnet. 8 I'm not very good with these terms so if I'm wrong, 9 rely on your own recollection, but as I look it, it 10 was a two-way door on his Mink computer that was 11 one of the ones that allow Internet access to go 12 outside. 13 The ones with the tags on them, you 14 get to take back to the jury room, by the way. 15 This is what John Kent -- and you'll have the nice 16 glossy copies in there with you. 17 Anyway, this is what John Kent did. 18 It kind of demonstrates the two-way door. So what 19 Dirk found, the two-way door, and goes to 20 Mr. Schwartz and says, "Hey, we can't have the 21 incoming part. We can't have that. Intel policy 22 does not permit the incoming part of this program 23 that you put in. You need to put blocks on it." 24 He says, "Okay." He put blocks on 25 it. And the blocks meant you couldn't come in from 34 1 the outside through the fire wall into Intel and 2 consistent with their policy. He was told that and 3 how do we know he was told that? Because he did 4 it. He put the blocks there like he was told to 5 conform with Intel's policy. And he did it. 6 It wasn't good enough for him. He 7 just couldn't wait to get home to get his mail, so 8 it wasn't good enough for him. So he tried another 9 computer and that was too slow for him. Then he 10 went back to Mink and took off the blocks and was 11 caught in July of 1993. 12 And that's the third way we have 13 proven Count 1 beyond a reasonable doubt. He's 14 confronted again. And in case you think Dirk 15 Brandewie wasn't telling you the truth, we had Mark 16 Morrissey say, "Yeah, we both confronted him and 17 told him what the policy was and you can't have an 18 inbound connection." 19 Rightly or wrongly, Intel gets to 20 set that policy. It's an unacceptable security 21 risk for them. End of sentence. Period. And it 22 was told over and over and over to Mr. Schwartz and 23 he didn't want to do it. 24 If he didn't want to do it, he 25 should have quit. Don't take their money any more 35 1 and go somewhere else where you can do whatever you 2 wanted to do. But when he agrees to take their 3 money, he agrees to stay within the corporate 4 policy, and his actions are unauthorized if he goes 5 beyond that. And he was told over and over again, 6 but he just didn't want to do it. He wanted to do 7 it his own way with that special license and 8 privilege he granted himself. 9 So he -- again, in July of 1993, 10 Dirk Brandewie confronts Mr. Schwartz and says, 11 "The blocks are gone. I told you the blocks had to 12 be there." It is now a two-way gate again. Then 13 he says, "If you want this, get security clearance, 14 get something in writing where somebody will allow 15 you to do this." 16 Now, Mr. Schwartz knew that before 17 when Seth Bradley authorized him to change that so 18 that at IWARP -- so it would be outside the fire 19 wall to allow that access under very limited 20 circumstances with Carnegie Mellon, and that was 21 put outside of the fire wall. But Brillig wasn't 22 outside the fire wall and neither was Mink. 23 So he knew what the process was. 24 You could get a supervisor to okay this, but he 25 didn't want to. As he said, it was going to take 36 1 him too much time. But he was told right then and 2 there, "If you want to have this, get somebody from 3 security to write off on it and I'll let you do 4 it." He didn't do that. He said, "Just close my 5 account." 6 And then what did he do? He went 7 from Brillig or Mink, he took the same gate 8 program, knowing that it was unacceptable to 9 Intel's policy, and put it on the Brillig machine. 10 And if you're not convinced yet, 11 there is really not much more I can say to you, but 12 I'll just throw in for the thought processes, that 13 he did have an inkling of how Intel thought, what 14 Intel thought would be appropriate for access 15 through their fire wall, and that's called the 16 Defender System, a system that Mark Morrissey told 17 you told you he never used, but it was there and 18 that is the way Intel will allow inbound 19 connections through their system with their 20 security within their corporate policy which they 21 are entitled to set. 22 He had an account there. He could 23 have used it. He didn't use it. He wanted to do 24 it his own way with his own license that he granted 25 himself. It is without authorization, it is 37 1 knowingly, and it is a crime in this state. The 2 Legislature has said without authorization, if you 3 alter a computer, Mink and Brillig, you are guilty 4 of computer crime, and that is Count 1. It is 5 proven to you three separate ways beyond a 6 reasonable doubt. 7 Reasonable doubt. As intelligent 8 people, we can all come up with alternative 9 scenarios for anything. That's why when the 10 founding fathers came up with this standard, they 11 said when 12 reasonable people reach a reasonable 12 result based on the facts before them. And I'd 13 submit to you that count has been established 14 beyond a reasonable doubt. 15 Let's talk about the crack he says 16 in the password file, Counts 2 and 3, they are 17 interrelated. They stand alone in that they each 18 involve different aspects and they kind of help you 19 decide or look at -- I don't have this all filled 20 up, by the way, this is not going to take all that 21 long, but let's look at what he said in regard to 22 taking the supercomputer password file. 23 He said he did it for security 24 reasons. He said he did it for other reasons also, 25 those were his personal reasons. But, what do we 38 1 know about his explanation? We know at that period 2 of time the only place he's a Systems Administrator 3 at all is on the Domain Name Service, the DNS 4 service, with either Bob Wilcox or Clayton 5 Kirkwood. And we also know that the Domain Name 6 Service is a service that involves changing numbers 7 to words, as I understand it. That is the only 8 place that he administers a system. 9 He has been taken away the Systems 10 Administrators duties in Bob Wilcox's group except 11 for the Domain Name Server in July of 1993 by Mark 12 Morrissey. He no longer works for IWARP. He never 13 had any security obligations in SSD, according to 14 John Gray, and he was never a Systems Administrator 15 there, only with IWARP, but his contract is over 16 there. And I can say this now, I practiced it last 17 night, the test ***aTom TROPB program was over in 18 the spring of 1993, so that is over. 19 He has no legitimate reason to be on 20 the Brillig system. He's not there to work on a 21 contract. He is there for his own purposes, his 22 own purposes. 23 How do we know that? One, he cracks 24 their password file. Now, we know that he knew how 25 to set up an automatic program to notify any person 39 1 that had a faulty password that would automatically 2 send them a message saying, "Hey, boy, so, you're 3 using a stupid -- or a password that can be cracked 4 by my program. Fix it." Because he did that at 5 IWARP. He knew how to do it and he did it. 6 Did he do that in this case? If 7 this was done for security, as even his own expert 8 said, the Crack program has no security benefit at 9 all if you don't notify the person whose password 10 you've cracked that there is a problem. It has no 11 security benefit if you don't tell the person. 12 None at all. But he also said, if a person is 13 doing it for his own reasons, he would never notify 14 the person that the password is cracked because 15 then they'd fix it. 16 So he goes into Brillig, the account 17 should have been closed on Brillig, we know that, 18 it was an oversight, and he looks at the password 19 file. But he does more than that. He copies it 20 over to his machine. Exactly what Mr. Johnson- 21 Laird said a person that was wanting to do mischief 22 or use their own purposes would do, they'd get it 23 away from there. And then he ran the Crack program 24 against it, compromised passwords, notified no one. 25 Now, defense counsel in his opening 40 1 statement said this all started on October 21st, 2 but we know that's not true. We know, based on the 3 defendant's own laws, that this started -- well, we 4 don't know when it started, but we can show you 5 that it at least was going on September 24th. 6 These are the Crack logs. So we know on at least 7 September 24th, that this was started. 8 On State's 23, we see on September 9 24th at 14:31 the password file from Brillig was 10 entered into the defendant's directory into the 11 "play" CR and then the name of it, password 12 Brillig. 13 A few minutes later, 21 minutes 14 later, the Supercomputer Division password file is 15 entered onto the defendant -- and this is September 16 24th, is entered into the defendant's directory 17 over at Hawthorn Farms from Cornell Oaks. He's 18 admitted to you that he violated the position of 19 trust and uses someone else's password to steal 20 them from the SSD. 21 He was not a Systems Administrator 22 there. His accounts were disabled there. He knew 23 that. He said he -- he had to know that. He said 24 he knew he wasn't supposed to be using Ron B 25 password file. He was disabled there. He had no 41 1 business there. He was trespassing in an area that 2 he had no right to be in. He was doing it for his 3 own personal reasons. 4 If he was doing it for security, 5 then when he ran the Crack program, he would have 6 notified someone. 7 He said his other reason for doing 8 that was that -- if you look at what he told the 9 police, it was right here, "I needed the passwords 10 in case they caught me doing it and I needed 11 someplace to land the gate." Right here is why he 12 was doing it back in November 1st when everything 13 was fresh. 14 Now, he says he doesn't remember 15 anything that he told the police, or doesn't 16 remember that, but it's uncontroverted what these 17 policemen said. And Mr. Cower is not a policeman, 18 but he remembers. He was concerned about Intel and 19 their vulnerability because these passwords had 20 been taken and cracked. He was concerned about 21 that. That was his primary concern. 22 But the defendant knew he wasn't 23 supposed to be in that account. He knew it. 24 Because he's using someone else's password to get 25 there. But he says in his initial testimony that, 42 @ 1 "Hey, I was only doing it -- I wanted to show them 2 that this could be cracked and I wanted to show 3 them how quickly it could be." That's why he said 4 he was waiting until the end of this program or 5 moved it from Wyeth over to Snoopy. But that's not 6 true, and I'll tell you why. 7 On October 21st, he recopied the 8 password file from the Supercomputer Division. 9 Now, if all he was doing is time trials, why does 10 he need a new password file? You would keep the 11 old password file and do a time trial on it. It 12 would make no sense to get a new password file to 13 do your time trial, but it would make sense if you 14 waited about a month to get a new password file to 15 find out if anybody changed this. To find out if 16 people had been changing their passwords. 17 As the policy manuals will tell you, 18 people are to change their passwords at least every 19 three months. So if his private purpose for 20 getting that password file is to use it in case 21 this gate is discovered on Brillig to find -- to 22 find another computer, he has to update that 23 password file and keep on cracking it, which he was 24 doing, which he was caught on October 28th, keep on 25 cracking it to make sure that when those passwords 43 1 are changed, he can still access the system. 2 He's not doing this for time trials. 3 He's doing it for his own purpose and that he wants 4 to be able to put that gate where he wants to put 5 it, because he's granted himself this license to do 6 it because of his special knowledge. That's why he 7 was doing it. There is no reason in the world for 8 him to recopy this file if he's doing time trials. 9 How do we know it's recopied? It's 10 a different size. These numbers on September 24th, 11 54,303. Those are characters, those are like -- it 12 could be fifty-four hundred three and 13 three-eighths, but they are called bytes, so they 14 are just like -- anyway, and it's larger on October 15 21st. It's 56,147, two different files. 16 This isn't time trials. This is his 17 own purpose. He was copying this for his own 18 particular purpose. 19 I cannot show you that in the 21 20 minutes between when he copied the password file 21 for the Brillig machine that he ran Crack on it and 22 then copied the password file. He may have done 23 that earlier and was just updating the records. I 24 can't show you that. 25 So when it comes down to it, Count 44 1 1, which is establishing the gate program on Mink 2 and Brillig, has been proven beyond a reasonable 3 doubt three separate ways. And I'd ask you on 4 Counts 2 and 3 to use your common sense when you 5 look at what he did. 6 It's a common excuse to say, "I was 7 doing it for security." Do we believe that? Does 8 his behavior, what we can see, lead you to conclude 9 that he was doing it for security reasons in a 10 system he had no access to, he was disabled from? 11 He knew he had no business there. 12 He had to use someone else's 13 password to get there. He copies the file away 14 from there so he can run Crack against it and he 15 tells the police, "I'm doing it, I know it violates 16 Intel's policy, I know it violates the law." But 17 what does he tell Paul Lazenby? In quotes, "but I 18 knew I could do it anyway." That's the essence of 19 this case. 20 I will not dispute to you that 21 Randal Schwartz is a computer -- is facile with 22 computers and knows how to use that medium. But 23 when you take the king's gold ***to to the rings 24 gold you follow the king's rule or you don't work 25 for the king. It's simple as that. 45 1 He was told based on experience not 2 to do it. He knew, based on his experience, that 3 you don't use someone else's password. That's a 4 breach of trust. 5 All of our laws primarily, theft 6 laws, are based on a breach of trust. You trust 7 that the vehicle that you got here to the 8 courthouse in will not be broken into while you're 9 here and driven off. Now, there is no guarantee. 10 In a perfect world, I suppose that wouldn't happen. 11 That is part of our social agreement. 12 Now, computer crime is a new crime. 13 It's a new area. It's developing. But Randal 14 Schwartz has been in it 17 years. He has been in 15 it as a Systems Administrator and in security. He 16 knows right from wrong. He basically told you 17 that. And he violated law and violated Intel's 18 policy and he knew this was wrong. 19 He's asking you to ignore that and 20 I'm asking you to hold him accountable for what he 21 did and what has been proven here. You've taken an 22 oath to follow the law. 23 When we talked about the scales of 24 justice with the blindfolds, the scales of justice 25 don't say, "Well, geez, he's pretty smart in 46 1 computers, give him a break." They don't say, 2 "Geez, looks like a nice guy. Give him a break." 3 Goes over the eyes. Passion, prejudice, sympathy, 4 do not enter into the facts of what happened in 5 September and October of 1993. You have to 6 determine those facts and apply the law and justice 7 ***is going to let people accept responsibility for 8 what they have done. 9 I'm asking you to hold Mr. Schwartz 10 responsible for what he has done. Thank you. 11 THE COURT: Thank you. 12 Mr. Sussman. 13 MR. SUSSMAN: Your Honor, Randal, 14 counsel, members of the jury, may it please the 15 Court -- 16 THE COURT: Well, Mr. Sussman, we'll 17 take a short break here so we don't interrupt your 18 argument. Let's take a ten-minute recess here. 19 Okay, ten minutes. 20 (Recess taken.) 21 THE COURT: Mr. Sussman. 22 MR. SUSSMAN: Thank you, Your Honor. 23 Good morning. Almost about two 24 weeks ago when I first had the chance to talk with 25 you in opening statement, I recall, I think I 47 1 mentioned to you that the basic facts about what 2 Randal Schwartz did, his conduct, the specific 3 things that he did really weren't in dispute. The 4 specific things about running -- about setting up 5 certain programs, about running a Crack program, 6 like on the Brillig and SSD password files, those 7 weren't in dispute. But the meaning of those facts 8 is what -- why those things happened, what the 9 motivation was, what his purpose was. Those were 10 the key things in this case. 11 Now, in other words, if you recall, 12 it was his knowledge and intent, his purpose in 13 doing these things. It's not just -- the case was 14 about not just a question of what did Randal 15 Schwartz do, but why did he do it? Was it as 16 simple as the kind of black and white portrayal of 17 the reasons given to you by the State? Or was it 18 for other -- was there a more complex mixture of 19 reasons and factors that entered into the thinking 20 process that went through -- that he went through 21 that was behind the actions that have been 22 described to you? 23 Seems to me that what this case 24 comes down to, to a great extent, we have what we 25 have been arguing about and fighting about is 48 1 whether or not what Randal Schwartz did was a 2 firing offense, whether he did something, whether 3 acknowledging at some point, whether there were 4 things that he did in a way that Intel felt was 5 inappropriate, violated the way they wanted things 6 done, whether it was entirely appropriate and 7 justified to say, "We're not going to have you 8 doing this here. We're not going to have you work 9 anymore," and whether -- so whether there was a 10 firing offense or whether we're talking about 11 felony offenses, and that again comes back to what 12 was going on in here? What was the purpose? What 13 was this man trying to do and why? That's the key. 14 That's the key. 15 Now, Mr. Tintera went through the 16 charges with you and I think it's again critical to 17 repeat that so that we -- because when we go 18 through this, you have to recall that the State has 19 the obligation to prove to you each and every 20 element of those charges, each of those counts 21 beyond a reasonable doubt so that when we say -- 22 when the State charges in Count 1 that on 23 November -- between November 1st, 1992 and 1993, he 24 knowingly altered a computer and computer 25 network -- a computer, excuse me, or computer 49 1 network consisting of Mink and Brillig, and that he 2 did this knowing that he was without authorization, 3 they must prove to you beyond a reasonable doubt 4 that he knowingly altered it, that it was a 5 computer or computer network, and again the key in 6 this count is that when this occurred, he was -- he 7 knew that he was without authorization and 8 knowledge in the law, just like intent, has some 9 special definition that the Judge will instruct you 10 about. 11 It talks about an awareness of 12 certain conditions or facts to be in a certain way. 13 And so in judging and evaluating what is knowledge, 14 what Mr. Schwartz's knowledge was, the issue is not 15 going to be as Mr. Tintera suggested. 16 Did Intel have a policy which said 17 you can't do a certain thing? It is given the way 18 things happened at Intel, given the mixture of 19 signals and conflicting approaches to the policy 20 that either was followed or was not followed or was 21 sometimes as followed in the breach, on or during 22 the breach in the practice, what was the 23 understanding that Mr. Schwartz had about the 24 policy and how did he understand the discussions 25 that occurred with Seth Bradley, with Dirk 50 1 Brandewie and Mark Morrissey about the specific 2 issues involving the gate program in particular, 3 because that's where the knowledge goes to as far 4 as Count 1. And that's something that I want to 5 come back and dwell on a little more later on. 6 That's one of the keys there. 7 In the same -- similarly, in Counts 8 2 and 3, I'm going to lump these together because 9 essentially the elements are the same. The only 10 difference is that in Count 2 and 3 what the State 11 has to do, what they are alleging that's different 12 is that the access of the computers, the use of the 13 computers, Brillig, and of the SSD computers was 14 done for the purposes of committing and with the 15 intent to commit two separate thefts; the theft 16 that copying and running Crack on the password file 17 was, in fact, a theft. It was done for the intent 18 of stealing something, and also that there was an 19 intent in the other count to steal individual 20 passwords. That was the purpose. 21 As far as these counts go, intent, 22 "intent" with its special definition, meaning in 23 the law becomes the critical focal point in terms 24 of determining whether or not the State has proved 25 this charge beyond a reasonable doubt. 51 1 In Counts 2 and 3, as Mr. Schwartz 2 acknowledged to you when he was on the witness 3 stand, he's not saying he didn't use the machine, 4 he didn't have access to it or use Brillig, 5 although on Brillig, the evidence is clear that he 6 had an account at the time and that he had no 7 reason not to believe that he was -- that he was 8 authorized to use that. 9 But the key thing -- and he looked 10 at the password file there and then copied, but 11 that was the step to the key thing as far as going 12 to the SSD password file. And the intent there is 13 whether he had under the law a conscious objective, 14 essentially a deliberate purpose to engage in 15 certain conduct or to achieve a certain result. 16 And again, this is where the thought 17 processes that Randal Schwartz went through when 18 these events occurred become critical to the 19 determination of whether the State has proved this 20 beyond a reasonable doubt. Again, this is why in 21 evaluating these considerations, so much of the 22 other evidence that we have brought into the case 23 and presented to you which sometimes sort of may 24 seem like how does this all fit in, have their 25 place in this case. 52 1 We have given you -- through the 2 course of the last couple weeks, you've heard a lot 3 of evidence about Mr. Schwartz's background, his 4 history, how he's done in other jobs, the way he's 5 approached things, how he learned to approach the 6 kinds of jobs he's done. But not just 7 Mr. Schwartz. 8 What's this industry like? How do 9 people like Randal Schwartz, how do people who are 10 in the position of that Mr. Schwartz has occupied, 11 approach solving problems, approach getting the 12 work done? The critical, creative work, that is 13 what makes companies like Intel successful and that 14 was -- we presented that to you so that you will 15 understand the context and how things operated and 16 the thought processes that Mr. Schwartz was going 17 through. 18 We presented you with information, 19 some of which seemed very technical, about networks 20 and the Internet and security, particularly how 21 these -- this door and the gate programs were set 22 up in terms of the technical nature and what the 23 security features were. 24 The State would suggest to you that 25 was a red herring, but it had a very important 53 1 purpose here, again, because what we wanted you to 2 see and what we want to show was what were the 3 thought processes that Mr. Schwartz was going 4 through in doing these things? What was he 5 responding to in terms of the state of the 6 policies, the state of the local practices at 7 Intel? Exactly what was he told by Seth Bradley 8 and Mark Morrissey and Dirk Brandewie and how did 9 he respond to those things? Those are the things 10 that set the context for understanding these 11 things. 12 Now, in that regard, the factors 13 that we presented to you and the information that 14 you have about how do independent contractors 15 function at Intel and generally how is Intel 16 structured? What was the structure at SSD and 17 IWARP at the time? What was the -- what was this 18 kind of structure that was made up of many 19 different kinds of policies where there were 20 different approaches to practices and policies? 21 These things all set the context and set the place 22 to understand how and why Randal Schwartz was doing 23 the things that he did. 24 Similarly, the State relies very 25 heavily in proving and establishing its case on the 54 1 mental state, Mr. Schwartz's statements both to the 2 police and his comment upon his testimony to you. 3 The context for these things becomes important to 4 you, too, and we'll ask you to consider that, along 5 with the evidence about Mr. Schwartz's character 6 and how given that and the people who have known 7 him and the people who respect him and his work see 8 that in terms of seeing evaluating whether or not 9 this person is coming to you and is trying to 10 explain and present why did this happen and what 11 was I really trying to do, whether this is somebody 12 who is really trying to put something over on you 13 and Intel and everybody else, as the State would 14 suggest, or whether this was somebody who is being 15 really out front, I mean somebody who is being -- 16 the word is not coming to mind, but just being -- 17 is without guile, not trying to be sneaky or hide 18 anything from you. 19 Now, we talked a little bit about 20 reasonable doubt, and let me dwell on this for a 21 moment before I move on to talk with you about why 22 I believe so strongly, why we submit to you that 23 the facts in this case -- that when you look at the 24 evidence there and you evaluate these things will 25 show you that Randal Schwartz was not acting with 55 1 any kind of criminal purpose. That whatever he 2 did, however inappropriate you might have thought 3 his manner of doing it was, however you may have 4 thought he stepped over the line, that these were 5 things that may have been -- may have made Intel 6 justified in taking personnel action against him, 7 but doesn't make him a criminal because he didn't 8 do this with a criminal purpose, with a criminal 9 state of mind. 10 Beyond a reasonable doubt. It means 11 that when you decide whether or not Randal Schwartz 12 had the knowledge that what he was doing was not 13 authorized, that when Randal Schwartz was cracking 14 the passwords and looking on the password files 15 that he looked at, that whether he was doing it for 16 the innocent purposes that he suggested or that it 17 was for the more sinister purposes that the State 18 is saying now or for in truth it was really what 19 compelled the investigation in this case in the 20 first place, the fear that he had was getting into 21 the password, the files of the people in SSD whose 22 passwords had been cracked and that these are not 23 the sinister motives and purposes that really 24 existed. 25 Now, in evaluating that -- remember 56 1 and the instruction -- and we talked about, and I 2 believe the Judge will instruct you that you have 3 to be as certain about your decision in this case 4 as you would be in the most important affairs of 5 your everyday life. You have to give it a great 6 deal of consideration. And when the State asks you 7 to return to verdict of guilty, that you don't have 8 the -- what's the kind of reasonable doubt that 9 would prevent you from doing something that's real 10 important to you. 11 Perhaps one of the best examples I 12 can give you, although it's not quite the same as 13 judging somebody in a criminal case, but think 14 about one of those important decisions, and I think 15 for most of us, it may be buying a house or 16 something like that. Doesn't matter whether it's 17 the first house where you spend maybe 30,000 or 50- 18 or $60,000, or if it's something that you spend a 19 half million dollars for, if we should ever be so 20 lucky. 21 Put yourself in that position and 22 let's say you approached the sale of this house and 23 you're coming time for closing and this is a house 24 that you have found and you really like and this is 25 what you wanted and this is the place you want to 57 1 live. And you're getting ready to close the house 2 and the title company told you somebody just popped 3 up -- somebody said that he did some work on this 4 house and he has a lien on this place, a lien that 5 says it's an interest you have to pay me for doing 6 construction work on this place before we can clear 7 the title and you can have it. 8 Now, the title company may tell you, 9 "We don't know where this came from, we don't 10 ***know it's any good, the person who is selling 11 this place tells us that he thinks it doesn't meet 12 the requirements for a lien and it may not be a 13 valid one, but we can't guaranteed it so we will 14 not give you clear title on the place." 15 And they may tell you that, "We're 16 pretty certain that the way this thing was done 17 that this person that come in with this lien didn't 18 file it in a timely way, may not have filled the 19 papers out just right," but he's got a lien on the 20 house that maybe for worth $35,000 and you wanted 21 to buy the house for 65. 22 Now, before you decide to go ahead 23 with the purchase in that case, knowing that you 24 may not have clear title, how certain would you 25 want to be that this lien is no good? 58 1 In the everyday life, we see those 2 things happen, you want to be sure. You don't want 3 to get in the place and find somebody else coming 4 in that has more claim to the title than you do. 5 You want to be certain because the law requires 6 that you -- in judgment of somebody in a criminal 7 case and deciding that somebody is guilty of a 8 crime, you must be certain beyond a reasonable 9 doubt and at least as certain that you would be in 10 that kind of situation. 11 I would like to talk to you about 12 some of the highlights of the evidence in the case 13 about why we submit to you that the State has not 14 proved each of these elements to you beyond a 15 reasonable doubt. 16 Excuse me. You get nervous and I 17 have to say that it's -- you go through a case like 18 this and you spend two weeks trying this thing, and 19 we have tried to present as much evidence as we can 20 to show you what was happening and why Randal 21 Schwartz was not acting criminally. And we're at 22 this point where I have these sort of imagine of 23 myself missing something or not saying the right 24 thing or doing something that would somehow leave 25 out the critical points that would help persuade 59 1 you, that would show you the facts that show you 2 why there is reasonable doubt here. 3 Please bear with me if I kind of 4 ramble a little bit or say a couple things. This 5 is very important to us. 6 I talked with you about some ways -- 7 some evidence that we brought in to show you the 8 context. In Count 1, again the key point is was he 9 authorized? What did he know? Did he know he was 10 not authorized to do when Randal Schwartz put the 11 programs -- first the door programs and then the 12 gate programs that we're talking about here? 13 Now, the State made it sound very 14 simple and very clear that Randal Schwartz was told 15 over and over again that there is a clear, 16 well-defined, absolute inviolate policy that there 17 will be no inbound telnetting or inbound 18 communication from outside Intel to inside Intel, 19 and he was told that several times by several 20 different people and therefore he knew. 21 But if you go back and carefully 22 scrutinize the evidence and look a little more 23 closely on that, that doesn't hold up for these 24 reasons: 25 First of all, let's go back to the 60 1 earlier situation. When Randal Schwartz started 2 out in his earlier years working at Intel, he was 3 at the IWARP section there, which was sort of an 4 umbrella with SSD, was -- and hadn't yet been 5 brought in in those days. And you heard the 6 evidence that this was sort of like a startup 7 company. This was a group of very energetic, 8 creative, vital people working on some very 9 significant kinds of things. 10 And you had this link going on with 11 Carnegie Mellon, the university in Pittsburgh, 12 where it was essential for them to be able to 13 communicate with the people at Carnegie Mellon back 14 and forth, and also for the people who were working 15 there to get over to Carnegie Mellon sometimes to 16 be able to communicate back. 17 Now, we heard from one of the 18 witnesses that there was a policy in place for -- 19 maybe it was, perhaps, seen as a procedure or 20 guidelines that you weren't supposed to have an 21 inbound connection. But we also know that a 22 decision was made first not by Randal Schwartz, but 23 was approved, authorized by a manager, a regular 24 Intel manager to say, "We need to get this stuff 25 done. Set it up." 61 1 Randal set up the connection through 2 this Cisco routers we were talking about to allow 3 the people working off-site, the engineers working 4 out in Pittsburgh, wherever, to have an inbound 5 connection to IWARP. And you heard from Jim 6 Reinders, one of the engineers working there at the 7 time, how critical it was in order to be able to do 8 his job when he was over there to be able to 9 communicate back. 10 What did they allow him to do? 11 Well, what the procedure, what the program that 12 Randal set up was, was it allowed Jim Reinders and 13 people like him to get on a computer in Pittsburgh 14 and look at their machines just as though they were 15 sitting at their desk inside Intel and do the same 16 work that they could do if they were there. 17 Now, that was the inbound 18 communication that was set up, and at that time it 19 was set up in a way that it was allowing access to 20 the machines that were at Intel that had really 21 sensitive product information. 22 Now, Randal didn't do that 23 unilaterally, but there was a local practice that 24 was driven by the necessity to get the job done 25 that have led to a decision to make this -- to set 62 1 this thing up so it worked. 2 Now, Seth Bradley, who was then -- 3 comes along and says, "Look, we have a problem 4 here, because the way this is set up, it's not 5 secure enough. This is a problem. We do have a 6 policy that says we can't do this," but he did not 7 say that "You can't do this." His testimony was 8 not that this is absolutely forbidden. 9 What he did was, he said, "We can't 10 allow this because we have got -- we can't have the 11 connection coming into the machines that have 12 product information." And what he did after 13 saying -- well, yeah, said, "We can't do it. 14 Change that." He then ready authorized a different 15 setup that still allowed the inbound communication 16 to a different set of machines that didn't 17 immediately access the other computers that had the 18 vital product information. 19 This is very important to remember 20 in terms of later on what impression did this make 21 on Randal? What was the precedent that was set? 22 What did it show about how things would be done and 23 could be done? 24 We have some global policies that 25 are guidelines and we have had to change them to 63 1 meet the needs of getting our work done here. And 2 then policy came along and forced them to make some 3 modification and change that, but we did it in a 4 way that protected the vital product information 5 and that was the way that continued. 6 Rich Cower in rebuttal did testify 7 that prior to 1993, there were inbound connections 8 allowed. The problem wasn't so much that we don't 9 want the inbound connection, but one of the 10 concerns was how do you make these things secure? 11 Also acknowledged that the security problems exist 12 by the outbound connections just as well, but you 13 make a business judgment that you have to do this 14 in order to do business. 15 Now, later on, however, Randal 16 Schwartz is no longer at SSD, his contract there 17 has -- with the SSD IWARP division ended, but he 18 was continuing to work over with -- the contract 19 had started up with Bob Wilcox at the Hawthorn Farm 20 section. 21 Now, here is where our -- some of 22 the information about independent contractors 23 becomes important in two ways and how it becomes 24 important for understanding the thought processes. 25 First, as an independent contractor, 64 1 it meant that Randal Schwartz was not a full-time 2 employee, so what that meant was while he was doing 3 the Systems Administrator and Network Administrator 4 work for Bob Wilcox, and later the work that 5 involved the Domain Name Server business for not 6 just Wilcox but the fellow in California who was 7 running that program, that while he had these 8 contracts, he also had outside jobs to do. This 9 was essential for him to be an independent 10 contractor, one of the things that was essential. 11 So it meant doing some work where he was teaching 12 classes in California. It may have involved work 13 in Chicago, but it was work that took him off-site. 14 Now, he's still a contractor for 15 Intel. He's worked for them for years. This is a 16 person whose testimony did reflect, I think, a 17 commitment to this company in doing things and 18 doing it with a pride and commitment to doing his 19 job well. 20 Now, one of the things that Bob 21 Wilcox -- one of the documents that he signed in 22 his authorization forms in State's Exhibit 14 was a 23 sponsor statement here that there were going to be 24 times where Randal Schwartz had to have access to 25 Intel property at odd hours because -- the reason 65 1 is because there will be times when at off hours, 2 you have to respond to an emergency. Things come 3 up. 4 Remember, John Kent testified that 5 being a Systems Administrator, doing the work like 6 that isn't something that just made up our job. 7 You could have 20 things happening and only have 8 time to do 10. You could have -- when Randal 9 Schwartz went through all of those resources and 10 talked about the things that came up, read about 11 invoice after invoice, talked about fires, putting 12 out fire walls, the person who is doing that kind 13 of work is constantly responding to crises, crises 14 like when Lou Poehlitz changed the configuration 15 for e-mail over at SSD and people at IWARP suddenly 16 stopped getting their mail and went nuts. It was 17 like for days, "We can't get our e-mail, we can't 18 get our work done. Fix it." This is the kind of 19 stuff that he had to respond to. 20 So we see here it required some 21 access at odd hours when he was in town. What do 22 you do if you care about your job and you're 23 committed to what you're doing if you are teaching 24 a class in California? What do you do if you're 25 teaching a class someplace else? Do you let 66 1 somebody else handle it? You could. 2 That's not who Randal Schwartz is. 3 He wanted to be able to have access to his Intel 4 e-mail, not just his e-mail from his publisher out 5 in the Internet there, but when he was away so he 6 could get access to his Intel e-mail inside. Why? 7 As he told everybody, so he could do his job, so he 8 could respond to the messages and the crises that 9 came up. So he could be more efficient and more 10 effective at doing the work that he contracted to 11 do, which he felt committed to doing. 12 That ethic of you do what you need 13 to do to get your job done is something that he 14 learned from his first days at Tektronix with Lyle 15 Settle. It is an ethic that is not peculiar to 16 Randal Schwartz. You heard it from Jim Reinders, 17 who was talking about you do what you need to do to 18 get done. 19 John Kent even talked about that 20 when he was responding to the problems that they 21 felt were created within their investigation when 22 he started trying to track down the -- what the IP 23 address at O'Reilly was. Didn't know, just had an 24 IP address, didn't know, altered the computer, 25 thereby having it make the change, did that without 67 1 anybody asking, that wasn't an issue. It was a 2 crisis that he thought was there that he had to 3 respond to and it was something that he did. He 4 acknowledged that you do things to get the job done 5 when you have to respond to a problem. 6 That's the kind of ethic that -- and 7 the kind of drive that -- which so many -- so many 8 people believed and operated on the theory that 9 this is what we should be doing to make this -- the 10 jobs work, to make these companies we work for 11 successful. 12 So what happened? Randal Schwartz 13 is now working as a contractor with Bob Wilcox and 14 he's out doing his work as an independent 15 contractor and he needs to have access inside of 16 Intel as well. 17 Now, Intel did have this defender 18 call-back system. You could call the telephone on 19 the modem and call in and communicate that way and 20 that was authorized and it was set up and Randal 21 had an account on that and he never used it. And 22 why? That doesn't seem right? But remember there 23 was some discussion and there is a document -- one 24 of the documents here showing the notes for his -- 25 Exhibit 104, which is showing the notes for the ID 68 1 numbers for the defender system showed the 2 telephone numbers and the only access was from 3 these telephone numbers. 4 So if he was doing work in 5 California, he was doing work someplace else, he 6 couldn't use this system to get access to your mail 7 and stuff inside. So if you want to do it and you 8 want to get the job done, you find a different way 9 to do it to make it work. 10 What did he do? Fell back and -- 11 what did he do at IWARP? He set up the door 12 program. Why do we talk so much about the security 13 of the door program? The door program, the one you 14 start out, you have to have a password, first you 15 have to know the IP address, then the right port 16 number, then you get a blank screen and get 17 passwords and you have to guess all of that stuff. 18 The significance of that? Because 19 these were a series of safety security measures 20 that were built into the program the way it was 21 written. 22 Why is that important? Well, it's 23 because in looking back to what was done at IWARP, 24 you had the same kind of inbound connection. You 25 needed to make sure there were all kinds of 69 1 security precautions and they are to protect Intel 2 from the outside intruder. 3 This is the program that Dirk 4 Brandewie saw and Mark Morrissey saw and came to 5 talk about. They said -- there was mixed 6 testimony, and please, I'll ask you to rely on your 7 notes and your recollection of this, but on direct 8 examination, Dirk Brandewie said, "I told him this 9 is against policy, you can't do this." 10 On further questioning on 11 cross-examination, Dirk Brandewie said -- I can't 12 tell you the exact words. I can't tell you exactly 13 what was said, but he acknowledged that the 14 conversation he may have -- that he said that this 15 is not -- this could very well not be secure as 16 it's written, or the problem is it's not secure 17 enough. This is not acceptable as it is written, 18 as it's constructed, as the program is written. 19 Mark Morrissey, also on 20 cross-examination, acknowledged and indicated that 21 the program, he said -- I'm looking at my notes. 22 The quote I had was it was not acceptable as 23 constructed. 24 On direct examination by the State, 25 Mr. Morrissey was asked if Morrissey told Randal 70 1 Schwartz that what he was doing violated Intel 2 policy, and Mr. Morrissey's answer was it violated 3 Intel security procedures. Security procedures. 4 That was his exact response. 5 As I said, on cross, he said it 6 wasn't acceptable as constructed. Why isn't that 7 significant? ***Didn't, he had. He have. Why is 8 that significant? Well, it's significant in this 9 respect: 10 First of all, there was a message 11 sent that this gate program isn't secure enough 12 because it allows -- if somebody gets through, it 13 allows them access to any machines in Intel. 14 Now, as we went to great length to 15 show you, that was a very unlikely event. Like an 16 onion, there was layers upon layers of security 17 there. In the event you got through all the 18 layers, yet you got to a machine that you could, in 19 theory, if you got to another password, get you to 20 a machine anywhere inside of Intel with product 21 information. 22 So there was a message, this is 23 not -- the message that was also conveyed was, as 24 constructed, this is not secure enough because it 25 opens up the entire system if you get through the 71 1 security measures that are there. 2 We spent a lot of time talking about 3 the literal-mindedness of Mr. Schwartz, not only 4 Mr. Schwartz, but people who are programmers, 5 Systems Administrators, and we had to spend some 6 time talking about it and it was demonstrated to 7 you by the way a lot of the witnesses were 8 responding to questions. 9 I think of attorneys sometimes -- as 10 we think of attorneys sometimes as being splitting 11 hairs and just sort of being very precise, and 12 there were frequently times that we would ask 13 questions that our witnesses would kind of pick 14 apart because it wasn't precisely the way that they 15 would interpret the way computer systems are set 16 up, where if we said "program" and we were talking 17 about a computer, we would get corrected on these 18 things. 19 Well, the reason why that's 20 significant is the thought process that's here. 21 Because in response, when we have this response and 22 say this program is not secure enough, it's not 23 acceptable as it's constructed, then Randal 24 Schwartz looked at this and said, "Okay, what do I 25 need to do to construct this to make it acceptable? 72 1 What do I need to do to construct this to satisfy 2 the security concerns?" 3 Well, first they went to the gate, 4 to Door No. 2, and Door No. 2 did have the 5 limitation of saying no, you could not have 6 anything inbound. But it was after that that 7 remember, he started doing more of the contract 8 work that took him out of the company again. And 9 so looking back upon his experience and looking 10 back upon what happened in the experience at SSD at 11 IWARP, he said, "Well, what did we do there? How 12 do we respond to the problem?" 13 What Seth Bradley said was, the 14 policy is we can't do this. But then he went ahead 15 and authorized me to set it up in a way that 16 allowed it to come into some specific machines that 17 didn't have access to the important product 18 information. And so from that, some more 19 tinkering, some changes, a new program, 20 adjustments, not just taking the same program and 21 putting it someplace else, but a new program was 22 written that changed the configuration, that did 23 something different. 24 And out of that was borne what we 25 are -- and Andy Johnson-Laird said was Gate X, and 73 1 said now, if you can find your way into the system 2 through the layers of security and through the IP 3 address and so forth, you just get into a single -- 4 this single machine and it was a single machine 5 that Mr. Schwartz pointed out that contained no -- 6 what he saw as no product information. And so it 7 was an attempt to construct this in a way that was 8 consistent with the practice that he had engaged in 9 sometime previously when this problem came up at 10 IWARP. 11 Now, this is not a question of 12 should he have known? Is this reasonable? We're 13 looking at a different perspective here. We're 14 talking about a community which thinking not in 15 terms of how is criminal law set up? 16 If there is a general prohibition, 17 when we think about general prohibition, we think 18 about all the ways we could violate it and stay 19 within that and don't look for something that gets 20 you out of it. You look at "I have a problem 21 here," because this is the problem, looking at it 22 saying, "I have a problem, here is the limitations 23 that are set. Now, what allows me to do what we 24 need to do to get the work done, to solve the 25 problem that impedes getting the work done and 74 1 doing what we need to do this?" 2 It's that literal-mindedness that we 3 spent time talking about that is important for 4 understanding the mental state and the thought 5 processes that went behind this. 6 Now, when that Gate X program -- 7 that was not the one that Dirk Brandewie found 8 running later on. Randal Schwartz made an 9 additional adjustment, fine-tuning, like he would 10 fine-tune the other programs that we were talking 11 about, the tools of his trade. That was one that 12 was found and that one had combined two different 13 kinds of security features, again to adjust the 14 needs of getting work done, allowing him when he 15 was outside to do only those things that he could 16 do sitting at his own desk inside Intel. And he 17 built in the additional procedure of these things 18 that allowed him to monitor whoever logged in to 19 make sure it was secure. 20 These are the actions of somebody 21 who was trying to construct a program, trying to 22 construct a vehicle for performing what he saw his 23 responsibilities under his contract for doing 24 better at what he was there to do. And one of the 25 ways that it was important was being able to get in 75 1 touch with the outside, the mail on the Internet, 2 because Randal Schwartz had developed a practice of 3 following whatever on the Internet using his 4 address at O'Reilly to get in touch with other 5 people around the community who were expert or who 6 had ideas and shared things and they would do 7 favors for each other. And so if there was a 8 problem inside of Intel, he could get back out 9 there and say, "I have this problem, anybody have 10 some ideas?" And you exchange things. 11 It was this exchange of favors, this 12 exchange of information that not only made him more 13 effective and made him so good at what he did, but 14 it was also one of the things that comes into play 15 later in this case when we look at the processes 16 that led to the running of the crack programs on 17 Brillig and on the SSD password file. It was 18 that -- it was consistent with that kind of 19 behavior and that kind of habit. 20 So what the State said to you that 21 we proved that in three different ways he knew he 22 wasn't authorized to run this gate program, the 23 first way was because of what Seth Bradley told him 24 years ago at IWARP. We submit to you that there 25 was -- the evidence there about what actually 76 1 happened there contradicts that. It does not 2 establish that. 3 When Dirk Brandewie -- the second 4 time they say this was proven is when Dirk 5 Brandewie and Mark Morrissey came to him and said, 6 "You can't do it this way." We have the -- if not 7 contradictory, at least the statements that could 8 be taken different ways. And I recall that there 9 was one other thing that Dirk Brandewie said about 10 that that was very significant. 11 If you recall, Dirk Brandewie said 12 when he first came to Randal Schwartz and told him, 13 "You've got this program, this is not acceptable 14 the way it is," this is the door program that he 15 saw there, he said Randal Schwartz was surprised. 16 He didn't say, "Oops, I got caught." He said 17 Randal Schwartz was surprised by this. 18 Now, that is a very telling comment 19 because it would -- what it suggests was that this 20 was the response of somebody who believed that what 21 he was doing was an appropriate program. It belies 22 the comment and the testimony of Detective Lazenby 23 about Randal Schwartz's statements about this 24 program when he testified here that Randal Schwartz 25 said he was caught running the door program, 77 1 because it's just not -- it's not consistent both 2 with Randal Schwartz's recollection, not so much 3 the specifics of what he said, but this is not what 4 he would say. And it's contradicted by Dirk 5 Brandewie's own testimony about Randal Schwartz's 6 recollection at the time. 7 Perhaps to digress and talk about 8 those statements, because Randal Schwartz's 9 statements are the cornerstone of the theory of the 10 State's case. They want you to accept face value 11 as reported by the detectives who came in and 12 testified as the most accurate -- as accurate 13 descriptions of what was said, what was intended, 14 what was meant and what was -- and what Randal 15 Schwartz was really trying to communicate. 16 Consider, we talk about the context 17 of things. What was the context that those 18 statements were given? Compare that context with 19 to the testimony that you've heard, which you can 20 evaluate on your own. 21 Randal Schwartz gave statements to 22 the police when he was surprised by the knock on 23 his door on November 1st in the evening by several 24 detectives and a number of deputy sheriffs who came 25 to his house, "We have a search warrant, we're 78 1 coming in." 2 Now here is a person who has had no 3 experience with this before. Here is a person 4 who -- think about for a second, use common sense, 5 you can do that in evaluating this, you think about 6 how normal -- most average people respond to 7 getting stopped -- just by getting stopped by a 8 police officer for speeding or a moving violation 9 and what does on there, and then consider the 10 context that Randal Schwartz was in where all of a 11 sudden you have your house full of police telling 12 you that, "We have a search warrant here to seize 13 your -- that -- the warrant that allows us to seize 14 your computers, to seize your data, to seize this 15 information, and we're looking for evidence of a 16 crime." 17 And he's read his rights that -- 18 its' rights that -- where you see are read to 19 people who are supposed to be criminals. And then 20 the first conversation that he has with Detective 21 Lazenby is, "Oh, you're not in custody, but you can 22 be charged with misdemeanors or felonies in the 23 state and even a federal offense." Then the 24 conversation goes from there. 25 What Randal Schwartz told you is, "I 79 1 cannot tell you that I remember the details of each 2 of the conversations." So he didn't get up here 3 and try to tell you, "No, I didn't say this 4 specifically. I didn't say that specifically." 5 What he tried to communicate to you in his 6 testimony was there were some things that didn't 7 sound right, that don't seem like me, that don't 8 fit. I didn't say the word 'caught.' That's not 9 something that I would use, 'caught.'" 10 Didn't fight with what was going on. 11 He was trying to communicate his reasons for 12 wanting to have access to the SSD computers. He 13 was trying to explain, "I really wanted to have an 14 ability to continue getting access to the Internet 15 so that I could read my Intel e-mail." And that 16 came up in the context after the first thing he 17 told the police, which was, "Well, I was -- my main 18 motivation was trying to test the security here." 19 But in evaluating these statements, 20 also consider this. The Judge is going to instruct 21 you to view these statements with caution for some 22 of the reasons outlined by the State. The reason 23 you have to think about the context, did he express 24 what he intended or the emotions or circumstances 25 such that he might not have expressed what he 80 1 intended or said things in a way that came out 2 incorrectly. 3 You've seen just in the stress of 4 the trial here witnesses misspeaking, witnesses 5 saying, "Well, if I testify this way a different 6 time, maybe I didn't express myself correctly." 7 Detective Lazenby said -- he testified here that he 8 took no notes of his conversations with -- I'm 9 sorry, that he took notes of his conversation with 10 Randal Schwartz, that's why he could write the 11 quotes down, although "caught" was not in quotes in 12 his report. But a month earlier, he testified that 13 he took no notes. 14 Now, was he mistaken? Was he 15 confused? Had he misinterpreted the question? 16 Perhaps. That's the kind of thing that can happen. 17 What is so illustrative of that kind 18 of situation with Mr. Schwartz's statement is the 19 last statement that Detective Lilley talked about. 20 Detective Lilley was certain Randal told him that 21 he had been suspended at Tektronix for a security 22 incident where he was using his skills to get 23 into -- to kind of -- as I would -- as they would 24 put it, break into some computers or break into 25 passwords or something. I'm blanking on the 81 1 details. The question of that was he was certain 2 that Randal Schwartz said he was suspended. 3 Now, the curious things about it is 4 this, we know not just from Randal Schwartz's 5 testimony but from Lyle Settle, who was the person 6 he was working for, he was not suspended. That 7 didn't happen. Now, the incident happened, but he 8 was not suspended. 9 What does that tell us then about 10 these statements? Either Randal Schwartz did not 11 tell Detective Lilley that, Detective Lilley may 12 have misinterpreted what was said or misunderstood 13 it, but Detective Lilley was certain that he had 14 said it. But maybe Randal Schwartz said something 15 like, "Maybe I was suspended," and if he did, he 16 was telling him something that didn't happen. That 17 demonstrably didn't happen. Why would he do that? 18 Didn't make sense to say it didn't happen? 19 It's the kind of thing that happens 20 under the stress of a moment like that where you 21 speculate about what -- well, maybe -- "Well, the 22 officer has told me I can be prosecuted for this. 23 May very well be this is a technical violation of 24 the law." 25 Please consider when you -- the 82 1 context of how this happened and how that can 2 affect the statements and a person's ability to 3 communicate under those circumstances. 4 I ask you to again consider what you 5 have seen in terms of Randal Schwartz's testimony. 6 The State has made a point of trying to suggest to 7 you that you really shouldn't rely on that because 8 he sat up here on the witness stand and then talked 9 with you on direct examination, but on 10 cross-examination, all he did was mostly -- 11 confronted with leading questions, he talked mainly 12 to Mr. Tintera. 13 Now, I'll trust your observations, 14 but I think most of the witnesses tended to respond 15 in the same way. Some of the State's witnesses 16 were notable, also. 17 Dirk Brandewie, who wasn't 18 necessarily the most articulate guy, but expressed 19 himself well. Made sure he turned to talk with you 20 on direct examination. He didn't do that on 21 cross-examination. 22 John Kent, the guy's presentation 23 that was worked out and on direct examination made 24 sure he turned and talked to you. Wasn't quite 25 doing that on cross-examination. 83 1 This -- does it mean that these 2 folks are lying? Means there is a difference in 3 the way people respond under these circumstances 4 and under the stress of when you are feeling like 5 you're being interrogated by somebody who is not 6 there to ask you what happened, but who is there to 7 make you feel like maybe this person is trying to 8 trick me into saying something I don't want to say 9 or is not accurate. 10 My final thought for you on the 11 issue of the door and gate programs is that the 12 reason we spent the time that we did and went 13 through the steps with Mr. Schwartz, with Andy 14 Johnson-Laird, was to show you that the way 15 things -- also to show you the way things are 16 portrayed by some of the Intel witnesses when they 17 said categorically in the broad statements, "These 18 things not only violate policy, but it just did it 19 in a way that left us wide open and vulnerable," 20 was not accurate. 21 That there were layers of security 22 and steps taken to protect that and nobody that 23 contradicted, for instance, Mr. Johnson-Laird's 24 testimony. That when you look at that, at the 25 first program that Randal Schwartz constructed, 84 1 that if you got through it all could open up the 2 access to everything. That it concerted -- that 3 running a test program, a concerted effort by a 4 computer robot-like program on a system that was 5 secured at Reed College doing that kind of 6 challenging took such a long time that it had no 7 practical value, it would have had no practical 8 value against the program that was set up. That it 9 was actually far more secure than the Intel 10 witnesses would suggest to you. 11 Why is that important? Because it 12 shows that we're not just talking about how did 13 Randal Schwartz think or what did he think was 14 going on, but is something that was a critical 15 issue in evaluating not only Count 1 -- 16 MR. TINTERA: I object to counsel 17 interjecting -- sorry to interrupt -- but his own 18 personal opinions into the argument. 19 THE COURT: Sustained. 20 MR. SUSSMAN: I'm sorry. 21 Unfortunate choice of words. 22 But it is a significant factor that 23 the evidence produced that would indicate to you 24 what is happening in this case beyond just what 25 Randal Schwartz thought when he was doing this 85 1 thing. Sort of what was really driving this case 2 along. 3 Think back to how this whole 4 incident blew up. What occurred there? Mark 5 Morrissey checking about the file for his system, 6 decides to look at the computer Snoopy to see 7 what's happening, to see how it's working, to see 8 if it's functioning well, and also to see if Randal 9 Schwartz is running any programs on it because he 10 knows that Randal Schwartz likes to test the newest 11 equipment and likes to use something that requires 12 a lot of power, and he finds this Crack program 13 going on. Then sees that it's running very clearly 14 against the password file from SSD, finds that a 15 number of passwords have been broken. 16 They find, upon looking at it 17 further, that these passwords included the 18 passwords of Ed Masi, who came in and testified, 19 and this other fellow, Justin Rattner, who was 20 almost as high up, the guy who is the chief 21 engineer and architect o