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 5 9 10 11 TRANSCRIPT OF PROCEEDINGS 12 13 BE IT REMEMBERED THAT on the 12th 14 day of July 1995, the above-entitled matter came on 15 for Hearing before the HONORABLE ALAN C. BONEBRAKE, 16 a Circuit Court Judge. 17 18 APPEARANCES 19 Thomas J. Tintera Washington County Deputy District Attorney 20 Representing the State of Oregon 21 Mark Sussman Attorney at Law 22 Representing the Defendant 23 24 25 2 1 GENERAL INDEX 2 3 Page No. 4 5 Preliminary Instructions. . . . . . . . . . . . .37 6 State's Opening Statement . . . . . . . . . . . .41 7 Defendant's Opening Statement . . . . . . . . . .53 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 MORNING SESSION 2 BEGINNING AT 10:45 A.M. 3 JULY 12, 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: I reread the statute 10 again on eligibility for jury service and the 11 question of Mr. Anderson has come up again and I've 12 been considering that since yesterday. Either 13 counsel have anything to add before I rule on his 14 ability or eligibility to serve as a juror? 15 MR. SUSSMAN: No, Your Honor. I 16 couldn't find anything that gave any guidance. 17 THE COURT: Mr. Tintera? 18 MR. TINTERA: No. 19 THE COURT: The statute does say 20 that you may not serve as a juror within 24 months 21 of being discharged from jury service. Doesn't 22 specifically say nor does it imply that you 23 actually must have served on a trial previously. 24 Says, "discharged from service," and I'm trying to 25 give some meaning to that. 4 1 It would seem logical that there 2 might be two things involved there and one would be 3 that we are reluctant to have a system where jurors 4 become professional jurors, so to speak, where they 5 serve time after time, and even if called at 6 random, we want fresh people to serve as jurors and 7 that's probably one consideration. 8 More likely, though, the fact that 9 it's a big imposition on people and so they just 10 built in this prohibition that gives everybody the 11 opportunity -- not the opportunity, it's mandated, 12 that just opted out if they previously have served 13 within that time period. 14 I know that the trial that he was 15 here on, we checked the records and that was the 16 trial that Judge Lund was trying last summer and 17 certainly is within the two-year period. He wasn't 18 a juror, but he was on that panel and spent a lot 19 of time awaiting a decision about who the jurors 20 would actually be on that case. 21 My belief is Mr. Robin Anderson is 22 not eligible and I will advise him of that fact and 23 have him step down as soon as we reconvene. And 24 we'll take the next juror, which is 13, Christopher 25 Sanford, and he will then become juror No. 5 on the 5 1 panel. 2 Yesterday there was also the issue 3 or question raised by Mr. Sussman about people who 4 might be employed by Intel and I think we have one. 5 MR. SUSSMAN: That's juror No. 13, 6 the one who will be next up. 7 THE COURT: As a matter of fact, the 8 statute -- the challenges for cause, and that's in 9 ORCP 57(D), "And a juror may be challenged for 10 cause when they have the relationship of master 11 servant with the adverse party." 12 Intel technically isn't a party in 13 this proceeding, so an employee of Intel wouldn't 14 have a relationship of being a servant of a party. 15 I can understand the argument that "It's close, 16 Judge," but as a matter of fact, Intel isn't a 17 party in this proceeding, so that's not a ground 18 for challenge for cause. And so you certainly have 19 the ability to raise that on the record, but I'll 20 deny that unless you can convince me that Intel is 21 a party in this proceeding. I don't think they 22 are. 23 MR. SUSSMAN: I had thought that it 24 referred not only to a party but to the victim in a 25 criminal case. 6 1 THE COURT: I haven't read that 2 whole statute. If you want to take a chance to 3 read that, you could point that out to me. If you 4 see something in there that leads you to that 5 conclusion, I'll sure reconsider that. But if it's 6 just the relationship to a party, that wouldn't do 7 it for a challenge for cause. 8 There was, also this morning, a 9 question about Tara Stall and her concern about her 10 employment and the fact if she was here more than 11 two weeks, she would start to have concern about 12 this new job she was going to be trained for. And 13 while I understand that's frequently a problem of 14 jurors, employment-related matters, that's not a 15 ground for discharging the juror. And I covered 16 that with them to some extent yesterday when they 17 first came in about the two weeks and what if it 18 even went longer than that. 19 At that time, she didn't bring it to 20 my attention, nor did she ask today. She wanted us 21 to know that could be a problem. Neither has she 22 asked to be excused, nor am I convinced that that 23 problem she has rises to the level that I would 24 just excuse her, and so she will remain on the 25 panel. 7 1 MR. TINTERA: There is two things. 2 I don't know, I've provided with the Court -- and 3 if it has been decided, I'm sure you will tell me. 4 I've provided the Court the Victim's Right 5 Initiative where "victim" was defined and I don't 6 know that we ever revisited that in regard to 7 Mr. Cower's presence, both to assist me in 8 understanding some of the testimony, but also 9 whether he would be permitted as representative of 10 the victim to remain in the courtroom. 11 THE COURT: Well, we haven't 12 resolved that. I did read that. You had a couple 13 matters to resolve. One is the videotape and one 14 is this. Thank you for reminding me. We'll take 15 that up -- I want to consider both of these issues 16 a little more. We'll take that up later. 17 MR. TINTERA: I do have one other 18 matter. I didn't want to bring this up in front of 19 the whole jury for reasons that will be clear, but 20 Mr. Edmison is the roommate of a person that I'm 21 prosecuting that was a former county employee. 22 Now, I happen to know he was called 23 as an adverse witness at grand jury to establish 24 what this employee -- former Washington County 25 employee, been fired now, had been doing in regard 8 1 to operation of a county vehicle where he hit a 2 person on a bike and left the scene. His opinion 3 is that that individual is innocent of those 4 particular charges. 5 I don't think he should be sitting 6 on this particular jury because of the fact that 7 I've had to call him as an adverse witness at grand 8 jury into what that roommate was doing that 9 particular night, and he still resides with the 10 criminal defendant who I am prosecuting and is set 11 for trial in September. 12 I know the Court may be of the 13 opinion that I should use one of my peremptories 14 for that, but there is seldom a situation where you 15 have someone you have called as an adverse witness 16 in front of the grand jury, force them to testify 17 against their roommate, and where he holds the 18 opinion that the prosecution is not correct against 19 that individual. I would ask the Court to remove 20 that juror for cause. 21 THE COURT: For actual bias? 22 MR. TINTERA: Yes. 23 THE COURT: Mr. Sussman, you wish to 24 be heard on that? 25 MR. SUSSMAN: Yes, briefly. I 9 1 believe Mr. Edmison also indicated that the 2 relationship as roommate was about to terminate, 3 that that relationship was going to discontinue and 4 would not be ongoing, and he -- during the voir 5 dire, he indicated that he could judge this case 6 independently on its own facts, on its own merits, 7 and set that aside. 8 I don't believe the State has shown 9 actual bias with respect to this juror that would 10 justify removing him for cause. 11 MR. TINTERA: Well, if we want to 12 talk to him out of the presence of the jury -- 13 obviously I don't think it's prudent for me to ask 14 him in front of the rest of the jurors, "What do 15 you think about that prosecution?" I know what the 16 answer is. If the Court wants to be certain about 17 that -- 18 THE COURT: I'll take your word for 19 it. It's a big step from that to inferring -- 20 there is nothing he explicitly said here he has any 21 actual bias. I'd have to infer that he lied here 22 today and he can't put that out of his mind and he 23 is biased against the State and he's a sleeper 24 waiting to get even with you. I'm not convinced of 25 that, having listened to him. 10 1 MR. TINTERA: That's not what I'm 2 saying. He knows that I'm the prosecutor of a case 3 where he feels the person is innocent. That 4 carries over to this particular case and he may 5 view this prosecution in the same light. 6 THE COURT: He may. 7 MR. TINTERA: It's -- We're not 8 starting on a level playing field. 9 THE COURT: I agree. You used the 10 word "may." You're absolutely right, he may. That 11 isn't an actual showing that he will. He "may," I 12 don't think that gives rise to the showing of 13 actual bias. There is always the risk. 14 It's close but not quite there, 15 Mr. Tintera. Thank you. It's good argument. 16 We have three minutes left. Use 17 them wisely. I hope there is no line at the men's 18 room. 19 MR. TINTERA: Is that three judicial 20 minutes? 21 THE COURT: Three judicial minutes, 22 which means ten after. 23 MR. SUSSMAN: I want to make clear 24 how we're starting now. Are we starting now 25 with -- 11 1 THE COURT: I'll replace 2 Mr. Anderson and then you'll have a chance to 3 question the next and then we will start with the 4 peremptory challenges. 5 I do have some other jurors 6 downstairs on hold. I can either bring them up and 7 have them sit in the back and gain some insight 8 into the case by observing and hoping we don't need 9 them. But if we need them, they would need some 10 insight on the case. Or I can have them stay 11 downstairs and then if we need them, bring them up 12 after we run out of jurors in the back. 13 MR. TINTERA: Bring them up. 14 MR. SUSSMAN: That makes sense. 15 THE COURT: I think it probably 16 does. 17 MR. SUSSMAN: At least there will 18 be -- maybe the osmosis factor will help. 19 THE COURT: Might help if they gain 20 some actual insight. 21 I asked the coordinator to exclude 22 anybody who has been excused this week or next 23 week, bring those people up as well. If we run out 24 of jurors, then we'll assign numbers to the next 25 12. (Jury selection continued.) 12 1 THE COURT: We'll take our noon 2 recess at this time. We'll reconvene at 1:30. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 1 AFTERNOON SESSION 2 BEGINNING AT 1:45 P.M. 3 JULY 12, 1995 4 5 THE COURT: We are back on the 6 record and continuing with the jury selection 7 process. 8 (Jury selection continuted.) 9 THE COURT: All right, counsel 10 indicate that they're satisfied with the jury 11 panel. The jury will stand and raise your right 12 hand and take an oath. 13 (Jury sworn.) 14 (Whereupon, the following 15 proceedings were held in 16 open court, out of the 17 presence of the jury at 18 3:00 p.m.:) 19 THE COURT: Let's recess and counsel 20 come back before the jury comes in and we'll talk 21 about the videotape and allowing one of the 22 representatives from Intel to sit in on the trial. 23 We'll take a break here and then we'll be back and 24 continue on. Thank you. 25 (Recess) 14 1 THE COURT: We have two issues that 2 we need to discuss and try to resolve. One of them 3 has to do with the videotape that has been prepared 4 by the defense by one of their witnesses, an 5 expert, I believe, on some operation, computer 6 technology or operation or systems. As I 7 understand it, that was -- I don't think, 8 Mr. Sussman, last I heard, it wasn't even in final 9 form yet. 10 You've had delivered to the Court 11 and Mr. Tintera a copy of the transcript, the 12 version that was in existence July 9. I think you 13 indicated that there might be some final editing, 14 so to speak, but that's pretty much the script that 15 would be followed in the videotape. 16 MR. SUSSMAN: Yes, Your Honor. 17 THE COURT: Second has to do with 18 the State's request to have the gentleman from 19 Intel sit in. I forgot his name. 20 MR. TINTERA: Rich Cower. 21 THE COURT: There had been a defense 22 motion to exclude witnesses. Mr. Cower, I believe, 23 is a witness for the State in this case, is he not? 24 MR. TINTERA: Yes, he is. 25 THE COURT: Let's talk about that 15 1 issue first. 2 Mr. Sussman, do you have an 3 objection to Mr. Cower being permitted to sit in 4 during portions of the trial when witnesses will be 5 testifying in order to confer with Mr. Tintera 6 about the case? I'm not suggesting whether you 7 should or shouldn't, I just want to know what your 8 position is. 9 MR. SUSSMAN: Your Honor, my 10 position is -- I'll reiterate the position that I 11 made earlier. I think that I would not object on 12 specific witnesses such as the defense expert. The 13 State has informed me that Mr. Cower is the expert 14 that they intend to rely on and that's permissible 15 under the law. 16 I have expressed my concerns and 17 reservations to have Mr. Cower sitting in 18 throughout the trial because he is a witness and I 19 would be emphatically -- strongest of my objection 20 is to have him sitting in on -- during witness 21 testimony prior to the time that he testifies in 22 particular. 23 THE COURT: Mr. Tintera, on that 24 issue. 25 MR. TINTERA: Well, on that issue, 16 1 Judge, I thought you had already ruled that he was 2 permitted to not only listen to defense counsel's 3 opening statement but also assist me as I deemed 4 necessary in understanding witnesses' testimony 5 both for the defense and potentially for 6 cross-examination. 7 The only reason I revisited the 8 point was, I think he also qualified -- under the, 9 what I refer to as the Victim's Right Initiative 10 that was passed by the voters -- as a victim in 11 this case, and as such would -- beyond his special 12 capabilities to assist me, would be entitled to sit 13 through all portions of this trial. I thought that 14 was the only issue which we were going to talk 15 about. 16 THE COURT: I apologize if I misled 17 you, but I did make a preliminary off-the-cuff sort 18 of ruling without having read the statutes and that 19 was my feeling at that time. And, nevertheless, I 20 have had an opportunity to read the statute and the 21 provision of the ballot measure, the so-called 22 Victims' Rights ballot measure that modified that a 23 bit, and I want to revisit the issue because now I 24 know what the law is. 25 It appears -- at least the law as 17 1 written, it appears that under ORS 40.385, after a 2 motion to exclude witnesses and the Court granting 3 such an order, the Court nevertheless has the 4 authority to permit some people to sit in, even 5 though they are witnesses, as the Court may deem 6 appropriate. It's discretionary and the one that 7 applies there, because, frankly, the first three 8 subsections deal with what ordinarily I think would 9 be a civil case. Three does address a person whose 10 presence is shown by the parties to be essential to 11 the presentation of the parties' cause. Four has 12 to do with the victim of the case. 13 I think, Mr. Tintera, three is what 14 you rely on for -- at least initially, the 15 proposition that Mr. Cower ought to be able to sit 16 in because you believe he's essential to the 17 presentation of your cause. Correct me if I am 18 wrong on that. 19 Next, though, I have -- looking at 20 the ballot measure Subsection 17 where a victim has 21 been defined and that, I believe, has been made a 22 part of the statute now. "Victim means the person 23 or persons who have suffered financial, social, 24 psychological or physical harm as a result of a 25 crime and includes, in the case of a homicide, a 18 1 member of the immediate family of the decedent, and 2 in the case of a minor victim, legal guardian of 3 the minor." And then the rest of it has to do with 4 the fact that the defendant can't be a victim. 5 The part that I had recited earlier 6 was my belief that a corporation could designate a 7 party, and that language is in Subsection 2 of ORS 8 40.385. Says, "The officer of a party which is not 9 a natural person designated as a representative by 10 its attorney." That's what I was thinking of, but 11 again we come up with the word "party" and 12 obviously Intel isn't a party to this lawsuit, as 13 you've pointed out. 14 MR. TINTERA: That's correct. 15 THE COURT: So that doesn't work. 16 So aren't we talking about your belief that it's 17 essential that he be permitted to sit in here and 18 that he may be designated as the victim? 19 MR. TINTERA: Yes. 20 THE COURT: Those two points. 21 MR. TINTERA: Yes, both points. 22 THE COURT: Is it not possible that 23 someone else would both have the knowledge of the 24 facts of the case and the computer skills and 25 knowledge to assist you without necessarily being a 19 1 witness? Isn't there someone else? For instance, 2 I know that Mr. Woodard is here. He isn't listed 3 as -- Mr. Woodard knows about the facts. He's been 4 involved all the way with counsel, hasn't he? 5 MR. TINTERA: I just spoke to 6 Mr. Cower and he indicated to me that there is no 7 one with his computer knowledge that's as familiar 8 with the facts as he is and is able to assist. 9 That's my opinion also. I did want to check with 10 him. 11 So as far as I can tell, there is no 12 person with his knowledge that is also aware of the 13 facts that would able to be -- able to assist me. 14 THE COURT: So your belief is two 15 people, one knowing the facts and the other a 16 skilled computer person, couldn't together advise 17 you. You need one person to serve that function; 18 is that it? 19 MR. TINTERA: I think especially in 20 regard to if they are going to be of any assistance 21 to me at all, they do need to know the facts and 22 they do need to be a skilled computer person 23 because the parts that I anticipate problems with 24 are when we get into some of the esoteric knowledge 25 of some of these witnesses through 20 1 cross-examination, or the defendant, should he 2 choose to put forward a defense in their case. 3 I have every reason to believe, 4 based upon the witness list, that they will be 5 calling witnesses. 6 THE COURT: So you're saying it's 7 most important that he sit in during the defense 8 case more so than -- 9 MR. TINTERA: In my mind, to assist 10 me, it is most important that he sit in during 11 cross-examination of some of the State witnesses -- 12 I can't exactly tell you which ones because I don't 13 know exactly what the questions are -- and the 14 defense case. 15 THE COURT: When in the order of 16 calling witnesses do you intend to call him as a 17 witness? 18 MR. TINTERA: My order has been 19 fractured a little bit by the length of jury 20 selection, but it's looking like perhaps Friday. 21 THE COURT: So you would call a 22 number of witnesses before you would call him? 23 MR. TINTERA: Yes, I would. 24 THE COURT: Has anybody shepardized 25 this statute to see if there is case law? Seems to 21 1 me there is a case that came down, I'm terrible on 2 remembering names, but in the last couple years 3 where the Court was overruled for permitting a 4 person to sit in. Said it was unreasonably 5 stretching that circumstance. I can look it up, 6 but -- 7 MR. SUSSMAN: I don't have that. I 8 would certainly welcome the opportunity to 9 provide -- to research that and read something 10 overnight. 11 THE COURT: Looks to me like it's 12 unlikely that we will get far into testimony today. 13 It's 3:30. By the time I give my instructions, you 14 give your statements, it will be 4:30. So maybe I 15 could have an opportunity to do that before I have 16 to make that decision. 17 MR. TINTERA: Well, part of the 18 Court's initial rule was that he could sit in 19 during counsel's opening remarks because that would 20 further assist me. 21 THE COURT: I don't have a problem 22 with that, but once the witnesses begin testifying, 23 I want to make a final ruling before that. 24 With regard to the tape. 25 MR. TINTERA: Have you ruled whether 22 1 he's a victim or not? 2 THE COURT: I don't think he's a 3 victim. In my mind, a case might be made he's 4 essential to the presentation of evidence. And I 5 say that if it isn't clear yet, it will be clear on 6 the record before long that this is a case that -- 7 when I say "complex," I don't know that the 8 so-called operative facts are all that complex, but 9 insofar as it involves computer terminology and 10 procedures and those sorts of things that many of 11 us are unfamiliar with, and I'm assuming based on 12 what you have said, Mr. Tintera, that your 13 abilities as a user are there, but you don't have a 14 lot of schooling and special training in computers. 15 MR. TINTERA: I have none, Your 16 Honor. 17 THE COURT: And so your belief is, 18 correct me if I am wrong, that because of what this 19 case is going to involve, it would be extremely 20 beneficial if not essential to you to have that 21 sort of person available, somebody that knows -- 22 that both knows the facts of the case and can 23 relate those facts to computer procedures and 24 terminology and all that sort of thing. And I 25 think what you told me is, to your knowledge, 23 1 Mr. Cower is the only one available to do that. 2 MR. TINTERA: That's correct. 3 THE COURT: So I think a case might 4 be made that he's essential, but I want to look at 5 the statute. So that's my ruling on that. 6 With regard to the tape, seems to me 7 that was a tape recording that has been prepared 8 late. It's not as though Mr. Sussman had it and 9 hid it. And as I see in some criminal cases, I'm 10 not burdening Mr. Sussman with that. It just got 11 prepared or is being prepared now, and so there is 12 really a violation of the discovery statute. 13 That should have been prepared 14 sometime ago so that Mr. Tintera could have viewed 15 it, read the script, decided -- anticipated what 16 might need to be in rebuttal, so to speak, to be 17 done, a tape themselves to be done or an expert 18 called, that sort of thing. And so the discovery 19 statutes contemplate that that sort of thing gets 20 done and disclosed early on and it hasn't been. So 21 that's the problem. 22 Having said that, I think 23 technically that is a violation of the discovery 24 statute. Now we get to the issue of number two, 25 what I call the "so what" question. 24 1 Explain to me, Mr. Tintera, the 2 sanction of exclusion of an exhibit or evidence. 3 You don't jump to that, as we all know, and you 4 look at intermediate things that might be done. 5 For instance, as has been pointed out here, 6 probably going to be at least next week before we 7 get to the defense anyway, and so is there not a 8 possibility that in reviewing it, you could be 9 prepared to present, your own side, an additional 10 tape recording if you want to? I would consider 11 that possibility. 12 MR. TINTERA: Well, Judge, look at 13 the sequence that we have gone through in the last 14 couple days about the defense even presenting this 15 case in a finished form to the Court. Now, they've 16 indicated that it takes an hour to prepare one 17 minute of the tape. The evidence is of a different 18 quality and nature than witness testimony. It is 19 an attempt by the defense to place their expert 20 witness' testimony in a memorialized fashion and 21 have it go back to the jury so they can see it 22 during deliberations. 23 I do not have the time in the middle 24 of this trial -- which is very complex to me and 25 takes a lot of my time just to get my witnesses in 25 1 the right order and being able to communicate on a 2 level that this lay jury can understand -- to go 3 out and meet some sort of evidence, create some 4 sort of evidence that can meet this. And in my 5 opinion, it would have to be, I suppose, another 6 videotape of presentation of point and 7 counterpoint. 8 There is insufficient time, as far 9 as I'm concerned, during this trial for me to 10 orchestrate that type of response because we are in 11 trial, which is exactly why it should have been 12 provided before trial and given me a reasonable 13 opportunity. 14 As the Court knows, I sent the 15 letter last week with the late disclosure of 16 witnesses and I did that for a reason, because I 17 wasn't sure if they were done with coming up with 18 late things to occupy my time instead of preparing 19 for this case, and they weren't done. They come up 20 with not even the 11th hour, into the 12th hour 21 with this tape, and how can I reasonably respond to 22 this type of medium? 23 First, you didn't ask me this, but 24 it is basically an opinionated testimony 25 memorialized on videotape, but there is no 26 1 reasonable way that I can respond and produce my 2 own videotape to counter this type of evidence. 3 And I think the medium is important for the Court 4 to consider. 5 This exhibit isn't just a tape 6 recording or something. This is something that 7 takes, apparently, technical expertise to prepare. 8 It is animated in portions. Defense counsel, 9 themselves, have said each minute of tape takes an 10 hour to prepare. The tape is 20 minutes long, so 11 it would take at least -- I assume once you have 12 the script and in the studio and the equipment 13 and -- it would take at least 20 hours to produce 14 this tape. It is 20 hours that I do not have time 15 in the middle of this trial, that I just don't have 16 that time to do that, let alone the resources. 17 THE COURT: Not knowing the specific 18 facts of the case, I read through the script and 19 seemed to me the gist of the script, as I said this 20 morning, background information, simply explaining 21 operation of computers and the necessity of 22 passwords and firewalls and those sorts of things 23 that we're going to be hearing about during this 24 trial and why computer owners devise such things 25 such as passwords and fire walls and that sort of 27 1 thing. 2 There are some -- obviously some 3 opinions on those sorts of things and there are 4 other matters -- Are there matters in there, after 5 talking with your witnesses, that you disagree with 6 that you believe need another point of view? In 7 other words, I saw it as being sort of a -- in 8 reading it, at least the script, as being an 9 explanatory sort of thing to bring us up to speed 10 on some of the terminology and that sort of thing. 11 If you think it goes farther than 12 that, you may be correct, but I'm not aware of the 13 facts of this case or what matters you may dispute, 14 that sort of thing, that may be on the tape. 15 Are there matters on the tape that 16 you -- from the State's' standpoint, factual 17 statements, that sort of thing, that you dispute or 18 you wish to present another side to, that sort of 19 thing? 20 MR. TINTERA: Well, it's more the 21 gratuitous opinions of the person putting on the 22 tape that -- he refers to someone on Page 4, that I 23 was provided, that the news media has corrupted the 24 meaning of "hacker" into someone that uses the 25 computer illegally. That's an opinion that's laced 28 1 in there. 2 The paragraph before that, they 3 reference, let's say, a hacker in Germany. That 4 specifically relates to information that they 5 receive from Intel in regard to an incident that 6 occurred in the Intel Corporation. That's exactly 7 what that's talking about. 8 On Page 5, they talk about because 9 it is necessary for people inside the company that 10 frequent access to the outside world and vice 11 versa -- this is the no-big-deal theory of the 12 defense. What happened here was -- it was just a 13 way to communicate a little quicker, and what's the 14 big deal here? That's a whole page of attempting 15 to give the jury the idea that boy, this is 16 something that goes on in business all the time, 17 people when they need to communicate quickly, they 18 just set up a mirror gate on any computer and boy, 19 what's the big problem here? 20 THE COURT: Earlier, you indicated 21 one of your concerns was the fact that the jury 22 would have this in the jury room. In other words, 23 that you will be presenting different testimony and 24 they won't have your version of it in the jury 25 room, but if I permit this exhibit in, they will 29 1 have the defense expert version of it in the jury 2 room. 3 MR. TINTERA: Yes. In fact, he 4 tells us at the beginning of the tape, "Why don't 5 you watch this twice," and at the end he says, 6 "This completes my portion of the testimony." 7 He refers to putting on a gate 8 program as one way to make life easier for the 9 knowledgeable computer user so you don't have to 10 type in all the nasty addresses and numbers, and 11 they might get one wrong and whatever they are 12 sending might not go through. 13 THE COURT: You'll get a chance to 14 ask him that when he testifies. 15 MR. TINTERA: Yeah, but I won't be 16 able to send my questions back to the jury room. 17 That's the point. They get to exacerbate that 18 portion by putting it on a videotape and sending it 19 back to the jury room. 20 THE COURT: Would you have an 21 objection if the Court permitted it to be played as 22 demonstrative evidence but not to be taken into the 23 jury room? 24 MR. TINTERA: That's better. 25 THE COURT: I did a little bit of 30 1 research and I found some authority for that sort 2 of thing and not specifically on videotapes, but 3 sometimes on models and diagrams and that sort of 4 thing that are prepared for use in explaining 5 matters to a jury. 6 MR. TINTERA: Judge, if they want to 7 use this tape, my ideal solution and 8 non-objectionable solution is to play the tape 9 without the sound with Mr. Laird in front of the 10 jury explaining what it is. Now, that is a use of 11 demonstrative evidence where the witness uses the 12 prop to explain their testimony. It is not 13 demonstrative evidence to have them play the tape. 14 How can I object to what he's saying 15 on the tape? First, there is no question. He's 16 just saying it. What if I object to portions? 17 There is no way for me to respond to that. 18 THE COURT: After it's all over, I 19 can rule on it. 20 MR. TINTERA: Thank you, Judge. 21 Those are my thoughts. If they want to deal with 22 the animation and the special effects that are on 23 the tape, that's fine. It's the narrative aspects 24 of it that I object to. I don't think it's proper. 25 I certainly don't think it's proper to go back to 31 1 the jury. But I think the proper way, if they want 2 to use it as demonstrative evidence, is to have 3 their hired expert, along with the presentation, 4 explaining what it is that they would like to have 5 the jury see. 6 THE COURT: Then I assume you would 7 also say, if I did permit this, you would like to 8 be warned in advance so you could have produced a 9 similar tape yourself to give to the jury to go 10 into the jury room. 11 MR. TINTERA: I can't tell you for 12 sure if I would have done that. I can tell you now 13 it's too late for me to do that. It's something 14 that I think we would have explored. I don't know 15 the cost. That's always a concern for the State. 16 THE COURT: Sure. 17 MR. TINTERA: But it's something 18 that we don't have the opportunity to do now. I 19 would have explored it, I would have had time to 20 think about it. 21 THE COURT: Mr. Sussman. 22 MR. SUSSMAN: Your Honor, kind of 23 reiterate the terms in the production of this in 24 the disclosure. This was made available to the 25 earliest possible time to get this completed. 32 1 The history of this thing is that 2 Mr. Johnson-Laird became known to us and we 3 contacted him and he began assisting us, not a year 4 and a half ago, or however long this case has been 5 going on, but we just learned of his existence and 6 that he was available and became available to us in 7 the middle of April of this year. 8 As the Court previously -- 9 Mr. Johnson-Laird was not only out of the state and 10 unavailable to complete the workup on this case, he 11 was out of the country for six weeks from the 12 middle of May. 13 The discussions of this or at least 14 the initial steps of proposing this type of aid to 15 his testimony, which deals with areas that are very 16 technical, and based on our experience in these 17 hearings, it can be very confusing. And it was to 18 produce something that would provide a basic 19 educational tool that would explain basic concepts 20 in a way that would make the testimony that came 21 later and that dealt specifically with the 22 case-related issues more understandable. 23 Now, because of Mr. Johnson-Laird's 24 unavailability, because of the cost involved in 25 producing this, the commitment couldn't be made on 33 1 that until after he -- couldn't be finished until 2 after he got back from Singapore. And he had been 3 working on -- having worked with us on the 4 production of that, and it was something that for 5 our purposes was not provided to us until this past 6 Monday when I got the script for it. I sent that 7 over to Mr. Tintera immediately and the tape was 8 made available as soon as we received it. 9 The only changes in the tape are 10 things that deal with -- as I told the Court, that 11 are different, involve some fine-tuning on some of 12 the animation. 13 So this is something that simply was 14 not available to have been provided to the State 15 earlier and it is simply like a model or 16 demonstrative aid, which is basically educational, 17 and to inform the jury about different concepts. 18 THE COURT: Did you even tell 19 Mr. Tintera that you were producing it? 20 MR. SUSSMAN: On June 7, I sent him 21 a letter with my first list of witnesses and told 22 him of the expert and that we would be using a 23 videotape, but that was not yet available. And I 24 had told him subsequently that as soon as it was 25 finished and it was available, I would let him know 34 1 and make it available. 2 That's where things went. We could 3 not have gotten this completed and gotten it to him 4 any sooner. 5 THE COURT: Is there anything on the 6 tape except for the graphics, the animation sort of 7 material, that you couldn't produce through his 8 live testimony? 9 MR. SUSSMAN: The things are 10 interwoven the way it's set up. And, again, I 11 would encourage you, before ruling on this thing, 12 to view the tape. Mr. Johnson-Laird will represent 13 to the Court -- would say, "This will be 14 substantial assistance to my presentation and to 15 any testimony later on." 16 THE COURT: How long is the tape? 17 MR. SUSSMAN: Tape takes 20 minutes. 18 THE COURT: I'll look at it this 19 evening and rule on it tomorrow. 20 MR. SUSSMAN: I would suggest a 21 couple other things. That the State objecting to 22 the narrative portions of this thing are things 23 that the State obviously had the opportunity to 24 look at and scrutinize out of the context of the 25 entire piece, but if there are sections which are 35 1 arguably inappropriate, like the suggestion that 2 you look at this again or that this is a reference 3 to testimony, there are ways to exclude that 4 portion of the tape. 5 THE COURT: I'm sure, but I'd like 6 to get this case on and get it tried. We already 7 have one juror that has to be out of here at the 8 end of next week. I can't be sitting here and 9 babysitting and editing this thing. 10 MR. SUSSMAN: I think this tape will 11 expedite the process because it will take a portion 12 of the testimony which would have taken 13 significantly longer and -- 14 THE COURT: At least it won't be 15 interrupted by Mr. Tintera's objections. We know 16 it will go quicker. 17 MR. SUSSMAN: Mr. Tintera knows in 18 advance the part of that tape that he finds 19 objectionable. 20 THE COURT: Let me look at it this 21 evening and we'll talk about it more later. 22 MR. TINTERA: I do have counsel's 23 letter of June 7, which he just referenced to the 24 Court, identified the videotape that would be -- 25 that Johnson-Laird would be producing. That is not 36 1 accurate. 2 I would like this copied and offer 3 this as an exhibit. What it actually says on a 4 page not close to where he talks about 5 Mr. Johnson-Laird is that "The defense intends to 6 offer physical evidence which can include diagrams 7 and/or videotapes. As these items are generated, I 8 will inform you and make them available for your 9 inspection." 10 THE COURT: We'll have that marked 11 for the purposes of this hearing. State's Exhibit. 12 Do you have any other exhibits marked? 13 MR. TINTERA: For the trial portion, 14 yes. 15 THE COURT: We'll mark this just 16 Exhibit 1 for the purpose of the hearing. This is 17 not a jury exhibit, but just for the purpose of the 18 hearing on the admissibility of the videotape. 19 Anything else before we bring them 20 in? Are you ready for opening statements? 21 MR. TINTERA: Yes, Your Honor. 22 THE COURT: How long do you 23 anticipate? 24 MR. TINTERA: I'm very brief. 25 THE COURT: Mr. Sussman. 37 1 MR. SUSSMAN: I'm not as brief as 2 Mr. Tintera. I think that we might get -- may go 3 close to, between the two of us, for the rest of 4 the afternoon. 5 THE COURT: That's fine. As long as 6 we don't go past 5:00 o'clock. You're saying you 7 think you can finish about 5:00 o'clock? 8 MR. SUSSMAN: Depending how long 9 Mr. Tintera -- 10 THE COURT: He isn't going to be 11 very long. 12 (Whereupon, the following 13 proceedings were held in 14 open court, the jury being 15 present:) 16 THE COURT: Ladies and gentlemen of 17 the jury, I am going to give you a preliminary 18 instruction that I think will be helpful to you in 19 understanding and following what we will be going 20 through here this week and probably most of next 21 week. 22 Your duty as jurors will be to 23 decide the facts from the evidence. Although you 24 may draw reasonable inferences from the evidence, 25 you must not engage in guesswork, conjecture or 38 1 speculation. To be an effective juror, you must 2 not be influenced in any degree by sympathy for or 3 prejudice against any party in this case. 4 It is your duty as a juror to follow 5 all of the Court's instructions. The evidence will 6 consist of the testimony of witnesses and exhibits 7 that are received into evidence. Exhibits are 8 physical things such as letters, photographs, 9 charts or physical objects. You will be able, 10 while you deliberate, to examine any exhibits that 11 are received into evidence. 12 My decision whether to allow you to 13 hear or see certain evidence is based upon certain 14 legal rules. From time to time, an attorney will 15 make an objection to evidence. I will decide 16 whether or not it is proper under the law for you 17 to consider such evidence. You should not 18 speculate about why the objections were made or 19 about why I ruled as I did. You are not to 20 consider testimony or exhibits that I have excluded 21 or ordered stricken from the record. 22 The attorneys will make opening 23 statements very shortly and later, at the end of 24 the case, their final arguments to you. These 25 statements and arguments are intended to help you 39 1 evaluate the evidence. However, keep in mind that 2 the statements made by the attorneys and their 3 arguments are not evidence. 4 The fact that a criminal charge has 5 been filed against the defendant is not evidence. 6 The defendant is innocent of any crime or 7 wrongdoing unless and until the State proves his 8 guilt beyond a reasonable doubt. 9 You must not interpret any statement 10 or ruling or remark made by me during this trial as 11 any indication that I have formed any opinion about 12 the facts or the outcome of this case. You and you 13 alone are to decide the facts. You must decide how 14 believable the evidence is and what weight or value 15 that you will give to the evidence. 16 You may take notes, if you wish, 17 during these proceedings. However, please keep in 18 mind that each party is entitled to the considered 19 decision of each juror. You should not allow your 20 note-taking to interfere with your ability to 21 observe and evaluate the witnesses as they testify. 22 When you leave at night, your notes must be left in 23 the jury room. 24 You are not to discuss this case 25 during the trial with anyone, including any of the 40 1 attorneys, parties, witnesses, or with any of your 2 friends or members of your family. You should not 3 even discuss this case with other jurors until you 4 begin your deliberations at the end of the case. 5 You should not attempt to decide 6 this case until you begin your deliberations. At 7 the end of the case, I will tell you the legal 8 rules that you must follow in deciding this case. 9 If any person tries to talk to you 10 about this case, tell that person that you cannot 11 discuss the case since you are a juror. If the 12 person persists, you should simply walk away and 13 report that incident to me. You must ignore any 14 such communication or attempted communications. 15 You should not make any independent 16 personal investigations into any facts or locations 17 concerning this case. You should not look up any 18 information in books or dictionaries. Do not 19 communicate any private or special knowledge about 20 the facts of this particular case to other jurors. 21 You must decide the case based on 22 the evidence -- only upon the evidence received 23 here in court. Do not read any news stories or 24 listen to any radio or television reports about 25 this case or similar cases. 41 1 You will now hear the opening 2 statements by the attorneys where they will outline 3 the evidence as they expect it to be. After the 4 opening statements, the evidence will be presented. 5 At the conclusion of the evidence, the attorneys 6 will make their closing arguments to you and then I 7 will explain to you the law that applies to this 8 case. 9 At the end of the trial, you will 10 make your decision based upon what you recall of 11 the evidence. You will not have a written 12 transcript of testimony of witnesses to consult and 13 I will not permit the reporter to read back 14 testimony to you. So I urge you to pay close 15 attention to the testimony of the witnesses as it 16 is given. 17 It's time now for opening 18 statements. State gets to go first. 19 Mr. Tintera. 20 MR. TINTERA: Thank you, Your Honor. 21 Ladies and gentlemen of the jury, 22 this is the time to give you an idea of where the 23 evidence is going in this particular case. 24 I want to take you back to 25 November 1st, 1993. On that particular date, just 42 1 after 5:00 o'clock in the afternoon, Judge Karl 2 Freerksen of the District Court of Washington 3 County authorized a search warrant, and that search 4 warrant involved a residence on Butner Road. 5 Police detectives from the Sheriff's Department 6 went to Butner Road and that was the home of Randal 7 Schwartz. And through court authorization, his 8 computer equipment was seized. 9 He was home with his brother, 10 Russell Schwartz, and when the police were there, 11 they advised him of his constitutional rights per 12 the Miranda decision and was told that he had a 13 right to remain silent, anything he said could and 14 would be used against him in a court of law. If he 15 couldn't afford an attorney, one would be appointed 16 for him, and he could quit being questioned at any 17 time. Didn't have to talk to the police. 18 After that advisal by Detective 19 Lilley, he had a heart-to-heart, one-on-one 20 conversation with Detective Lazenby and Mr. Lazenby 21 asked him an open-ended question. He asked the 22 defendant, "Mr. Schwartz, did you do anything 23 wrong?" And he said, "I know what I did violated 24 Intel policy and I know what I did, I could be 25 prosecuted criminally for." 43 1 He was later interviewed by 2 Detective Jim Lilley, who reiterated those 3 thoughts, and essentially to Mr. Rich Cower, who is 4 the security expert and analyst for the Intel 5 Corporation and reiterated those same things, "I 6 knew what I did was against Intel policy and I know 7 what I did is illegal." 8 What led up to the search warrant? 9 On October 28th, a young man named Mark Morrissey 10 who operates -- Intel gives computers names. He 11 operates a new computer called Snoopy, and while he 12 was checking that out shortly after noon, he 13 noticed a process running or program running on the 14 computer that he was not familiar with. 15 He looked into that program or 16 process and what he saw was a program that was 17 running a deciphering program for passwords called 18 Crack, Crack 4.1. It's a program that runs 19 permeations against passwords to try -- runs them 20 very quickly to try to what it calls "guess what 21 the password is." And that program was identified 22 with the defendant. The program was the password 23 file or the passwords for the Supercomputer 24 Division for Intel. 25 Mr. Schwartz did not work at the 44 1 Supercomputer Division. He worked at Hawthorn 2 Farms, a computer division at Cornell Oaks. He had 3 worked there prior, but his contract ended towards 4 the end of 1992, and he was no longer associated 5 with the Supercomputer Division, and yet he was 6 running a crack program against their passwords. 7 When he told the investigators why 8 he did that, was that he wanted to do it so that he 9 could continue what is Count 1, to gain access from 10 outside of Intel into Intel on his own terms. 11 Let me explain what I mean by that. 12 In March of 1993, Dirk Brandewie, who works for 13 Intel and operates and controls a computer called 14 Mink. Mink is a computer where people inside of 15 Intel -- there is protections to keep Intel from 16 intruders from outside of Intel, mostly the 17 Internet, which is other computer workers, and 18 that's called the firewall. But to allow people 19 inside Intel -- sometimes a business requires them 20 to communicate with other computers. To do that, 21 they have certain designated computers. One of 22 those is the Mink computer, and Dirk Brandewie is 23 the person that administers that to make sure that 24 whatever people do to make computers go, this one 25 goes. 45 1 He looked on there and saw something 2 that concerned him. It was a program that we'll 3 refer to as the door program that the Mink computer 4 allows people from inside Intel to go through it, 5 out the firewall and into the Internet. It does 6 not go the other way. It is a one-way door out of 7 Intel. 8 What he found was what the defendant 9 had put there through a computer program which 10 altered the computer, was the other way. He made 11 the door go both ways for him. That was against 12 Intel policy and Mr. Brandewie talked to 13 Mr. Schwartz about it. 14 He said, "Look, it cannot go both 15 ways. This is against Intel policy. You're going 16 to have to put some blocks or gates so that people 17 can't come in." And you can understand why. Intel 18 as a corporation spends millions of dollars on 19 research and development of its next generation and 20 next generation and next generation of computers, 21 and to allow anyone who wanted to to come in, 22 competitor or whatever, through this door that's 23 now going both ways is an unacceptable security 24 risk for Intel, and that's why their policy forbids 25 that. 46 1 So Mr. Brandewie thought he had an 2 understanding from Mr. Schwartz. He told him to 3 put the blocks on there so people can go out and 4 that would work fine. Mr. Brandewie thought they 5 had an understanding. 6 Well, Mr. Schwartz, in spite of what 7 he knew about the policies at Intel, that was 8 unacceptable to him. He wanted to be able to go 9 both ways. He says it was to get his e-mail. It 10 was important enough he didn't want to wait until 11 he got home to get electronic messages. He wanted 12 to get them while he was at Intel and working at 13 Intel. 14 He had tried a computer called 15 Hermeis. Wasn't fast enough. Mr. Schwartz, you 16 will find out, is very computer skilled and that 17 skill has got him here today because he refuses to 18 go along with the policies of the place he was 19 working, and in this case Intel. 20 Anyway, he tried a computer called 21 Hermeis and that wasn't fast enough. So he wrote 22 another program and this one called Gate. So then 23 he came back to Mink and put on Gate and -- but he 24 was caught again in July of 1993 by Dirk Brandewie. 25 And Mark Morrissey was involved in this also. And 47 1 Mr. Schwartz and Mr. Brandewie had another 2 discussion about, "What didn't you understand when 3 I said it cannot go both ways? This program can 4 only allow you to exit Intel. The blocks have to 5 be there." 6 Mr. Brandewie told him, "If you get 7 the signature of a security person allowing you to 8 have this program on this computer, then I will 9 permit it, but it's against Intel policy. Unless 10 or until you have security clearance to do this, it 11 cannot be there." 12 Mr. Schwartz indicated, "If that's 13 the case, then I don't need this to happen," and 14 that was the end of it for Mr. Brandewie. And 15 Count 1 alleges that the defendant, in part, 16 altered the Mink computer by placing a gate program 17 on it, altered its operation. In other words, went 18 back and forth instead of just out. That's Count 1 19 of these charges. 20 So then what happened? Well, what 21 we can show you, that October 28th when Mark 22 Morrissey saw this crack program being run, there 23 were certain things, and I can't explain them to 24 you, but we'll hopefully have a witness, Mr. Cower, 25 who can. The language that the computer was 48 1 showing was referencing a computer called Brillig. 2 Brillig is a computer in the Supercomputer 3 Division. 4 When Mr. Schwartz's contract at the 5 end -- towards the end of 1992 was terminated, his 6 accounts or password or access to the Supercomputer 7 computers was what they called disabled, but those 8 were cut off also, except for one. John Kent will 9 tell you there was an oversight. 10 There is one computer that's not 11 part of their network because it was being used for 12 a special project and the network administration 13 affected that project, so it was off the network 14 loop. So when all the passwords -- Mr. Schwartz's 15 passwords were disabled, this computer Brillig was 16 overlooked and what that allowed, although 17 Mr. Schwartz told Rick Cower that he knew although 18 he had an account on that computer, that he was not 19 authorized to use it, he had no work on that 20 computer. He did use the computer and here is what 21 he did. 22 Once he was kicked off Mink, he 23 needed -- or wanted, I suppose is a better word -- 24 he wanted this access to the outside world and he 25 wanted it to go both ways, and he realized that he 49 1 had an account on Brillig. And the Supercomputer 2 Division has a lot of communication through the 3 Internet and with the Internet because of the 4 nature of the computers that they create that can 5 communicate with the people who purchase them 6 through the medium of a phone line called the 7 Internet for computers. And that's what they -- so 8 there is a lot of connections to the Internet there 9 and Brillig is one of those machines. 10 What he did was took his Gate 11 program, Mr. Schwartz did, and put it on Brillig 12 and he now used Brillig instead of Mink to violate 13 Intel's policy and have that door go both ways. 14 And the problem there is that anybody can walk 15 through that door. It's like opening the door and 16 putting the key right outside of it. So he did 17 that. 18 He told the investigators he did it 19 so he could get his electronic mail. He knew it 20 was against policy, but he did it anyway. Then he 21 took it one step further, and this is where it 22 comes to the Crack program, that is running 23 permeations against the password of the 24 Supercomputer Division. 25 Each computer system -- I can't say 50 1 that. I know that the Brillig, and I'll have a 2 witness that will tell you that the Brillig 3 computer had a password file on it, but it was not 4 the complete file of the Supercomputer Division. 5 What we'll be able to show you is that 6 Mr. Schwartz, in September or thereabouts, I can't 7 tell you the exact date, ran the Crack program 8 against the Brillig computer system on their 9 passwords, and that's a smaller group of passwords. 10 But in that group are also users in the 11 Supercomputer Division that are here. So once you 12 have this password, you now have their password in 13 the Supercomputer Division. 14 So what he did was, he took one of 15 those passwords that now he can use and he said he 16 used a person called Ron B's password. He used 17 that password to gain access to the Supercomputer 18 Division. So he's using someone else's password to 19 go into the Supercomputer Division computer and 20 once there, he copied the Supercomputer Division 21 full password file and that's what was found, both 22 the Brillig password file and the full 23 Supercomputer Division password file was found on 24 this computer called Snoopy by Mark Morrissey on 25 October 28th. 51 1 The Supercomputer Division, you'll 2 hear from Ed Masi, who is the president of that 3 division, is one of the most research intensive 4 areas of Intel. The proprietary information there 5 is worth a lot of money and it is very sensitive to 6 Intel that that information stay just where it is, 7 not in the competitors' access, but right where it 8 is with Intel. 9 The concern was, here we have a 10 contractor with Intel at Hawthorn Farm, not at 11 Cornell Oaks where the Supercomputer Division is, 12 running a deciphering program against one of 13 Intel's most knowledge-sensitive or 14 security-sensitive areas. And Intel reacted and 15 they reacted in a way that they monitored this 16 activity and wanted to get to the bottom of what 17 was happening here. 18 This goes back to that evening on 19 November 1st, because Mr. Schwartz was asked, "What 20 were you doing?" What he said was -- first he 21 said, "I'm just testing security." But when they 22 got down to the bottom of what he was doing, it was 23 his own personal preferences. He told the 24 investigators that "I thought I was going to get 25 caught on Brillig and I wanted to have the 52 1 passwords of some other computers so I could do 2 what I wanted to do in regard to working at Intel. 3 I don't want to follow their rules," essentially is 4 what he said. "I want to do what I can do and I 5 want to do it my way and I have the ability to do 6 it," and the arrogance to do it, and so he did. 7 So he went into a division he's not 8 working at and he took their password file. That's 9 Count 2, theft of a password file, and converted it 10 to his own use. 11 Count 3 is running a crack program 12 against the password files because now he's 13 converting those passwords, which are encrypted, 14 they are in code to his own use by decoding them 15 and being able to use them, which he admitted that 16 he did when he used Ron B's password to go into the 17 Supercomputer Division itself. 18 So when you do that, it's like 19 you're impersonating someone. It's like he's 20 impersonating Ron B when he uses someone else's 21 password. Because all the computer knows is Ron B 22 is now on the system. Doesn't know it's Randal 23 Schwartz who has cracked its password. 24 Those are the three counts. Count 1 25 is placing the Gate program on the Mink computer 53 1 and the Brillig computer. And Count 2 is taking 2 without authorization the password file of the 3 Supercomputer Division, and Count 3 is taking it 4 one step further and running a Crack program to 5 decipher those passwords. Thank you. 6 THE COURT: Thank you. Mr. Sussman. 7 MR. SUSSMAN: Around 6:30 in the 8 evening of November 1st, 1993, about 6:00, 9 detectives and Washington County sheriff's deputies 10 showed up at Randal Schwartz's house with a search 11 warrant, as you've been told. They were determined 12 to search his house and seize his computer 13 equipment and all of his computer files and to talk 14 with him. 15 At that time, Randal Schwartz 16 entered a world that he had only heard about on 17 television, on the news, maybe on films. It was a 18 world that was about as strange to him as this 19 world of computer technology and computers is to so 20 many of us outside that business, and that's the 21 world of a person who has suddenly found himself 22 accused of a crime. A person who had no experience 23 or contact with the criminal justice system before, 24 suddenly found himself thrust in the middle of this 25 with first approximately six officers coming into 54 1 the house insisting on talking with him, and then 2 aided in the searching and the questioning that 3 went on, not by one detective, not by two 4 detectives, but the two detectives, and Intel 5 people who are coming in and out and also assisting 6 in what's going on. 7 Now, what this case is about is how 8 did Randal Schwartz get to that point and why? 9 This case is about a few key things. It's about 10 the difference between perhaps the policies and the 11 practices that a corporation says are there and 12 sometimes the reality of what happens down in the 13 trenches where people are actually working to get 14 things done. It's about how Intel works and a 15 lot -- to a great extent people there and how they 16 do things. 17 Most importantly, it's about 18 criminal purpose. It's about what was done and 19 what was going on in Randal Schwartz's mind. What 20 was he thinking? It's about two key things which 21 the State has to prove to you and which are the 22 basis of this case; knowledge and intent. Because 23 in the first count, the first charge, the State has 24 to prove to you that Mr. Schwartz knowingly 25 altered, fundamentally changed a computer system in 55 1 these computers, knowing that he had no authority 2 to do that. And particularly the second part, what 3 did he know? What did he believe was the key? 4 The second thing, intent is a very 5 important piece of the second two sets of charges. 6 The State said that Mr. Schwartz had access to 7 these computers, to Brillig, and using Snoopy 8 accessed these machines without authorization with 9 the intent to commit theft and theft of a password 10 and from the SSD password files. And there are two 11 key things there. Again, remember, first we 12 have -- and there is a knowing part that did he 13 know he wasn't authorized to do what he was doing? 14 And the question we'll ask you to look at when you 15 look at the practices that were going on, how 16 business was done, what his experience had been and 17 whether the State proved that. 18 The second was what was he intending 19 to do? Can the State prove that he was intending 20 to steal anything? That's the second key thing 21 when we talk about criminal purpose. 22 The basic facts are not going to be 23 in dispute. The facts that Randal Schwartz did are 24 essentially not the issue. We don't agree on all 25 the facts, but essentially the key in this case, 56 1 though, what's the meaning of those facts? The key 2 to the case and the fundamental thing, what was his 3 motivation and what was Randal Schwartz's 4 understanding of what was the appropriate, 5 acceptable conduct that he was allowed to engage in 6 in doing his work at Intel. 7 I guess you have to evaluate this 8 before the case is done. You have to understand 9 who is Randal Schwartz? Who is this guy that you 10 are sitting in judgment about? 11 Randal, as I expect you will hear, 12 is described as a hacker. As you heard from 13 discussion before, that has different meanings. 14 Sometimes you may hear reference to him as a UNIX 15 jock. That UNIX is the main operating system that 16 was going on at Intel. When the question comes up, 17 was he described this way in a complimentary sense 18 or in the sense that the State described him to 19 you? 20 You will hear he's very bright, 21 inquisitive, creative, and with exceptional talent 22 in this particular area. Somebody, as I expect you 23 will hear, who is irritating and arrogant, traits 24 that come with a person who has these abilities and 25 likes and uses. One of three brothers whose father 57 1 walked out on the family when he was 14 years old, 2 leaving Randal to be the primary support and 3 nurturing of the two younger brothers and helping 4 out his mother. 5 While he was still in high school, 6 at the age of 16 -- actually while he was 15, 7 Randal already was starting to use skills that he 8 had developed in computers to provide software 9 services to the Washington County Educational 10 Services District. Graduated high school early and 11 shortly after he graduated at 16, he was already -- 12 he was the youngest employed full-time employee at 13 Tektronix, where he worked for a number of years 14 and provided some remarkable services to the 15 company. 16 He worked in subsequent positions in 17 other high-tech businesses as -- in a variety of 18 positions doing programming, administration, 19 computer systems, developing programs, teaching, 20 and in a way where he developed expertise in 21 computers, that's fairly remarkable. 22 In 1985, he began his own consulting 23 business. Started working as an independent 24 contractor and started working with other computer 25 companies and hiring out his services. Eventually, 58 1 he mastered yet another computer language, a 2 programming language, something called Perl. I 3 mention this to you because you're not going to 4 have to learn Perl, and it's a very confusing 5 thing, even to an experienced computer programmer. 6 He not only mastered this, but has written two 7 leading technical books on programming in this 8 rather complex computer programming language, and 9 he wrote these and worked with a publishing company 10 which was named O'Reilly that was situated in 11 Cambridge, Massachusetts. 12 He's done this without a college 13 education. What he's done this with is a driving 14 intellect and curiosity to master something new and 15 to learn about when he sees something come up, 16 there was this almost compulsion to learn 17 everything there was about it, to get the feel of a 18 computer, the feel of a system and know all that he 19 could so he could become an expert in that and know 20 more than anybody else. And each phase of his 21 experience built on that and has been the driving 22 force in how he has succeeded, how he has operated, 23 and to a great extent how he's gotten himself in 24 trouble with the State of Oregon and Intel and it's 25 got him here today. 59 1 In 1989, he began working at Intel 2 as an independent contractor. Now, I mention the 3 word "independent contractor." He was not an 4 official employee. Independent contractor is 5 somebody who got hired on a contract work and 6 typically they were supposed to be in six-month 7 segments. And the reason they were in six-month 8 segments is because you get less in pay, taxes and 9 benefits different than the way they do full-time 10 employees. And they might just continually renew 11 the contracts and deal with the person that way 12 instead of hiring them full time. 13 One of the things about being an 14 independent contractor is that as an independent 15 contractor, because of the requirements of the IRS, 16 Intel is able to and may dictate the end product of 17 the work that's to be done. But the specific 18 policies and the contracts say they may not dictate 19 the manner in which the job is to be done. 20 Now, as an independent contractor, 21 Randal at Intel worked in a number of different 22 areas. As jobs came up, as projects came up, needs 23 came up, he could contract with somebody in one 24 area of -- one of his earliest jobs was working in 25 a division called IWARP. The significance of that 60 1 is that it was a special section which was actually 2 part of the SSD section and for a number of years, 3 he provided specialized services in administering 4 network computer systems and writing programs and 5 things that also involved an intimate knowledge of 6 skills and systems security. 7 You'll hear a lot of references 8 during the course of the case to a position or a 9 term called the Systems Administrator. And Randal 10 Schwartz performed the duties of a Systems 11 Administrator during the part of his work at IWARP. 12 The significance of that is twofold, as you will 13 hear from the evidence. 14 In those areas, Systems 15 Administrators are all responsible for the security 16 of the computers that they work on and the program 17 systems that they work on. They have to use -- the 18 passwords that people are using are secure so 19 people from the outside can't come in and use them. 20 Systems Administrators, and Randal, in that 21 capacity, would use a tool to test the security of 22 the system, and that tool was a program called 23 Crack, a program that was used in this case and is 24 at issue here. 25 What he would do was, without 61 1 telling the people in his section, he would run the 2 program, do kind of a guerilla attack. Are the 3 passwords good? Are they subject to somebody from 4 the outside coming in? Because this program Crack 5 is something that's readily available on the 6 Internet, used in business, available all over the 7 place because it was -- and it was designed as a 8 tool to test systems security. 9 Then he would -- when he found there 10 were problems, he would tell people, "You have to 11 change this. You have to beef up the security." 12 This is one of the things that he did while working 13 in this system that later became part of SSD. 14 One of the other things he did that 15 was very significant in terms of what did he know, 16 what was his knowledge, what did he believe that he 17 was able to do, was to develop or work on, set up a 18 system that this had -- communicate from inside of 19 Intel to computers that were at Carnegie Mellon in 20 Pittsburgh, Pennsylvania, because of some important 21 matters they were working on. 22 At the time that he did that, Intel 23 had this firewall up that you've heard about, and 24 at that particular time there was a policy which 25 said you can't have this inbound communication from 62 1 any of the machines that are outside of Intel. But 2 at that time, it was set up to accomplish the 3 necessary purposes of this section. Randal 4 Schwartz set that up. Management that he worked 5 with had to buy off on that and it was a practice 6 that was done because the needs of this group had 7 to be satisfied to get the job done. 8 What he understood was, sometimes 9 there might be some practices or there is some 10 policies that could not apply to local leads if it 11 was necessary to get things done and the policies 12 in one place were not always followed or could be 13 different from what was determined to be necessary 14 on machines and the system in another part of 15 Intel. 16 Mr. Schwartz continued to work in 17 various ways and contracts with this SSD division 18 until the spring of 1992. But he had contracts 19 that had him doing work in another area of Intel as 20 well that started to overlap. 21 He began working as a contractor in 22 the spring of 1992 for a fellow named Bob Wilcox in 23 a different campus at Hawthorn Farms. And he, 24 while still doing some work in one of the other 25 sites, he also later on -- during this period of 63 1 time, he was also doing work outside of Intel 2 because, remember, as an independent contractor 3 he's not their full-time employee. He was teaching 4 class in Perl or teaching class outside of Intel. 5 He had work that would take him not only out of 6 town but out of state. 7 Part of the agreement -- part of the 8 contract that he had when he came into Intel, he 9 would at times have to do work at odd hours and 10 off-site, and because he was conscientious, there 11 were times that he felt like he needed to stay on 12 top of his work when he was not even in town. 13 Because if you are monitoring a system and making 14 sure it's working, if something breaks down, it can 15 happen any time of the day and it can happen -- 16 doesn't happen at your convenience and doesn't wait 17 until you come back from Pittsburgh or Arizona, it 18 happens when it happens. If there is a problem, 19 when it comes up, you need to be available and in 20 touch. 21 What he would do is sometimes work 22 at home and he would to -- he carried a laptop 23 computer and that was something that he took with 24 him when he went on trips. And what became really 25 important to Randal Schwartz, somebody not only who 64 1 was concerned about keeping in touch because it was 2 convenient, but also because he was conscientious 3 about doing his job, was that he wanted to be able 4 to do outside of Intel, from the location outside 5 of Intel, whether it be home or on the road, the 6 things that he needed to do when he was inside 7 Intel. This is where we come to the Gate program 8 that you've heard about. 9 Reading e-mail is not just a 10 convenience. E-mail is a means of communication. 11 It's the form of sending messages and communicating 12 back and forth within the industry. There are 13 networks set up throughout, within Intel. Some 14 that go outside and to other campuses because they 15 have campuses and locations throughout Oregon and 16 other states and also through the Internet, part of 17 the information highway that we sometimes hear 18 about these days, and allows communication all 19 around the world. 20 One of the places that Randal 21 Schwartz had set up, that he had an account, a 22 place where he could get -- communicate with as an 23 address for his e-mail, was at the offices of a 24 home computer of his publishing company, O'Reilly 25 in Massachusetts. He had an e-mail address there 65 1 and when he was inside of Intel and needed to send 2 out messages to people that he was communicating to 3 for work for various purposes for his various 4 contacts or for Intel purposes through the 5 Internet, he would go out and go through O'Reilly 6 and then go from there. 7 When he was out, what he needed to 8 be able to do is get back into Intel and find out 9 what was going on, what was on his Intel e-mail and 10 what was going on and what was being asked of him 11 when he was there. 12 He didn't have ready access, the 13 access to quickly and conveniently get the Intel 14 e-mail to stay on top of things when he was outside 15 of Intel and not at home, when he was on the road 16 or someplace else. 17 So what did he do? He wrote a 18 program, because this is somebody who is very 19 capable of and very knowledgeable about how the 20 systems work, and he wrote a program that we will 21 call the Gate program. This is the program that 22 allows you to come through that firewall back in 23 from the outside. 24 You will hear some evidence from the 25 State from the Intel people saying that the program 66 1 he set up was unacceptable and he was told it was 2 unacceptable because it didn't have any security 3 and things were wide open. 4 You will hear other evidence which 5 shows that Randal Schwartz wrote a program that 6 was, as a practical matter, more secure than the 7 firewall itself. But this is where the controversy 8 arose, it arose over how he had done this, and 9 so -- and he was told that, "We don't like the way 10 you've done this. We think it's not secure," 11 because of some technical reasons which you will 12 learn more about later on. 13 So Randal Schwartz's understanding 14 was they don't like the security of this, don't 15 like the way it's set up. "I will change it to 16 meet the requirements there." 17 You will also learn from Dirk 18 Brandewie that the second Gate program that was 19 modified to was one that wasn't objected to and he 20 continued to use this program. But later on, there 21 was an additional question about it and there was 22 concerns about the fact that again a dispute over 23 whether or not on this particular machine, Mink, 24 they would want the -- they liked the way that that 25 security was set up. And when it was brought back 67 1 to Randal Schwartz's attention that, "We're not 2 happy with the way this is set up," the security on 3 this thing," his reaction was and his belief was 4 this is the system, this is the way they are 5 operating Mink. "We don't like the way it's done 6 over here." "If I can't satisfy their security 7 concerns, I think that's the way it's been, that's 8 fine. May as well cancel my account on that 9 because I don't need it. It's just not going to 10 work." 11 He still had -- "I still have 12 access. I have an active password," which in the 13 computer world is typically the indication that you 14 have access to a computer, one of the other 15 computers in a different place in Intel, and he 16 just shifted the program over to that machine where 17 he had the access, where he had the active password 18 account, which was on Brillig. 19 The State has told you and there 20 will be evidence that Mr. Schwartz's contract at 21 SSD terminated in the spring of 1992. What 22 happened also in 1992 was that Randal was working 23 at the SSD division when this IWARP group he was in 24 folded in with another group. He was -- although 25 his skills were very highly regarded, there was a 68 1 dispute that arose over how a certain system should 2 be set up and some of that got around. Some may 3 have been -- may have involved things with 4 different views on how e-mail should be sent and 5 what was the best way and perhaps how secure it 6 was. And he set up a system and found that another 7 manager had basically just changed it and without 8 his -- without their consultation. 9 He said, "It's clear this isn't -- 10 what I'm proposing, I think this is a good way to 11 do it. If they don't want it, that's fine. I 12 don't have to stay here," and posted a message 13 saying, "Look, I'm finished. My contract is done," 14 and he left. 15 The evidence may be in dispute as to 16 whether he terminated the contract or Intel 17 terminated the contract. This is Randal Schwartz's 18 recollection of how things went. But did that 19 terminate his service at SSD? The State has made a 20 point of arguing that he has. 21 The evidence will show that Randal 22 Schwartz continued to do work for one of the 23 Systems Administrators at SSD and he didn't work on 24 a contract basis for another person there in the 25 late fall. He did work there then, long after this 69 1 portion of the contract was terminated. That work 2 involved a Systems Administrator who had a system 3 that included this machine called Brillig. 4 In order to work on the machine, you 5 have to have passwords and he had an active 6 password on Brillig. And after that particular 7 project was completed, Randal believed things had 8 been left open and he had to come back and do 9 follow-up work for this administrator on that 10 system. 11 The indication that things had been 12 left open in his mind was that his password on 13 Brillig was not terminated. The practice in the 14 industry, when you are finished, when you are done, 15 the way you learn is your password is deactivated, 16 cut off. That's sort of like picking up the paper 17 and reading that you've been traded from the Trail 18 Blazers to Houston. That's what sets it off there. 19 But he had the active password and 20 believed and had the understanding that he was 21 still a privileged user of that machine when he 22 transferred the Gate program over to Brillig. And 23 again, what was the purpose, what was his motive, 24 what was his knowledge are the key things there and 25 what he was doing with that. 70 1 In this overlap position that Randal 2 Schwartz had under this fellow Bob Wilcox, 3 beginning in the spring of 1992, he had a contract 4 and that contract involved doing systems 5 administration and network administration and meant 6 setting up computers and getting them configured. 7 In other words, set up in a way that they will run 8 properly and a number of other functions. 9 Well, in the fall, in October of 10 1993, a new computer was installed into that 11 particular section, and that's the computer that is 12 referred to as Snoopy. Now, this is -- what you 13 need to know about it and what the evidence will 14 show is that this machine was the newest and the 15 fastest and most powerful computer that was 16 available in that group. Randal helped set it up. 17 And what he then wanted to do was somebody who had 18 responsibility for working on -- as a Systems 19 Administrator, is that he wanted to test this thing 20 out. He wanted to see how this thing was going to 21 run. So he started working programs. He wanted to 22 run a program on this machine that would test its 23 capabilities. 24 Now, the question may come up then, 25 "Well, why did he run a crack program on Snoopy?" 71 1 This is what triggers the sequence of events here. 2 Randal Schwartz has this new 3 computer that he is curious about, wants to find 4 out all he can about how it works, how it operates, 5 what it can do, what its capacities are. Finds out 6 secondarily, a short time later, that an account 7 that he has on another -- something called a 8 bulletin board system, something that gives you 9 information through the Internet, through an 10 acquaintance and friend of his, someone who will 11 testify named James Deibele had sent up a note that 12 some of his passwords had been cracked from 13 somebody on the outside. 14 So Randal Schwartz is saying, "There 15 are two things that work here. Let me grab this 16 new Crack program." There is a new version and 17 this is a program that demands a lot of computer 18 power. It's quite a test for the capacity of this 19 machine, "And let me run it on this password file 20 from my friend to see how serious the problems are 21 and I'll let him know as soon as we get it all 22 fixed up." 23 And he does it, he cracks a number 24 of passwords by doing this, lets the person know, 25 and he's done him a favor. 72 1 Well, what happens then is as the 2 inquisitive mind continues, he's saying, "What else 3 can this do? Where else can I test this out?" And 4 so he decides to try it on another password file to 5 see how it would respond, and he pulled in the 6 password file from his publisher, O'Reilly, which 7 had a larger password file, and found only one 8 password to crack there and thought, "This is 9 pretty good security here on these passwords. Let 10 me try it again and we'll continue testing this 11 thing out." 12 So he uses his access, his own 13 password to get access to the Brillig password 14 file. And this is something that you can do 15 because if you have an authorized account, if you 16 have a password on a certain computer system, the 17 password file is something anybody can read who has 18 access to that system. So he read the Brillig 19 password file and said, "Let's try it on here and 20 see how good the security is over here." 21 Now, he did this, number one, using 22 his own user name and his own user ID so that it 23 was clear that Randal Schwartz -- to anybody who 24 looked -- that Randal Schwartz was the person doing 25 this. And when he ran this Crack program on the 73 1 Brillig password file, a couple things happened. 2 In the first -- After a run-through, 3 he saw a password come up that he saw was in the 4 SSD, something that he knew was in the main 5 division. When he saw what the password was that 6 was cracked, it was a password that violated the 7 basic common sense security policies and practices 8 that anybody knows. It was a simple dictionary 9 word that you just don't use because it's too easy 10 to guess. Anybody that knows anything about 11 security says you don't use that because it was too 12 easy to guess. So that's the password that came up 13 on that day. 14 So what happens? We have a problem 15 here. This is a security risk here. Could this 16 person have been that foolish to be using this 17 simple a password, not only here on a machine that 18 is basically a laboratory machine, but also on the 19 main SSD machines where there really is sensitive 20 information that shouldn't be available to the 21 outside? We may have a real serious security 22 problem here, and it's one that even may violate 23 Intel security policy. 24 Now, what happens next? This is 25 again -- follow the path of the person with the 74 1 intellect, the drive of this scientist who sees a 2 problem and wants to follow it through to its 3 conclusion. 4 If it has done something to endanger 5 the security at SSD, then you could do -- you could 6 do a couple things. He could have called a person 7 who was the systems administrator on the Brillig 8 file and said, "You have a bad password. You 9 better check it out." 10 Randal thought there were two 11 problems with that. One, everybody is busy, 12 everybody has 20 hours of work to do in a ten-hour 13 day. If you have a problem, his practice had been 14 find out what the problem is, get the specifics 15 down. Just don't say you have a problem with your 16 passwords, figure it out and give them the 17 solution. 18 Why do you do that? Well, it helps 19 and, number two, you get a favor. You do a favor 20 for somebody, you know, you get brownie points. 21 You can ask a favor. Maybe you get something back 22 in return later on. 23 He also saw it as something else. A 24 chance to put on the white hat and come to the 25 rescue and say, "Look, we have a serious security 75 1 problem on the passwords to SSD." And there was 2 the personal side, too. Randal Schwartz, when he 3 left SSD, there was clearly some strains in the 4 relationships there. I think the evidence will 5 show that it was clearly, probably some motivation 6 in there to say, "I told you so," and to show he's 7 the one who was right. It was his ability that 8 should be recognized and that security wasn't quite 9 so good since he left. 10 In doing -- In getting the brownie 11 points and trying to get the favor, it would allow 12 him -- he had expected and hoped that what that 13 would allow him to do is later on get the -- be 14 able to continue using the SSD computer, which is 15 much faster than the other ones available to him at 16 32 different sites around Intel, and is really 17 where he had access to the different systems, to 18 the Internet, to get e-mail, to do his work more 19 efficiently and effectively and quickly when he was 20 off site or off campus. 21 But what was the problem? What was 22 the real problem here? Well, when he copied the 23 password file, it was -- he started running it on 24 October 21st and he started running it and pulled 25 it on Snoopy and the machine that he was testing 76 1 out and running it there. This is a machine -- the 2 Crack is a program that takes a long time and 3 basically just guesses like combinations of numbers 4 and letters, common dictionary terms and 5 combinations of letters and numbers that are used 6 in passwords, and he pulled the password file over 7 and he named it something very clever to avoid 8 something that was sure to avoid detection. He 9 called it password SSD, and then he also put it in 10 the file under his own user name, a name called 11 Merlyn, something he had been using since 1980. 12 Everybody at Intel knew him as 13 Merlyn and he was running the program under his own 14 ID with the password in a file that said, "I'm 15 running Crack," and file said, "I'm running it on 16 password SSD," completely out in the open. 17 So he starts running it on October 18 21st and the first day it pops up 10 or 12 19 passwords. That's when he discovered, after 20 discovering the password that was Ron B's, and he 21 looked at that and said, "We have got a problem. 22 Let me" -- the only way to figure out how big a 23 problem this is is when you -- is to log in as Ron 24 B and see how much -- to see if it -- when he does 25 that to see if that gets you into the SSD cluster. 77 1 It did. It started running the SSD 2 password file and at that point, a number of other 3 passwords came up and he took a quick look. 4 Interestingly to himself, he noted that none of the 5 people who worked with him and who, when he ran 6 Crack at SSD, had passwords that showed up being 7 cracked, being broken and he let it go. 8 That was the last time he logged in 9 to look at passwords and running that crack program 10 before November 1st. It was running out in the 11 open with his own ID numbers and own files until 12 October 28th when Mark Morrissey, who was the 13 Systems Administrator who was dealing with Snoopy, 14 who was concerned that Randal would be using the 15 machine in a way that might interfere with the 16 things that he was trying to do, logged on to check 17 into it and he saw this program running and he 18 saw -- and he looked into it and saw that it was 19 Randal Schwartz running a program called Crack and 20 he saw it was named password SSD. 21 So between the 21st and 28th, Randal 22 Schwartz had not logged back on, had not used -- 23 there is no evidence that he used any of those 24 passwords to log into the SSD machines to see what 25 was there. 78 1 Mark Morrissey, seeing this 2 happening, went directly to management to say, 3 "This is what's going on." And Intel then began an 4 investigation into the running of this Crack 5 program on Snoopy by Randal Schwartz. And their 6 investigation over the next couple days showed them 7 basically two things: Number one, that Randal 8 Schwartz had first used an unconventional method, 9 Gate program, to allow him to get access to his 10 workstation inside of Intel from outside of Intel, 11 although it allowed him to do no more and no less 12 than he could have done when he was at his own 13 station inside Intel. 14 The second thing was, he was running 15 Crack on the SSD password file, and by that time it 16 had cracked about 40 passwords. But two of the 17 passwords that were cracked belonged to Ed Masi, 18 the vice president of SSD at the time, and the 19 other one belonged to Justin Rattner, who was the 20 chief engineer or one of the architects for SSD, 21 this particular division. 22 And panic set in because -- the 23 question, of course, comes up, should these guys 24 have had passwords that were that easily cracked in 25 the first place? The investigation there, the 79 1 response was this was a serious problem. We don't 2 know because of the sensitive information at SSD 3 what Randal Schwartz is up to. This is all they 4 knew, these two things, but didn't know what more 5 was going on. 6 So Mark Morrissey and a number of 7 other people in management got together on October 8 29th in a meeting, and at that meeting there was 9 discussion about what to do. Somebody suggested 10 let's talk to Randal Schwartz and find out what 11 he's up to, but the decision was made then not to 12 talk to Randal Schwartz but to prosecute him, to go 13 to the police and by that time, all of the files in 14 Randal Schwartz's computers at Intel had been 15 copied and backed up. All his activities were 16 being monitored. 17 On Monday, November 1st, the next 18 time Randal Schwartz came to Intel, his activities 19 were being monitored and he didn't -- and there was 20 no effort to log into any of the files behind any 21 of the cracked passwords. Or, in fact, there is no 22 record of him logging into that particular program. 23 The police were brought in on 24 November 1st and they were told that Randal 25 Schwartz had committed a crime. And the only way 80 1 we can -- and the concern that was expressed was 2 that Randal Schwartz could be copying sensitive 3 information and taking it out of Intel, that he 4 could be stealing our secrets and that he could be 5 doing this by copying it onto his laptop computer 6 that he can carry outside of Intel. And the only 7 way to find out if he's taking anything is to get 8 search warrants, go to his house and seize the 9 stuff and take a look at it. 10 And that's what happens. That's 11 what was done. They got the search warrant so they 12 could look for this sensitive secret information 13 that the people at Intel were convinced or perhaps 14 afraid that Randal Schwartz had copied. What other 15 reason could there have been for breaking in in 16 their minds, for running the Crack program on the 17 SSD password file. 18 The Intel people were intimately 19 involved in drafting the search warrant affidavit. 20 Detective Lilley, who drafted the affidavit and was 21 brought in to do the investigation, along with 22 Detective Lazenby, had never investigated a 23 computer crime case before. This is the first 24 case. Detective Lilley, who did most of that 25 investigation, at that time was unfamiliar with the 81 1 technology, with the terminology and the operations 2 of things and had to rely on the representations of 3 the people at Intel as to what was happening and 4 what did all this mean. 5 They got the search warrant and at 6 6:30, Detective Lilley, Detective Lazenby, and four 7 other deputies and a number of people from Intel 8 showed up at Randal Schwartz's house and they went 9 into the house, fanned out and searched. 10 When they first came into the house, 11 the first thing they did was say, "We have a search 12 warrant. We're here to search your house." 13 The second thing they did, not only 14 Randal Schwartz, but they brought his brother into 15 the living room and sat them down on the couch and 16 read them their Miranda rights, the rights to 17 remain silent, the rights that announce to somebody 18 that you are under investigation to a crime. "If 19 you say something and we hear it, we can use it for 20 something criminal going on here." 21 For a person who's never experienced 22 this before, having a house full of people, going 23 through it and being asked if we can talk with you 24 and talk with you in the back room where the 25 conversation -- where the questioning went on for 82 1 at least an hour or hour and a half, and perhaps 2 longer with Detective Lilley most of the time, 3 Detective Lazenby coming in and out, with people 4 from Intel coming in and out continually and Randal 5 Schwartz believing in his heart that he hadn't done 6 anything wrong, he hadn't done anything intending 7 to harm Intel's interests or anything that was 8 criminal, tried to explain, figuring that, "If I 9 explain what happened, I know that I was just 10 trying to do something that was -- seemed within 11 what I've been doing and I have legitimate reasons 12 for it, then everything will get cleared up." 13 But the problem was -- and what 14 Randal Schwartz didn't understand -- Randal 15 Schwartz, in their mind, had committed a crime and 16 they were there to get evidence of the crime. So 17 the questions that were asked and the way things 18 that were heard were -- could be heard and meant in 19 different ways. 20 One of the first things that Randal 21 Schwartz told them when he was asked what this was 22 all about, he said he was testing the security of 23 the system. But as the State suggested, that 24 answer wasn't satisfactory because that's not the 25 answer they were looking for. 83 1 So they continued the questioning 2 and the admissions, the things -- the statements 3 that were described were things which you are going 4 to have to decide as the trier of fact whether 5 those were the words that were said, exactly what 6 was said, what was intended, how was it said and 7 what was the meaning, and really whether the 8 State's evidence about that conversation, what it's 9 really worth, you are going to be the ones to make 10 that determination and keeping in mind that the 11 people under circumstances of stress may misspeak, 12 may not explain themselves clearly, may not 13 articulate, whether it be with the police in your 14 house or whether it be because you're anxious then 15 standing in front of a jury. 16 But while the statements were being 17 made and the police going through the house and 18 they seized his computers and seized his files and 19 they took them and held them for 30 to 45 days 20 until they could have other people, experts, in 21 going through computers make a mirror image of 22 everything that was in those computers and they 23 could get the programs that could look at all the 24 information on the computer's hard drive, the files 25 in there, and they could even have programs that 84 1 could tell if the files had been erased and look to 2 see what files had been erased, and that was 3 subsequently done by an officer from the Washington 4 County Sheriff's Office. 5 And the files that Randal Schwartz 6 had at Intel that had been saved on backup tapes 7 were also examined. And when they looked at those 8 backup tapes at Intel, they didn't find any 9 information that had been taken from the SSD files 10 that were sensitive. They didn't find it on his 11 Brillig files. Didn't find it on any of the other 12 files at Intel. 13 And when they looked through the 14 files in Randal Schwartz's house that were on his 15 computers, after carefully going through everything 16 and making sure that even the erased files were 17 looked at, what did they find? They found nothing. 18 The reason they found nothing is 19 because there was nothing there to find. Randal 20 Schwartz had not copied anything to bring home. 21 And the reason -- and had no intention of doing so. 22 He did not intend -- he did not run this Crack 23 program on the SSD password file intending to steal 24 anything. He did it because there was a problem 25 there to be solved. He did it because he was 85 1 running his valid password on Brillig when he 2 cracked the passwords there and he took the next 3 steps to act on that intense curiosity that he had, 4 believing that if he could solve this problem, if 5 he could figure out what was the problem with the 6 security here and bring it to the proper attention, 7 he would accomplish several things. He could help 8 Intel. He could get some brownie points for 9 himself and allow himself to continue to function 10 in the most effective, efficient way possible by 11 allowing him the quickest access to the Internet 12 and to access his e-mail from the outside. 13 This may not have been good 14 judgment, may not have been the best way to do 15 things, and it certainly may have been grounds for 16 Intel to fire him, but it doesn't make him guilty 17 of three felonies, because his purpose in doing 18 this was not to steal anything. He didn't have -- 19 MR. TINTERA: Objection. He's 20 arguing. 21 THE COURT: Sustained. 22 MR. SUSSMAN: The evidence is going 23 to show that he had no intent to commit theft. The 24 evidence will show that Randal Schwartz believed 25 that each step of what he did was done either 86 1 within the authorization that he had been working 2 on in the past or the last count that it was done 3 without any intent to commit theft and it was done 4 for innocent purposes. 5 When you've heard all the evidence, 6 we'll ask you to consider it carefully and return a 7 verdict of not guilty. 8 Thank you. 9 THE COURT: Thank you, both counsel. 10 We're going to recess until tomorrow 11 morning, ladies and gentlemen. We'll start at 12 9:30. Leave your notes in the jury room. Don't 13 talk about the case. Avoid reading any articles or 14 watching any programs on this or similar cases in 15 the media. 16 Come back -- Leave your notes. 17 We'll take those and give them back to you tomorrow 18 morning. Come back a little before 9:30. Instead 19 of checking in downstairs, tomorrow you come in in 20 the -- come up to the jury room and when you are 21 all there, somebody push the button and we'll come 22 in and take roll. So we'd like to start about 23 9:30. 24 Any questions? Tomorrow morning at 25 9:30. Thank you. 87 1 (Whereupon, the following 2 proceedings were held in 3 open court, out of the 4 presence of the jury:) 5 THE COURT: I'd like to borrow that 6 videotape and watch it over this evening. I'd like 7 to see counsel at 9:15 and talk about that and the 8 witness. 9 Anything else? 10 MR. TINTERA: No, Your Honor. 11 THE COURT: 9:15. Thank you. 12 (Evening recess.) 13