Closing statement by Marc. W. Sussman, Representing Randal L. Schwartz July 25, 1995 ------------- MR. SUSSMAN: Thank you, Your Honor. Good morning. Almost about two weeks ago when I first had the chance to talk with you in opening statement, I recall, I think I mentioned to you that the basic facts about what Randal Schwartz did, his conduct, the specific things that he did really weren't in dispute. The specific things about running -- about setting up certain programs, about running a Crack program, like on the Brillig and SSD password files, those weren't in dispute. But the meaning of those facts is what -- why those things happened, what the motivation was, what his purpose was. Those were the key things in this case. Now, in other words, if you recall, it was his knowledge and intent, his purpose in doing these things. It's not just -- the case was about not just a question of what did Randal Schwartz do, but why did he do it? Was it as simple as the kind of black and white portrayal of the reasons given to you by the State? Or was it for other -- was there a more complex mixture of reasons and factors that entered into the thinking process that went through -- that he went through that was behind the actions that have been described to you? Seems to me that what this case comes down to, to a great extent, we have what we have been arguing about and fighting about is whether or not what Randal Schwartz did was a firing offense, whether he did something, whether acknowledging at some point, whether there were things that he did in a way that Intel felt was inappropriate, violated the way they wanted things done, whether it was entirely appropriate and justified to say, "We're not going to have you doing this here. We're not going to have you work anymore," and whether -- so whether there was a firing offense or whether we're talking about felony offenses, and that again comes back to what was going on in here? What was the purpose? What was this man trying to do and why? That's the key. That's the key. Now, Mr. Tintera went through the charges with you and I think it's again critical to repeat that so that we -- because when we go through this, you have to recall that the State has the obligation to prove to you each and every element of those charges, each of those counts beyond a reasonable doubt so that when we say -- when the State charges in Count 1 that on November -- between November 1st, 1992 and 1993, he knowingly altered a computer and computer network -- a computer, excuse me, or computer network consisting of Mink and Brillig, and that he did this knowing that he was without authorization, they must prove to you beyond a reasonable doubt that he knowingly altered it, that it was a computer or computer network, and again the key in this count is that when this occurred, he was -- he knew that he was without authorization and knowledge in the law, just like intent, has some special definition that the Judge will instruct you about. It talks about an awareness of certain conditions or facts to be in a certain way. And so in judging and evaluating what is knowledge, what Mr. Schwartz's knowledge was, the issue is not going to be as Mr. Tintera suggested. Did Intel have a policy which said you can't do a certain thing? It is given the way things happened at Intel, given the mixture of signals and conflicting approaches to the policy that either was followed or was not followed or was sometimes as followed in the breach, on or during the breach in the practice, what was the understanding that Mr. Schwartz had about the policy and how did he understand the discussions that occurred with Seth Bradley, with Dirk Brandewie and Mark Morrissey about the specific issues involving the gate program in particular, because that's where the knowledge goes to as far as Count 1. And that's something that I want to come back and dwell on a little more later on. That's one of the keys there. In the same -- similarly, in Counts 2 and 3, I'm going to lump these together because essentially the elements are the same. The only difference is that in Count 2 and 3 what the State has to do, what they are alleging that's different is that the access of the computers, the use of the computers, Brillig, and of the SSD computers was done for the purposes of committing and with the intent to commit two separate thefts; the theft that copying and running Crack on the password file was, in fact, a theft. It was done for the intent of stealing something, and also that there was an intent in the other count to steal individual passwords. That was the purpose. As far as these counts go, intent, "intent" with its special definition, meaning in the law becomes the critical focal point in terms of determining whether or not the State has proved this charge beyond a reasonable doubt. In Counts 2 and 3, as Mr. Schwartz acknowledged to you when he was on the witness stand, he's not saying he didn't use the machine, he didn't have access to it or use Brillig, although on Brillig, the evidence is clear that he had an account at the time and that he had no reason not to believe that he was -- that he was authorized to use that. But the key thing -- and he looked at the password file there and then copied, but that was the step to the key thing as far as going to the SSD password file. And the intent there is whether he had under the law a conscious objective, essentially a deliberate purpose to engage in certain conduct or to achieve a certain result. And again, this is where the thought processes that Randal Schwartz went through when these events occurred become critical to the determination of whether the State has proved this beyond a reasonable doubt. Again, this is why in evaluating these considerations, so much of the other evidence that we have brought into the case and presented to you which sometimes sort of may seem like how does this all fit in, have their place in this case. We have given you -- through the course of the last couple weeks, you've heard a lot of evidence about Mr. Schwartz's background, his history, how he's done in other jobs, the way he's approached things, how he learned to approach the kinds of jobs he's done. But not just Mr. Schwartz. What's this industry like? How do people like Randal Schwartz, how do people who are in the position of that Mr. Schwartz has occupied, approach solving problems, approach getting the work done? The critical, creative work, that is what makes companies like Intel successful and that was -- we presented that to you so that you will understand the context and how things operated and the thought processes that Mr. Schwartz was going through. We presented you with information, some of which seemed very technical, about networks and the Internet and security, particularly how these -- this door and the gate programs were set up in terms of the technical nature and what the security features were. The State would suggest to you that was a red herring, but it had a very important purpose here, again, because what we wanted you to see and what we want to show was what were the thought processes that Mr. Schwartz was going through in doing these things? What was he responding to in terms of the state of the policies, the state of the local practices at Intel? Exactly what was he told by Seth Bradley and Mark Morrissey and Dirk Brandewie and how did he respond to those things? Those are the things that set the context for understanding these things. Now, in that regard, the factors that we presented to you and the information that you have about how do independent contractors function at Intel and generally how is Intel structured? What was the structure at SSD and IWARP at the time? What was the -- what was this kind of structure that was made up of many different kinds of policies where there were different approaches to practices and policies? These things all set the context and set the place to understand how and why Randal Schwartz was doing the things that he did. Similarly, the State relies very heavily in proving and establishing its case on the mental state, Mr. Schwartz's statements both to the police and his comment upon his testimony to you. The context for these things becomes important to you, too, and we'll ask you to consider that, along with the evidence about Mr. Schwartz's character and how given that and the people who have known him and the people who respect him and his work see that in terms of seeing evaluating whether or not this person is coming to you and is trying to explain and present why did this happen and what was I really trying to do, whether this is somebody who is really trying to put something over on you and Intel and everybody else, as the State would suggest, or whether this was somebody who is being really out front, I mean somebody who is being -- the word is not coming to mind, but just being -- is without guile, not trying to be sneaky or hide anything from you. Now, we talked a little bit about reasonable doubt, and let me dwell on this for a moment before I move on to talk with you about why I believe so strongly, why we submit to you that the facts in this case -- that when you look at the evidence there and you evaluate these things will show you that Randal Schwartz was not acting with any kind of criminal purpose. That whatever he did, however inappropriate you might have thought his manner of doing it was, however you may have thought he stepped over the line, that these were things that may have been -- may have made Intel justified in taking personnel action against him, but doesn't make him a criminal because he didn't do this with a criminal purpose, with a criminal state of mind. Beyond a reasonable doubt. It means that when you decide whether or not Randal Schwartz had the knowledge that what he was doing was not authorized, that when Randal Schwartz was cracking the passwords and looking on the password files that he looked at, that whether he was doing it for the innocent purposes that he suggested or that it was for the more sinister purposes that the State is saying now or for in truth it was really what compelled the investigation in this case in the first place, the fear that he had was getting into the password, the files of the people in SSD whose passwords had been cracked and that these are not the sinister motives and purposes that really existed. Now, in evaluating that -- remember and the instruction -- and we talked about, and I believe the Judge will instruct you that you have to be as certain about your decision in this case as you would be in the most important affairs of your everyday life. You have to give it a great deal of consideration. And when the State asks you to return to verdict of guilty, that you don't have the -- what's the kind of reasonable doubt that would prevent you from doing something that's real important to you. Perhaps one of the best examples I can give you, although it's not quite the same as judging somebody in a criminal case, but think about one of those important decisions, and I think for most of us, it may be buying a house or something like that. Doesn't matter whether it's the first house where you spend maybe 30,000 or 50- or $60,000, or if it's something that you spend a half million dollars for, if we should ever be so lucky. Put yourself in that position and let's say you approached the sale of this house and you're coming time for closing and this is a house that you have found and you really like and this is what you wanted and this is the place you want to live. And you're getting ready to close the house and the title company told you somebody just popped up -- somebody said that he did some work on this house and he has a lien on this place, a lien that says it's an interest you have to pay me for doing construction work on this place before we can clear the title and you can have it. Now, the title company may tell you, "We don't know where this came from, we don't ***know it's any good, the person who is selling this place tells us that he thinks it doesn't meet the requirements for a lien and it may not be a valid one, but we can't guaranteed it so we will not give you clear title on the place." And they may tell you that, "We're pretty certain that the way this thing was done that this person that come in with this lien didn't file it in a timely way, may not have filled the papers out just right," but he's got a lien on the house that maybe for worth $35,000 and you wanted to buy the house for 65. Now, before you decide to go ahead with the purchase in that case, knowing that you may not have clear title, how certain would you want to be that this lien is no good? In the everyday life, we see those things happen, you want to be sure. You don't want to get in the place and find somebody else coming in that has more claim to the title than you do. You want to be certain because the law requires that you -- in judgment of somebody in a criminal case and deciding that somebody is guilty of a crime, you must be certain beyond a reasonable doubt and at least as certain that you would be in that kind of situation. I would like to talk to you about some of the highlights of the evidence in the case about why we submit to you that the State has not proved each of these elements to you beyond a reasonable doubt. Excuse me. You get nervous and I have to say that it's -- you go through a case like this and you spend two weeks trying this thing, and we have tried to present as much evidence as we can to show you what was happening and why Randal Schwartz was not acting criminally. And we're at this point where I have these sort of imagine of myself missing something or not saying the right thing or doing something that would somehow leave out the critical points that would help persuade you, that would show you the facts that show you why there is reasonable doubt here. Please bear with me if I kind of ramble a little bit or say a couple things. This is very important to us. I talked with you about some ways -- some evidence that we brought in to show you the context. In Count 1, again the key point is was he authorized? What did he know? Did he know he was not authorized to do when Randal Schwartz put the programs -- first the door programs and then the gate programs that we're talking about here? Now, the State made it sound very simple and very clear that Randal Schwartz was told over and over again that there is a clear, well-defined, absolute inviolate policy that there will be no inbound telnetting or inbound communication from outside Intel to inside Intel, and he was told that several times by several different people and therefore he knew. But if you go back and carefully scrutinize the evidence and look a little more closely on that, that doesn't hold up for these reasons: First of all, let's go back to the earlier situation. When Randal Schwartz started out in his earlier years working at Intel, he was at the IWARP section there, which was sort of an umbrella with SSD, was -- and hadn't yet been brought in in those days. And you heard the evidence that this was sort of like a startup company. This was a group of very energetic, creative, vital people working on some very significant kinds of things. And you had this link going on with Carnegie Mellon, the university in Pittsburgh, where it was essential for them to be able to communicate with the people at Carnegie Mellon back and forth, and also for the people who were working there to get over to Carnegie Mellon sometimes to be able to communicate back. Now, we heard from one of the witnesses that there was a policy in place for -- maybe it was, perhaps, seen as a procedure or guidelines that you weren't supposed to have an inbound connection. But we also know that a decision was made first not by Randal Schwartz, but was approved, authorized by a manager, a regular Intel manager to say, "We need to get this stuff done. Set it up." Randal set up the connection through this Cisco routers we were talking about to allow the people working off-site, the engineers working out in Pittsburgh, wherever, to have an inbound connection to IWARP. And you heard from Jim Reinders, one of the engineers working there at the time, how critical it was in order to be able to do his job when he was over there to be able to communicate back. What did they allow him to do? Well, what the procedure, what the program that Randal set up was, was it allowed Jim Reinders and people like him to get on a computer in Pittsburgh and look at their machines just as though they were sitting at their desk inside Intel and do the same work that they could do if they were there. Now, that was the inbound communication that was set up, and at that time it was set up in a way that it was allowing access to the machines that were at Intel that had really sensitive product information. Now, Randal didn't do that unilaterally, but there was a local practice that was driven by the necessity to get the job done that have led to a decision to make this -- to set this thing up so it worked. Now, Seth Bradley, who was then -- comes along and says, "Look, we have a problem here, because the way this is set up, it's not secure enough. This is a problem. We do have a policy that says we can't do this," but he did not say that "You can't do this." His testimony was not that this is absolutely forbidden. What he did was, he said, "We can't allow this because we have got -- we can't have the connection coming into the machines that have product information." And what he did after saying -- well, yeah, said, "We can't do it. Change that." He then ready authorized a different setup that still allowed the inbound communication to a different set of machines that didn't immediately access the other computers that had the vital product information. This is very important to remember in terms of later on what impression did this make on Randal? What was the precedent that was set? What did it show about how things would be done and could be done? We have some global policies that are guidelines and we have had to change them to meet the needs of getting our work done here. And then policy came along and forced them to make some modification and change that, but we did it in a way that protected the vital product information and that was the way that continued. Rich Cower in rebuttal did testify that prior to 1993, there were inbound connections allowed. The problem wasn't so much that we don't want the inbound connection, but one of the concerns was how do you make these things secure? Also acknowledged that the security problems exist by the outbound connections just as well, but you make a business judgment that you have to do this in order to do business. Now, later on, however, Randal Schwartz is no longer at SSD, his contract there has -- with the SSD IWARP division ended, but he was continuing to work over with -- the contract had started up with Bob Wilcox at the Hawthorn Farm section. Now, here is where our -- some of the information about independent contractors becomes important in two ways and how it becomes important for understanding the thought processes. First, as an independent contractor, it meant that Randal Schwartz was not a full-time employee, so what that meant was while he was doing the Systems Administrator and Network Administrator work for Bob Wilcox, and later the work that involved the Domain Name Server business for not just Wilcox but the fellow in California who was running that program, that while he had these contracts, he also had outside jobs to do. This was essential for him to be an independent contractor, one of the things that was essential. So it meant doing some work where he was teaching classes in California. It may have involved work in Chicago, but it was work that took him off-site. Now, he's still a contractor for Intel. He's worked for them for years. This is a person whose testimony did reflect, I think, a commitment to this company in doing things and doing it with a pride and commitment to doing his job well. Now, one of the things that Bob Wilcox -- one of the documents that he signed in his authorization forms in State's Exhibit 14 was a sponsor statement here that there were going to be times where Randal Schwartz had to have access to Intel property at odd hours because -- the reason is because there will be times when at off hours, you have to respond to an emergency. Things come up. Remember, John Kent testified that being a Systems Administrator, doing the work like that isn't something that just made up our job. You could have 20 things happening and only have time to do 10. You could have -- when Randal Schwartz went through all of those resources and talked about the things that came up, read about invoice after invoice, talked about fires, putting out fire walls, the person who is doing that kind of work is constantly responding to crises, crises like when Lou Poehlitz changed the configuration for e-mail over at SSD and people at IWARP suddenly stopped getting their mail and went nuts. It was like for days, "We can't get our e-mail, we can't get our work done. Fix it." This is the kind of stuff that he had to respond to. So we see here it required some access at odd hours when he was in town. What do you do if you care about your job and you're committed to what you're doing if you are teaching a class in California? What do you do if you're teaching a class someplace else? Do you let somebody else handle it? You could. That's not who Randal Schwartz is. He wanted to be able to have access to his Intel e-mail, not just his e-mail from his publisher out in the Internet there, but when he was away so he could get access to his Intel e-mail inside. Why? As he told everybody, so he could do his job, so he could respond to the messages and the crises that came up. So he could be more efficient and more effective at doing the work that he contracted to do, which he felt committed to doing. That ethic of you do what you need to do to get your job done is something that he learned from his first days at Tektronix with Lyle Settle. It is an ethic that is not peculiar to Randal Schwartz. You heard it from Jim Reinders, who was talking about you do what you need to do to get done. John Kent even talked about that when he was responding to the problems that they felt were created within their investigation when he started trying to track down the -- what the IP address at O'Reilly was. Didn't know, just had an IP address, didn't know, altered the computer, thereby having it make the change, did that without anybody asking, that wasn't an issue. It was a crisis that he thought was there that he had to respond to and it was something that he did. He acknowledged that you do things to get the job done when you have to respond to a problem. That's the kind of ethic that -- and the kind of drive that -- which so many -- so many people believed and operated on the theory that this is what we should be doing to make this -- the jobs work, to make these companies we work for successful. So what happened? Randal Schwartz is now working as a contractor with Bob Wilcox and he's out doing his work as an independent contractor and he needs to have access inside of Intel as well. Now, Intel did have this defender call-back system. You could call the telephone on the modem and call in and communicate that way and that was authorized and it was set up and Randal had an account on that and he never used it. And why? That doesn't seem right? But remember there was some discussion and there is a document -- one of the documents here showing the notes for his -- Exhibit 104, which is showing the notes for the ID numbers for the defender system showed the telephone numbers and the only access was from these telephone numbers. So if he was doing work in California, he was doing work someplace else, he couldn't use this system to get access to your mail and stuff inside. So if you want to do it and you want to get the job done, you find a different way to do it to make it work. What did he do? Fell back and -- what did he do at IWARP? He set up the door program. Why do we talk so much about the security of the door program? The door program, the one you start out, you have to have a password, first you have to know the IP address, then the right port number, then you get a blank screen and get passwords and you have to guess all of that stuff. The significance of that? Because these were a series of safety security measures that were built into the program the way it was written. Why is that important? Well, it's because in looking back to what was done at IWARP, you had the same kind of inbound connection. You needed to make sure there were all kinds of security precautions and they are to protect Intel from the outside intruder. This is the program that Dirk Brandewie saw and Mark Morrissey saw and came to talk about. They said -- there was mixed testimony, and please, I'll ask you to rely on your notes and your recollection of this, but on direct examination, Dirk Brandewie said, "I told him this is against policy, you can't do this." On further questioning on cross-examination, Dirk Brandewie said -- I can't tell you the exact words. I can't tell you exactly what was said, but he acknowledged that the conversation he may have -- that he said that this is not -- this could very well not be secure as it's written, or the problem is it's not secure enough. This is not acceptable as it is written, as it's constructed, as the program is written. Mark Morrissey, also on cross-examination, acknowledged and indicated that the program, he said -- I'm looking at my notes. The quote I had was it was not acceptable as constructed. On direct examination by the State, Mr. Morrissey was asked if Morrissey told Randal Schwartz that what he was doing violated Intel policy, and Mr. Morrissey's answer was it violated Intel security procedures. Security procedures. That was his exact response. As I said, on cross, he said it wasn't acceptable as constructed. Why isn't that significant? ***Didn't, he had. He have. Why is that significant? Well, it's significant in this respect: First of all, there was a message sent that this gate program isn't secure enough because it allows -- if somebody gets through, it allows them access to any machines in Intel. Now, as we went to great length to show you, that was a very unlikely event. Like an onion, there was layers upon layers of security there. In the event you got through all the layers, yet you got to a machine that you could, in theory, if you got to another password, get you to a machine anywhere inside of Intel with product information. So there was a message, this is not -- the message that was also conveyed was, as constructed, this is not secure enough because it opens up the entire system if you get through the security measures that are there. We spent a lot of time talking about the literal-mindedness of Mr. Schwartz, not only Mr. Schwartz, but people who are programmers, Systems Administrators, and we had to spend some time talking about it and it was demonstrated to you by the way a lot of the witnesses were responding to questions. I think of attorneys sometimes -- as we think of attorneys sometimes as being splitting hairs and just sort of being very precise, and there were frequently times that we would ask questions that our witnesses would kind of pick apart because it wasn't precisely the way that they would interpret the way computer systems are set up, where if we said "program" and we were talking about a computer, we would get corrected on these things. Well, the reason why that's significant is the thought process that's here. Because in response, when we have this response and say this program is not secure enough, it's not acceptable as it's constructed, then Randal Schwartz looked at this and said, "Okay, what do I need to do to construct this to make it acceptable? What do I need to do to construct this to satisfy the security concerns?" Well, first they went to the gate, to Door No. 2, and Door No. 2 did have the limitation of saying no, you could not have anything inbound. But it was after that that remember, he started doing more of the contract work that took him out of the company again. And so looking back upon his experience and looking back upon what happened in the experience at SSD at IWARP, he said, "Well, what did we do there? How do we respond to the problem?" What Seth Bradley said was, the policy is we can't do this. But then he went ahead and authorized me to set it up in a way that allowed it to come into some specific machines that didn't have access to the important product information. And so from that, some more tinkering, some changes, a new program, adjustments, not just taking the same program and putting it someplace else, but a new program was written that changed the configuration, that did something different. And out of that was borne what we are -- and Andy Johnson-Laird said was Gate X, and said now, if you can find your way into the system through the layers of security and through the IP address and so forth, you just get into a single -- this single machine and it was a single machine that Mr. Schwartz pointed out that contained no -- what he saw as no product information. And so it was an attempt to construct this in a way that was consistent with the practice that he had engaged in sometime previously when this problem came up at IWARP. Now, this is not a question of should he have known? Is this reasonable? We're looking at a different perspective here. We're talking about a community which thinking not in terms of how is criminal law set up? If there is a general prohibition, when we think about general prohibition, we think about all the ways we could violate it and stay within that and don't look for something that gets you out of it. You look at "I have a problem here," because this is the problem, looking at it saying, "I have a problem, here is the limitations that are set. Now, what allows me to do what we need to do to get the work done, to solve the problem that impedes getting the work done and doing what we need to do this?" It's that literal-mindedness that we spent time talking about that is important for understanding the mental state and the thought processes that went behind this. Now, when that Gate X program -- that was not the one that Dirk Brandewie found running later on. Randal Schwartz made an additional adjustment, fine-tuning, like he would fine-tune the other programs that we were talking about, the tools of his trade. That was one that was found and that one had combined two different kinds of security features, again to adjust the needs of getting work done, allowing him when he was outside to do only those things that he could do sitting at his own desk inside Intel. And he built in the additional procedure of these things that allowed him to monitor whoever logged in to make sure it was secure. These are the actions of somebody who was trying to construct a program, trying to construct a vehicle for performing what he saw his responsibilities under his contract for doing better at what he was there to do. And one of the ways that it was important was being able to get in touch with the outside, the mail on the Internet, because Randal Schwartz had developed a practice of following whatever on the Internet using his address at O'Reilly to get in touch with other people around the community who were expert or who had ideas and shared things and they would do favors for each other. And so if there was a problem inside of Intel, he could get back out there and say, "I have this problem, anybody have some ideas?" And you exchange things. It was this exchange of favors, this exchange of information that not only made him more effective and made him so good at what he did, but it was also one of the things that comes into play later in this case when we look at the processes that led to the running of the crack programs on Brillig and on the SSD password file. It was that -- it was consistent with that kind of behavior and that kind of habit. So what the State said to you that we proved that in three different ways he knew he wasn't authorized to run this gate program, the first way was because of what Seth Bradley told him years ago at IWARP. We submit to you that there was -- the evidence there about what actually happened there contradicts that. It does not establish that. When Dirk Brandewie -- the second time they say this was proven is when Dirk Brandewie and Mark Morrissey came to him and said, "You can't do it this way." We have the -- if not contradictory, at least the statements that could be taken different ways. And I recall that there was one other thing that Dirk Brandewie said about that that was very significant. If you recall, Dirk Brandewie said when he first came to Randal Schwartz and told him, "You've got this program, this is not acceptable the way it is," this is the door program that he saw there, he said Randal Schwartz was surprised. He didn't say, "Oops, I got caught." He said Randal Schwartz was surprised by this. Now, that is a very telling comment because it would -- what it suggests was that this was the response of somebody who believed that what he was doing was an appropriate program. It belies the comment and the testimony of Detective Lazenby about Randal Schwartz's statements about this program when he testified here that Randal Schwartz said he was caught running the door program, because it's just not -- it's not consistent both with Randal Schwartz's recollection, not so much the specifics of what he said, but this is not what he would say. And it's contradicted by Dirk Brandewie's own testimony about Randal Schwartz's recollection at the time. Perhaps to digress and talk about those statements, because Randal Schwartz's statements are the cornerstone of the theory of the State's case. They want you to accept face value as reported by the detectives who came in and testified as the most accurate -- as accurate descriptions of what was said, what was intended, what was meant and what was -- and what Randal Schwartz was really trying to communicate. Consider, we talk about the context of things. What was the context that those statements were given? Compare that context with to the testimony that you've heard, which you can evaluate on your own. Randal Schwartz gave statements to the police when he was surprised by the knock on his door on November 1st in the evening by several detectives and a number of deputy sheriffs who came to his house, "We have a search warrant, we're coming in." Now here is a person who has had no experience with this before. Here is a person who -- think about for a second, use common sense, you can do that in evaluating this, you think about how normal -- most average people respond to getting stopped -- just by getting stopped by a police officer for speeding or a moving violation and what does on there, and then consider the context that Randal Schwartz was in where all of a sudden you have your house full of police telling you that, "We have a search warrant here to seize your -- that -- the warrant that allows us to seize your computers, to seize your data, to seize this information, and we're looking for evidence of a crime." And he's read his rights that -- its' rights that -- where you see are read to people who are supposed to be criminals. And then the first conversation that he has with Detective Lazenby is, "Oh, you're not in custody, but you can be charged with misdemeanors or felonies in the state and even a federal offense." Then the conversation goes from there. What Randal Schwartz told you is, "I cannot tell you that I remember the details of each of the conversations." So he didn't get up here and try to tell you, "No, I didn't say this specifically. I didn't say that specifically." What he tried to communicate to you in his testimony was there were some things that didn't sound right, that don't seem like me, that don't fit. I didn't say the word 'caught.' That's not something that I would use, 'caught.'" Didn't fight with what was going on. He was trying to communicate his reasons for wanting to have access to the SSD computers. He was trying to explain, "I really wanted to have an ability to continue getting access to the Internet so that I could read my Intel e-mail." And that came up in the context after the first thing he told the police, which was, "Well, I was -- my main motivation was trying to test the security here." But in evaluating these statements, also consider this. The Judge is going to instruct you to view these statements with caution for some of the reasons outlined by the State. The reason you have to think about the context, did he express what he intended or the emotions or circumstances such that he might not have expressed what he intended or said things in a way that came out incorrectly. You've seen just in the stress of the trial here witnesses misspeaking, witnesses saying, "Well, if I testify this way a different time, maybe I didn't express myself correctly." Detective Lazenby said -- he testified here that he took no notes of his conversations with -- I'm sorry, that he took notes of his conversation with Randal Schwartz, that's why he could write the quotes down, although "caught" was not in quotes in his report. But a month earlier, he testified that he took no notes. Now, was he mistaken? Was he confused? Had he misinterpreted the question? Perhaps. That's the kind of thing that can happen. What is so illustrative of that kind of situation with Mr. Schwartz's statement is the last statement that Detective Lilley talked about. Detective Lilley was certain Randal told him that he had been suspended at Tektronix for a security incident where he was using his skills to get into -- to kind of -- as I would -- as they would put it, break into some computers or break into passwords or something. I'm blanking on the details. The question of that was he was certain that Randal Schwartz said he was suspended. Now, the curious things about it is this, we know not just from Randal Schwartz's testimony but from Lyle Settle, who was the person he was working for, he was not suspended. That didn't happen. Now, the incident happened, but he was not suspended. What does that tell us then about these statements? Either Randal Schwartz did not tell Detective Lilley that, Detective Lilley may have misinterpreted what was said or misunderstood it, but Detective Lilley was certain that he had said it. But maybe Randal Schwartz said something like, "Maybe I was suspended," and if he did, he was telling him something that didn't happen. That demonstrably didn't happen. Why would he do that? Didn't make sense to say it didn't happen? It's the kind of thing that happens under the stress of a moment like that where you speculate about what -- well, maybe -- "Well, the officer has told me I can be prosecuted for this. May very well be this is a technical violation of the law." Please consider when you -- the context of how this happened and how that can affect the statements and a person's ability to communicate under those circumstances. I ask you to again consider what you have seen in terms of Randal Schwartz's testimony. The State has made a point of trying to suggest to you that you really shouldn't rely on that because he sat up here on the witness stand and then talked with you on direct examination, but on cross-examination, all he did was mostly -- confronted with leading questions, he talked mainly to Mr. Tintera. Now, I'll trust your observations, but I think most of the witnesses tended to respond in the same way. Some of the State's witnesses were notable, also. Dirk Brandewie, who wasn't necessarily the most articulate guy, but expressed himself well. Made sure he turned to talk with you on direct examination. He didn't do that on cross-examination. John Kent, the guy's presentation that was worked out and on direct examination made sure he turned and talked to you. Wasn't quite doing that on cross-examination. This -- does it mean that these folks are lying? Means there is a difference in the way people respond under these circumstances and under the stress of when you are feeling like you're being interrogated by somebody who is not there to ask you what happened, but who is there to make you feel like maybe this person is trying to trick me into saying something I don't want to say or is not accurate. My final thought for you on the issue of the door and gate programs is that the reason we spent the time that we did and went through the steps with Mr. Schwartz, with Andy Johnson-Laird, was to show you that the way things -- also to show you the way things are portrayed by some of the Intel witnesses when they said categorically in the broad statements, "These things not only violate policy, but it just did it in a way that left us wide open and vulnerable," was not accurate. That there were layers of security and steps taken to protect that and nobody that contradicted, for instance, Mr. Johnson-Laird's testimony. That when you look at that, at the first program that Randal Schwartz constructed, that if you got through it all could open up the access to everything. That it concerted -- that running a test program, a concerted effort by a computer robot-like program on a system that was secured at Reed College doing that kind of challenging took such a long time that it had no practical value, it would have had no practical value against the program that was set up. That it was actually far more secure than the Intel witnesses would suggest to you. Why is that important? Because it shows that we're not just talking about how did Randal Schwartz think or what did he think was going on, but is something that was a critical issue in evaluating not only Count 1 -- MR. TINTERA: I object to counsel interjecting -- sorry to interrupt -- but his own personal opinions into the argument. THE COURT: Sustained. MR. SUSSMAN: I'm sorry. Unfortunate choice of words. But it is a significant factor that the evidence produced that would indicate to you what is happening in this case beyond just what Randal Schwartz thought when he was doing this thing. Sort of what was really driving this case along. Think back to how this whole incident blew up. What occurred there? Mark Morrissey checking about the file for his system, decides to look at the computer Snoopy to see what's happening, to see how it's working, to see if it's functioning well, and also to see if Randal Schwartz is running any programs on it because he knows that Randal Schwartz likes to test the newest equipment and likes to use something that requires a lot of power, and he finds this Crack program going on. Then sees that it's running very clearly against the password file from SSD, finds that a number of passwords have been broken. They find, upon looking at it further, that these passwords included the passwords of Ed Masi, who came in and testified, and this other fellow, Justin Rattner, who was almost as high up, the guy who is the chief engineer and architect of this whole thing. These are guys whose files are supposed to be protected by secure passwords, passwords that would avoid exposing the company to the danger of somebody breaking in from the outside by having secure passwords, and they suddenly find that this guy over here, who is not in SSD now, has worked the passwords. And what happened was, and think back and follow what happened, there was -- I will characterize it as perhaps a panic here. We don't know what Randal Schwartz is up to. We know he's running the Crack program and also ran the gate program running on Brillig. Now, what are they thinking? We don't know what's happened, but the fear is and the conclusion they've come to is that Randal Schwartz may be -- must have been going in to try to get to those files to get this very important product information, the stuff that would be in Ed Masi's file, the chief architect's files. The only way to find out is to do a couple things. One, let's freeze -- they froze his files, backed everything up so they could see exactly what he has on the machines at Intel. And they copied all the files, saw exactly what he had on his records at the Brillig machine. And then the next thing they did, was, "We want to see what's on his laptop," the one they bring in and out. They can receive everything they have on the workstation, the machines he's working on inside of Intel, but we're worried he's taking the stuff out and -- but we can't do it ourselves. The only way we can find out if this guy is really stealing the king's gold, the real king's gold, is to call the police because we can't -- we're afraid if we ask him he'll say, "No, you can't look at my computer." He was certainly more cooperative than that when the police showed up, according to their testimony, so there was a meeting to talk about this. And what was interesting and if you will recall, there was testimony that the people on the line, the folks who were working at the colleague level say, "Let's ask him. What is he up to? What's going on here?" But a management person came in and said, "No, we're going to the police." And so we now have this prosecution starting and we have it because we need to get the police here to grab the computer, look at the stuff, because we are, at Intel, certain that Randal Schwartz must have been going after this information in the files there. So they seize his computers and they size all the stuff that was related to that. They didn't leave the -- they didn't just seize the computer and leave thousands of disks behind that could have been his. They saw what was the brother's and didn't have anything to do with the stuff that Randal Schwartz had, and they took all of his stuff and they looked at it and looked at it carefully. Alan Watson went through that to make a mirror image so you could see what was there at a point that Randal had opportunity to know this was coming. There was no opportunity to hide what may have been stored there. They got the computer programs that would help them not only make the mirror image, but search through everything with the keywords that Intel provided to see if there was sensitive information. They were able to look to see if there were ways of looking for erased files, and that search that was done thoroughly by Alan Watson and reviewed by Mark Morrissey, revealed nothing. It revealed nothing on those computers there that would -- there and what -- and there was no evidence that he had taken the thing and there was nothing in the files at Intel that showed that he had taken -- that he had been copying the materials from the files where the really critical information was being stored. Now, the State may come back and argue later on that this is beside the point, this is irrelevant, this is not the charge, but the interesting thing is that when this case started out, that was the point of it. That was the theory. But when they found nothing, when all that was left was that Randal Schwartz had said, "Look, yeah, I was using the password, I looked at the password files, I was hoping that if I could do pulling off a coup and say, 'Look, you guys have problems here and I'm going to ride in on a white horse and fix this up and show you what the problem is with the security,' that may be somebody will -- I can ask for a favor back and I can get the access to the SSD machines," which were the fastest ones which would allow access to the Internet. For ***me there is one point that I remembered about Count No. 1. The reason when Randal Schwartz was told by Dirk Brandewie, "You can't do this anymore. If you want it, get a waiver, a security, to go back to be able to run this program on Mink," what he said at the time was real interesting, was that -- something to the effect, "If it was a little more secure it would have been okay," in addition to everything else he said. Again suggesting to us that perhaps that program might have been allowed. Just didn't like the way was built. But Randal Schwartz said to him, "Look, if I can't do it here, if I can't run this thing on Mink, just cancel the account." It was not that his account was taken away from him, as one of the earlier Intel witnesses testified. It was, "Cancel the account. I don't need it if I can't use it here," because Mink was the machine that was under Dirk Brandewie's control in this area, in this pod, in this section. And the reason he ultimately went over to the Brillig machine where he had the valid account was it was an SSD machine, it was a place where he knew from his prior experience that we have done this before and I set it up in a way that he could go into a machine and get that. Sorry for that digression. Thank you for understanding. A word on policy. A lot of talk about policy. Again, it's important to understand the context and state of mind in two ways. Policy was not as clear and as unequivocal as the State suggests to you. We spent -- the reason we spent a lot of time talking with and asking witnesses about what was the policy on independent contractors having secure control over security, could independent contractors be Systems Administrators, could they have call-in access. You have conflicting responses. Some said yes, they could, some said no, they couldn't. Some people say, "Well, policies were disseminated, but we never distributed the manuals to the independent contractors." Some said they didn't get the same information as other people, was to show you that while, yes, there were policies in place, that the policies were not uniformly understood nor uniformly followed. That policies such as Systems Administrators shouldn't be independent contractors were disregarded when it was necessary to get the job done. That just like the policy on no inbound telnetting was, at least in Randal Schwartz's experience, not followed locally in order to get an important job done. And while Intel may -- while it's entirely appropriate for Intel to say, "We have policies that say we want things done a certain way," it would not, and that's perfectly understandable. It is not understandable and it is not appropriate to come in and use the power of the State to prosecute Randal Schwartz for doing something in a way which then violates -- they say violates policy which -- or sets a policy which were not uniformly followed or were consistently applied within the company. This is not an employment case. We're not talking about saying, "You overstepped the bounds. You're fired." We wouldn't be here. We wouldn't be arguing about that if that was the case. We're arguing about whether it's appropriate to convict this man of a felony for doing that. I wanted to talk now about Counts 2 and 3. And again I want to talk through with you Randal Schwartz's thought process, as you can understand that this was a person that was not acting with any kind of intent to steal anything or to take anything that was strictly for his own purposes. Randal Schwartz was acting in a way that was consistent with a practice that he had in the past of following -- looking at a problem, seeing something new, seeing a new challenge and allowing his curiosity and his determination to find out what was this all about? How did this work? Why do things happen this way? What can I do with this to make my job better and do things better and help a company and see that thought process through? Now, it is true that Randal Schwartz at the time he started running these crack programs was -- did not have the same System Administrator responsibilities that he did when he started working for Bob Wilcox. One of the things that was implicit in what Andy Johnson-Laird talk to you about and I think -- excuse me, I suggest came through to you in Randal Schwartz's testimony was that you may not have the specific title of Systems Administrator over a certain set of products, but that doesn't mean you stop thinking in those terms. Doesn't mean you stop approaching problems or things that come up in that way. So we have a situation that came up, well, as best we can gather, sometime around September of 1993, and Randal was looking on the Internet and noticed that Jim Deeble, who has ***Tekbook, which is an Internet connection which is one of the places that allow him an account that gave him access to the Internet, he was having a problem with security, his passwords were being cracked. ***So what if you do remember? What he said was, "I was curious to see what the nature of the problem was. There was a new version of Crack here that I haven't seen how it works." This is something that -- this was a program that he routinely ran and worked as a Systems Administrator in SSD when he was described by Linda Cline the best Systems Administrator that she worked with. Somebody that she could rely on for getting things done if you had a problem and going to for help and seeing that things worked. He said, "Let me see, let's take a look at this program. Let's see how it works." So he made a copy, he looked at the password file from Tekbook. Remember, he had an account that he could look at the password file. He made a copy of it so that he could work it on the program. He found that there were some problems, there were a bunch of passwords that were bad. So what? Is this just curiosity? No, it didn't stop there. What he did was he sent the message to say, "Look, you've got a problem with security and let me help you out." And again, it's one of these things that "I help you now, later on if I need help, hopefully you'll do the same for me." So he got the stroke, he got the positive reinforcement that this was a job -- this was an action that was well received. Now, was he driven at this point by greed or motivation to start getting -- "How can I start gathering up all kinds of good stuff for myself?" Maybe some of that is there. Part of it is this drive, this curiosity that he had there. So he said, "Where else can I go that I have access to this password file that I can run this program to see if it works?" The next place was from O'Reilly. Curiously, there those passwords were solid. It wasn't until later on that O'Reilly was notified. But the response was, and you'll recall the testimony was that there was some initial -- Tanya Herlick may not have been happy about it, but Randal Schwartz's account was reinstated. He still had an account there and life went on. But there wasn't -- that didn't tell him a lot. So still being curious, he looks at, "Where do I have another account where I have access to I can take a look at this?" And it was Brillig. The fact that John Kent or somebody else overlooked -- that they think there was a mistake in leaving the password on that account is not -- is beside the point. That's a red herring because the issue is what did Randal Schwartz know, what did he think? The standard practice in the industry was if your account is disabled, you know you don't have authority to use it. And he acknowledged that was the case when he logged onto the SSD password file. But here is the interesting thing. Remember about Counts 2 and 3, when we look at the elements of that, authorization, doing this without authorization, that's not an element. That's not something which is an essential part of the proof of Count 2 and Count 3. It may be useful and interesting to you, and in terms of the State's argument trying to suggest that shows Randal Schwartz had a criminal purpose, but the fact that you may say somebody says he wasn't authorized, that's something beside the point in terms of the element of the charge. Please keep that in mind. But as far as Brillig goes, it's very clear that Randal Schwartz came back to the SSD section after all his passwords were disabled when he left in the spring. And he had a new project that Herb Mayer talked to you about, one of the computers that he did the key work on was Brillig. There was discussions which led him to believe that there would be follow-up work to do. It was the kind of project that was complicated and typically required follow-up work. Randal copied the key tools, the programs that he used to make that program work, left them on Brillig, left them on Kandinsky, left them through Brillig on his files so they would be available in anticipation of doing the follow-up work. Those programs that we showed you on the exhibit from the logs that John Kent ran up, those weren't there, the programs weren't necessarily there because they were going to provide secret information that he could use for his own benefit. It was there so that if he was called back he could do the job easier and it was available and he expected that. So the fact that later on he found the password worked on Brillig is -- that's the evidence that he still had the access to that and it was a valid account. So he looked at the password file and he ran the Crack program on it. Now, this is where we fundamentally disagree with what the State suggests to you this whole case is about. And we -- and this is where we ultimately will leave it to you to decide at that point what were the purposes, because Randal Schwartz said that he ran the program and he saw that Ron B password, ***deacon, a very clearly bad password was cracked. And Randal Schwartz at that point, contrary to the State's theory, took a look at that and said, "Look, is this this guy's password, this is an SSD machine. This is a bad password." Now, on one hand you could say this is an opportunity to -- for me to grab passwords from SSD. He didn't need to do that if he was just looking for a password to give him access, but what it did was it peeked his curiosity and not only peeked his curiosity but peeked his instincts as a Systems Administrator which was if this password is so easily crackable and it's bad, I wonder if it is bad and it's exposed the main SSD cluster? But the only way for him to find that out was to log in using Ron B password. He candidly admitted to you on the witness stand that he knew he wasn't authorized to do that. He knew that. "I didn't have an account on that machine." The only way to find out if this password worked was to use it. Was he trying to steal it or steal the passwords? No. He was looking to see if there was a problem here. His curiosity and instincts took over. What did he find? It did log into the main system and he could read the password file. Now, he copied the password file to run it using the Crack program to see how extensive is this problem, and this was for several reasons. Remember, Randal Schwartz testified and told you, "I wasn't sure what I was going to get, but now I've got this information and I got it in a way that I know I really shouldn't have, so if I simply go and say at this point, 'This is what I've done, you have a single password here on Brillig that is cracked,' is anybody going to respond to that or make an issue about that?" Probably not. Some of that is confirmed just in the sense of how John Kent is talking about in terms of how overwhelmed the stuff you get and much better if somebody sees a problem with your system, if they come to you with a solution, to say not just that you have a bad password, but what's the solution here and how extensive a problem is that? And so this is what -- the process that started driving Randal Schwartz's actions. "I've got this information, now what can I do with it? What should I do with this?" He knew that he's not -- clearly, this is not where he should be, but if he is going to be the good guy, the guy wearing the white hat, what he told you was, "I needed to make a complete and thorough report, a report that would show here is the problem, here is how I figured it out, here is the database on which we did it," and so he could come into a solution. Now, in a sense, is this out of the blue? Is this just something he's making up? No, it's not, because this is consistent with how things were handled, for instance, at Tandem when he was doing stuff testing security, albeit part of his job there. But when this April Fools joke came in and he broke through the security that was supposed to be impregnable, you could not get through, after some initial consternation, after people were a little upset, they recognized, "Okay, tell us how this worked, give us a report." This is what was in his mind. This is what drove him, what motivated him to take the next steps. Now, the State is wrong when it tells you that the fact that he went back into the SSD password file several weeks later and looked at it again it's not only inconsistent with that, but shows that he was going back to try to get more passwords. You're wrong, because when you think logically, you think about what was -- what did he really need to do, what was he trying to do, it doesn't make sense. If Randal Schwartz was trying to just steal passwords, he had them when the first Crack program was run. When we went and logged on the second time, he logged in with passwords that he already had. That showed him -- would have showed him at that point that he knew the passwords were -- the passwords that were cracked were still good. I don't have to get a whole new -- doesn't have to get a whole new password file if at that point he sees by doing that that the words that were cracked can work. That argument doesn't make sense. What makes sense is what Randal told you, which was, "I ran the program to see what the data was so I could prepare a report," but it finished up right around October 1st, right after that, and we see from the invoices that on October 4, ***he configured Snoopy, the brand new, fastest machine there. Then right after that, he leaves to teach some classes and he's gone for a while. He comes back and now Snoopy is up and running and he still has this information sitting there. And where is it sitting? Remember, now, this is the information that is in his files under password SSD, very cleverly hidden if he's trying to avoid detection. Clearly identified as what it is in. It's in there as password Brillig. It's in there password ORA, showing it was from O'Reilly. It was running under a program named Crack and all under his own name. And where was that running first? On a machine called Wyeth that was sitting on Morrissey's desk. Mark Morrissey is the Systems Administrator, is the one checking these machines to see that they are functioning properly and they are written in a way that anybody in that group could read and look at anything on his files. Not a single bit of -- it's a critical fact when it comes to evaluating whether he had any intent to steal anything. There was nothing sneaky about doing it that way. There was nothing surreptitious about it. No effort to master hide that stuff, that's critical. Because you know he has the skill to have hidden anything that he did in that regard if he was trying to steal things. Intel would never have known what hit them and everybody would have agreed on that. Not just our expert, but the Intel people also. So does the fact that it was run twice, is that inconsistent with that? No. In fact, it's consistent and only makes sense in the context of the explanation that Randal gave you, and that was he came back, "I've got to finish this report, now I've got a new machine. I've got the fastest machine around here and let me see how this program runs on the faster machine. I'll get -- I'll log this back in to get the most recent data," so that when you make your report, you're doing it only with the best and the most recent data that you've got available so that you can -- "If I'm going to do this, I'm going to do it right." And that's where things started October 21st, and that was the process that stopped running after Mark Morrissey found that this was going on and that brought us to where we are here. Would it have made sense to report this right away when the password program was -- passwords were cracked in the end of September? Certainly in hindsight, being Monday morning quarterbacks, yes, that would have been the better thing to do, to simply call up and say, "Here is the problem, here is what I found, here is the issue, you need to that care of it." But it is perfectly reasonable and understandable for Randal Schwartz to have said, "I want to prepare a full report first because I'm going back to take this to people at SSD who I left, a place where I left on some strained terms, and so if I'm going to have credibility to go back there, I need to have my ducks in a row. I need to have everything -- my facts lined up. And if I want to be able to get some favors or benefit out of this, I need to make sure that this was done right so they would appreciate the work that I've done," and these are the purposes. The purposes were mixed. The intent was mixed. Was it the intent to steal these things? No. Randal Schwartz did not need access to the Internet, an account on the Internet, if he was not going to be working at Intel. He had accounts that gave him access to the Internet at O'Reilly. He had an account at Tekbook that gave him access to the Internet. Only made sense if he was going to work at Intel. He only needed access through the machines to get his Intel e-mail if he wanted to stay there and continue working to do his job. So what were his purposes? What were his motives? Well, they are -- they were admittedly mixed, but they were, "I see a problem here. It is a problem with security. I can be the hero. I will solve the problem, and by solving the problem, I will get hopefully some -- we'll get some additional benefits. I will get maybe the opportunity to go back to work at SSD. They will see that, remember me, the guy who told them that the mail system they wanted to set up was not the right way to go, that it was backward, that it was just -- the way Lou Poehlitz wanted to do was not the best way and we had a disagreement and they changed things from my way, so I left my way to the one that the entire company has gone? I'm the guy who -- I'm a valuable asset to you. I want to come back and work. And it also would mean whether or not that would happen, maybe I would at least get access to the machines that would allow me the Internet connections," because SSD connection had a separate -- had a separate connection from ***obtaining and that system. We had evidence that Brillig and the SSD machines were running a different network for those purposes than Mink and the Hawthorn Farms computers. Now, were these personal motives? Were these motives to benefit Randal Schwartz? Well, I suppose, you know, yes, but were they motives that were part of his desire to do something valuable and to benefit Intel? The answer to that is also yes. Anybody who does a good job for a place or tries to do something to help out their employer, somebody who expects to get paid, hopes to get recognized and wants advancement and wants to get benefit, that's the benefit he was looking for. Not some kind of sinister benefit of sneaking access to computers that he wouldn't have -- that he wouldn't have otherwise. This wasn't -- this wasn't an elaborate plan to be able to gain access to the Internet. That just doesn't make sense and that's not what was going on. The way the State has characterized Randal Schwartz's actions in this case, it's like what Randal Schwartz was doing was trying to find -- that there was a rule and he was trying to find a way around it, when what he was really doing was seeing problems and trying to find a way to solve them. At the risk of repeating myself, I must, I cannot overemphasize to you the importance of the fact that Randal Schwartz, in running the Crack programs, made no effort to hide what he did. That is behavior that you heard was inconsistent with Rich Cower's areas experience of the behavior of somebody trying to secrete or take information out of the workplace. It is inconsistent with Andrew Johnson-Laird's experience with outside computer hackers or people inside companies who are trying to steal company assets. Finally, in this regard, what is it that the State is actually saying that was stolen? Passwords and password file containing cracked passwords. You've heard also how Intel had to go through great expense to change these things and to rework things. I would suggest it's an expense that had the line people coming to Randal Schwartz first saying, "What's going here," that would never have occurred. The key point is this: What value is a password that has been cracked? As the State said, it loses its value. But as some of the witnesses, including Intel witnesses told you that crackable passwords, passwords that are bad, that are easily guessed, aren't an asset to the company. It's a liability. Intel had a policy about how to set up passwords. Policy that you don't pick certain kinds of words. Policy that you don't share them with other people like your secretary or your wife or your other people that you work with. A policy that Ed Masi himself didn't follow. Policy that Justin Rattner apparently didn't follow. And isn't it ironic that the new version of Crack that Randal Schwartz was testing had a feature which allowed it to check for new twists, like remember talking about the dollar sign for the "S" and some other features, and just the kind of thing that Ed Masi did and the kind of thing that would tell you if you are on top of the security, the way we're doing business now isn't working effectively. Isn't it ironic then that when all of this came up, the person who is in charge of security for at least the six weeks that Randal Schwartz had been running these tests had not checked security. These people who all of a sudden got so upset knew nothing about the problems with their passwords. MR. TINTERA: Objection. There is no evidence of that. THE COURT: Well, after two weeks, I don't remember every bit of evidence or testimony, and frankly, if your recollection, ladies and gentlemen, of the evidence differs from either counsel, disregard what they say because what they say here in argument isn't evidence. Go ahead. MR. SUSSMAN: The point is that what Randal Schwartz ultimately was doing was showing people in SSD that and revealed that there was a serious problem that wasn't being addressed. And it was the kind of problem that he was addressing and taking care of and avoided during the time that he was a Systems Administrator there. Ultimately, it's so significant that no information of the password and password file was found anywhere on Mr. Schwartz's machines or in his records and that, remember, didn't need a search warrant to look for cracked passwords or cracked password file when this investigation started out. If that was what they were concerned about, if that's what they wanted to prosecute Randal Schwartz for, didn't need to show up at his house with a search warrant. The evidence was right there. That's not what the case was about. But in order to convince you of this new theory of theft, there has been evidence and there have been things about Mr. Schwartz that have been brought here that would -- I think that have been offered, have been brought up in a way to suggest to you or show to you that this is a person who is always seen perhaps sneaking into things or changing his privileges around or doing things in a way that he's not permitted to do. And in several key instances you've been given information like that that were demonstrably false. You were provided with testimony of John Kent of a security incident involving his DEC computer where Randal Schwartz had given himself root privileges on this thing. And when you find -- what we learned from Herb Mayer was this was a tool that was essential to doing the job on the T-A -- I haven't got the pronunciation down yet -- that he was contracted to do. It was not an incident. He spoke to John Kent and it was cleared up. John Kent did not tell you about the conversation with Herb Mayer when he testified, but he left you the impression that Randal Schwartz had been sneaking somehow this root access to this computer and was creating a security incident. Mark Morrissey testified to you that Randal Schwartz had -- after this transition when he took over as the Systems Administrator, that he removed Randal Schwartz's root access to a number of the machines in that group, but then he found out later on that Randal Schwartz had put root -- the root privileges back onto the computers. This would have been after sometime in June or July when this transition occurred. But the information we got from the very files that Mark Morrissey preserved that were printed out for us by Intel from those backup tapes showed that the last time that Randal Schwartz worked on that root file that Mark Morrissey was talking about was in December of 1992, six to eight months before Mark Morrissey says this incident happened. This is on Exhibit 155. Our first character witness, Patrick Reilly, talked about Randal working at Motorola and asked whether Randal Schwartz had been terminated from Tektronix and Tandem for security violations. And we know from Lyle Settle that in neither case was he terminated or suspended. Nor has there been any evidence such as records that would show that these incidents actually occurred. You had witnesses who came in here from Intel on direct to tell you that Randal Schwartz was basically terminated from SSD. This was done to suggest that he was fired. And the evidence that we brought out was that there was a disagreement over policy. Randal Schwartz -- basically became a mutual thing when Randal Schwartz announced, "I'm leaving." And John Gray told you that he had never communicated to Randal Schwartz that his contract was terminated prior to that time, other than to say, "This would be your last six months as an independent contractor." Similarly, as I mentioned before, there were misimpressions given to you in terms of how far wide open the security at Intel was left by the gate programs and door programs that Randal Schwartz had written. These misimpressions, these misconceptions might be accidental, but they also are not -- they are also consistent with a desire on the part of -- a desire to show Randal Schwartz in a light which would suggest to you without foundation that this is a person who would be breaking into places he shouldn't be to steal things that he didn't -- that he shouldn't be. Wind this down with a couple thoughts to leave you here with. Just before the trial started about a month ago, I had the opportunity to take my kids, my family to Washington, D.C. -- MR. TINTERA: Your Honor, I object to any personal rendition to the jury. THE COURT: Well, I think it's probably going to be proper argument. Going to wind up with something involving this -- some sort of illustration. MR. SUSSMAN: It is an illustration. MR. TINTERA: Go ahead. MR. SUSSMAN: Turning around, I happened to be by the Department of Justice in D.C., and over at the Department of Justice, a motto saying -- over the front door saying, "The United States never loses a case when justice is done to one of its citizens." The United States always wins when justice is done with one of its citizens. What does that mean in this case? The State of Oregon, the United States, the government prosecuting an individual, does it mean that it always wins if justice is done by getting a conviction? No. What it means is that we're going -- we're going through a process here, something that we have all gone through together that in a few minutes, a short time, will be left in your hands to make a judgment, to deliberate based on all of information that has been given to you, the evidence that you've heard, considering the arguments that we have given to you. And Randal Schwartz, I suppose, in some respects will be in your hands to determine whether or not you are satisfied that the State has proved these charges to you beyond a reasonable doubt. And when he goes through that process, when you have gone through that deliberative process and rendered your judgment, if upon that careful deliberation, if you come to the conclusion that you are satisfied beyond a reasonable doubt, then justice may be done. On the other hand, when you come to that process and you considered that and you see that there is reasonable doubt that Randal Schwartz was aware, consciously aware of -- that he knew that he was not authorized to do certain things, that if you have reasonable doubt that he intended to steal anything from Intel, to appropriate for his own purposes at the expense of Intel password files or a password, you come through that process and have ***written down and return a verdict of not guilty, then justice is done and the United States wins and one of its -- because one of its citizens has been through the process and the stigma of an accusation of a criminal offense has been removed. Now, we trust that you will give this case the deliberation that -- the careful deliberation. We have every reason to expect that you will and we have every reason to expect and trust that when you render a verdict, that it will be fair and justice will be done. Thank you.