Prosecution's Rebuttal to Defense Closing Statement By Mr. Thomas J. Tintera for the State of Oregon 25 July 1995 ------------- MR. TINTERA: I will be brief. I've had -- I've said most of what I would like to say when I first spoke with you. There is a couple things that I'd like to bring up. This has been likening to a labor dispute between an employer and employee, and look at the situation where perhaps you hire someone to do work in your house, in your garage, and they're doing the work in the house and they have the key to both and, unfortunately for you, as it turns out later, that the key to the garage also they can use to gain access to the key to the house, but they're done in the house. Their contract is over, but they can still come into the garbage and you thought you got the key back but you didn't. You forgot about it. So they go back into your garage and they use the key and they go into your house and they go in there and they do whatever. They take things that are proprietary information to you, your checking account number, your Visa card number, your credit card number for the telephone, or maybe just look around. But the point is, you could look at that as a labor dispute, but it's also a criminal act. I mean, a person could fire them, call the police, do either one, so what? That has nothing to do with the facts of this case, absolutely nothing to do with the facts of this case whether it was an employment situation or a person violated the law. It just doesn't have anything to do with it. Counsel has fried to show you State's Exhibit 23, this is the two copying of the SSD password file, once on September 24th and once on October 21st, and says this is no big deal. This is what Mr. Schwartz had in mind all along. The point is, that's not what he told you. He told you, "I copied it once and I was going to do a time trial against it on the new machine to see how it did." That's what he said. Why was it important for him to have you believe that he only copied it once? Do you think he didn't know? Did you think he didn't know because he would have had to use somebody's password again to get that file? Do you think he didn't know he did that? That was a breach of trust. You know when you cross the line. You don't forget it. He knew he had done this twice. Why was it important for him to have you believe he had only done it once? Because it fit in with his security excuse for his behavior. The security excuse that is not supported by anything that he did except his word in one portion of his interview with the police is the only time it's supported. Nothing that he did beyond that supports it. He never revealed to the person Ron B that he had a lousy password. That was done and it was testified to by everyone else when they used the Crack program for it to be of any use to the security, he would have to tell the person, unless you're using it for your own particular purposes, then you wouldn't, because that avenue is closed off. I submit to you that it's significant that this was copied twice, that Crack was run on it twice, and it's entirely consistent with him updating the passwords. He doesn't have to use them to find out. He recopied the password file and updates it. People are changing it so he can do what? It fits in exactly with what he told Detective Lazenby. "I needed them in case they caught me doing it and knew they would shut me down so I needed the passwords. The more I had, the longer I could continue to do what I wanted to do." That's what he told Detective Lazenby. The thread through what his statements is one, "What I was doing violated Intel policy." He said that to Mr. Cower. He said it to Mr. Lilley. He said it to Mr. Lazenby. Now, do you think honestly now, do you think that they didn't hear that right? I can't ask for a show of hands, but do you think they didn't hear that right? Do you think that when Detective Lilley put in his report "technically illegal" that he didn't get that right? They wrote these reports almost contemporaneous with the interview. Mr. Schwartz readily acknowledged that not only was this activity against Intel policy, but there was no doubt in his mind that he could be held criminally liable for it. "I needed them in case they caught me doing it and they would shut me down, so the more passwords I had, the longer I would continue doing what I wanted to do." That's the essence of this case, that Mr. Schwartz wanted to do what he wanted to do, and "Intel be damned, I'm going to do it my way. I don't care if Seth Bradley tells me back in 1991 it is against Intel policy to do that." You need the approval of your superior. That's exactly what happened. But more importantly perhaps, is how did they fix it? They put that access beyond the fire wall. That's how they fixed that particular problem. None of what Mr. Schwartz did later on was beyond the fire wall. It was right through the fire wall. He was told then it was against Intel policy. He was told in March of 1993 it's against Intel policy. He was told in July of 1993, "It is against Intel policy. If you want to do this, you must get security clearance." How much clearer could it possibly be to him? Then he takes his arrogance, takes the very same program and places it on Brillig. That's exactly what he did. He was going to do what he wanted to do no matter what. He knew it was against policy. He knew it was illegal and he chose to do it. You have to be a accountable for your actions. You have to maintain accountability for your actions, and that's what I'm asking you to do. Hold him accountable for what he did. The definitions in regard to him committing theft of the password file -- MR. SUSSMAN: Your Honor, I object. This is not rebuttal now. This is repeating the earlier argument. THE COURT: Overruled. Go ahead. MR. TINTERA: Appropriate property of another to oneself, to exercise control of property over another under such circumstances as require the major portion of the economic value or benefit of such property. Deprive property of another. To withhold property of another under such circumstances that the major portion of its economic value or benefit is lost. He did it for his own purposes, not Intel purposes. ****(Tom was reading from the definitions of theft and knowingly) That's all I have to say about the facts of the case. The Judge will tell you what the law of the case itself is now. You have to determine the facts and apply them to the law. There is nothing we can do to change what happened in 1993, and that's what we need to look at, what happened back then. Thank you.