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Letter from Cybersalem #7
I have already introduced Richard Cower, the Intel Network Security Specialist, State's Expert and expert witness for the trial in Oregon v. Schwartz. This impressive set of titles understates Cower's importance in the prosecution of Randal Schwartz. According to the prosecutor, without Rich Cower beside him at the prosecutor's table during every moment of the trial, Randal could not have been prosecuted:
"I can tell you this from some of my witnesses, I'm learning new things that I don't know the answer to all the time, including this morning. I'm learning things that I didn't know about the computer, that if just talking with my own witnesses is producing that, then I absolutely do need Mr. Cower right by my side to ask him about that during trial. I can tell you that because there are things that have already happened this morning that I don't understand, and it was on a fairly simple point, I thought, until the witness started talking."
"So just with my own witness, I can tell you this, that I need his ability to translate what they are saying to me in a language that I can understand. So from that standpoint, he is essential based upon what has already occurred this morning." [1]
"[ ... ] I'm asking the Court to exercise your discretion in allowing Mr. Cower to remain present during the trial. I'm also indicating to the Court that in order for me to translate the language that the witnesses speak in, it is essential that he act as a translator to me. And I can't tell you what it is that the words that will be spoken that will require translation. I can tell you this, they have already occurred this morning when I was talking to some of the witnesses that I anticipate calling this morning, such that -- and he was not present when it occurred, such that I have a call in to him to try to find out what this means." [2]
As you might imagine, Tintera found it humiliating to admit that he was incapable of prosecuting this case without an Intel employee watching him full-time, and he consumed considerable court time looking for a face-saving way to avoid this. But Judge Bonebrake, trying to ensure Randal's conviction survived appeal, required this admission from Tintera. [3]
Having persons other than the prosecutor sit in as State's Expert is not rare, but these are nearly always law officers. For the victim to be able to demand and get a seat at the prosecution table is highly irregular. And in this case, the alleged victim is a Security Officer working for the employer of most of the witnesses -- an employer who demonstrates with this case that their co-workers who find themselves unpopular with management can go to jail for deeds which in other circumstances and for other employees do not even produce a reprimand.
For Cower to become the prosecutor should not be necessary in the first place. If the D.A. does not understand why the defendant is guilty, instead requiring Cower to continually remind him, how is he expecting to properly convince a jury?
Additionally, there is a very important reason why witnesses like Cower are almost never allowed to listen to other witnesses' testimony, as Cower was able to do after turning Tintera into his sidekick. Quoting Judge Bonebrake:
"I also keep in mind, something I've observed over the last 25 or 30 years, when witnesses are permitted to remain in court, there certainly is a risk that they will -- we're always concerned about people lying, making up testimony, maybe something less than that, forgetting some facts in order to make their testimony coincide with the testimony of other witnesses that they hear testify. That's the risk, certainly." [4]
Note 1: Tr. 7-13-95, page 12, lines 5 to 22.
Note 2: Tr. 7-13-95, page 16, line 23 to page 17, line 12.
Note 3: The discussions of Cower's status are Tr. 7-11-95, page 360, line 14 to page 368, line 20; Tr. 7-12-95, page 14, line 17 to page 23, line 5; and Tr. 7-13-95, page 4, line 3, to page 25, line 6.
Note 4: Tr. 7-13-95, page 23, line 22 to page 24, line 5.
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