Ghost in the Wires: My Adventures as the World’s Most Wanted Hacker (57 page)

During my diesel therapy back to Los Angeles, I was detained in Atlanta for several weeks. The Federal penitentiary there was by far the scariest of any of the prisons I was held in the whole time I was in custody. The high walls of the prison are lined with coiled-razor-wire fences. There is no doubt that you’re walking into a dungeon. At every entry, there are big electronic doors and gates. The deeper you go into the bowels of the prison, the more you realize there is no way out.

When I was finally moved again, I was flown to several prisons in different states across the country. By the time I arrived in Los Angeles, I was not in a tolerant mood. When I got off the plane, the deputy U.S. Marshal gave me a big grin and said smugly, “Hey, Mitnick! So the U.S. Marshals finally caught you! It’s all about good police work.”

“The U.S. Marshals had nothing to do with it,” I told him. “It was a smarter civilian, working for the FBI.”

The deputy’s face fell, as all the other inmates around me laughed.

Back in Los Angeles, I was charged with violating the conditions of my supervised release by hacking into a Pacific Bell security agent’s voicemail, along with lesser infractions like associating with Lewis De Payne.

After ten months, my two-man pro bono legal team came to me with the plea agreement offered by Federal prosecutor Schindler. I could hardly believe what I was hearing: eight years in prison… and that wasn’t even the worst of it. This was what was called a “nonbinding plea agreement,” meaning that the judge wouldn’t be bound by the prosecutor’s recommendation, but would instead be free to set a much stiffer sentence. Even worse, I would be agreeing to pay
millions of dollars
in restitution, a sum that might well be more than I would earn in the rest of my life. And I would have to assign any profits from telling my story to my hacking “victims”—Sun, Novell, Motorola, and so on.

John Yzurdiaga and Richard Steingard are two dedicated attorneys, and they had put in many, many hours defending me pro bono. Nevertheless, I had been offered an unbelievably bad deal. Clearly I would
either need to be vigorously defended at trial or work out a better deal with the government.

The problem was, I was in no financial position to hire an attorney. Ironically, if I really
had
been tapping into those 20,000 credit cards before my arrest, I would’ve been able to afford an attorney who had significant resources to defend the case at trial or could have punched holes in the prosecution’s case to get much better settlement terms.

While I was pondering what to do, Bonnie came to visit and to tell me that Lewis De Payne’s attorney, Richard Sherman, was willing to represent me for free. She claimed he wanted to help because he didn’t think the government was prosecuting my case fairly and he believed I needed an aggressive lawyer.

It sounded good, but I was wary. Sherman wasn’t just Lewis’s lawyer but also his friend. Still, he came to see me himself and talked convincingly about winning at trial. After weighing the option of a minimal eight-year deal and discussing it with my family, I decided to accept Sherman’s offer.

For several weeks he did absolutely nothing on my case except to ask the court to allow me additional research time in the prison law library, a request that was summarily denied. The aggressive defense he’d promised me never materialized. He took my case and basically sat on it.

Soon after he became my attorney of record, I discovered the extent of the deception. When I called Sherman one day to discuss my case, Ron Austin answered the phone. I recognized his voice. Austin was the informant who had recorded my calls for FBI Agent Ken McGuire.

Sherman quickly assured me that Ron didn’t have access to my case files, but that wasn’t the point. These people weren’t on my side. When I realized that, I was as livid with Sherman for making an empty promise to put on a vigorous defense as I was with myself for having believed him.

Sherman, unlike any reasonable lawyer, instead of arguing for my release, actually demanded that the government indict me: “If you have something against my client, just indict him, and let’s go to trial,” he insisted. For a defense attorney to do that seemed outrageous. But that’s exactly what the government did.

On September 26, 1996, after being held for over a year and a half, I was indicted by a grand jury in Los Angeles on twenty-five charges, including computer and wire fraud (copying proprietary source code),
possessing access devices (computer passwords), damaging computers (inserting backdoors), and intercepting passwords. These were, of course,
added
to the original set of cell phone cloning charges from Raleigh.

For an indigent defendant—which I was—the judge can either direct that a Federal Public Defender be assigned or turn to the ranks of what are called “panel attorneys.” These are lawyers in private practice who take on indigent clients for a fraction of the rate that any well-established attorney would charge (at the time, the rate for panel attorneys was sixty dollars an hour). A panel attorney, Donald Randolph, was selected to handle my defense, and the new charges would be heard by Judge William Keller—referred to around the courthouse as “Killer Keller” because, courthouse regulars said, a defendant unfortunate enough to suffer a conviction in his courtroom, or even one who pled guilty, could expect the maximum sentence. Killer Keller was the Central District of California’s “hanging judge.” He was every defendant’s worst nightmare.

But I got a huge break. My other cases were being heard by Judge Mariana Pfaelzer, the same judge who had been responsible for my being held in solitary for over eight months, but at least she didn’t have as scary a reputation as Killer Keller. I really dodged a bullet there.

Attorney Randolph asked Judge Pfaelzer to have the new case transferred to her under the “low-number rule” (which allows related cases to be combined and heard by the judge handling the case with the lowest docket number—that is, the one assigned at the earliest date). Since the cases were related, she agreed. Nine months after I was indicted on the twenty-five counts, the smaller ones—the Raleigh charges and the supervised-release case—were finally settled. I was sentenced to twenty-two months. I had already been in custody four months longer than that. Attorney Randolph made an immediate request for a detention hearing, since I was now eligible for release on bail. The Supreme Court had held that every defendant had a right to a bail hearing.

When my attorney told Judge Pfaelzer that he had filed an application for bail to be heard the following week, the prosecutor objected, calling me a “flight risk and a danger to the community.” Her Honor said, “I’m not giving him bail, so there is no need for a hearing…. Take if off calendar.”

This was widely seen as a blatant denial of my constitutional rights. According to my attorney, no one in the history of the United States had ever
been refused a bail hearing. Not the notorious impostor and escape artist Frank Abagnale Jr. Not the serial killer and cannibal Jeffrey Dahmer. Not even the crazed stalker and would-be presidential assassin John Hinckley Jr.

As if that weren’t bad enough, my situation quickly got much worse. A defendant has the right to see the evidence the prosecution plans to use against him at trial. But the government lawyers continually gave reasons in court for not turning all the evidence over to my attorney. Most of the discovery was in electronic format—the files seized from my computers, floppy disks, and unencrypted backup tapes.

My lawyer then asked the judge to allow him to bring a laptop into the prison visiting area so he could review the electronic evidence with me. Again Judge Pfaelzer denied the request, adding, “We’re never in the world going to do that.” She apparently believed that just sitting in front of a computer, even under my attorney’s supervision, I could somehow cause great damage. (There was no wireless Internet in 1998, so it would have been impossible for me to pull an Internet connection out of thin air. But she simply didn’t know enough about how computers worked to have any idea whether I could connect to the outside world.) And besides, the prosecutors kept warning her that I would have access to the victim’s proprietary source code, or that I might write a computer virus that could somehow be released into the wild. As a result, we weren’t permitted to examine any of the electronic evidence against me that was key to the government’s case. When my attorney asked the judge to order the government to print out the files, the prosecutor said that there were far too many of them, so many that they would fill up the entire courtroom, and the judge refused to order the government to comply.

As word got around about the unfairness of my predicament, Eric Corley rallied a group of supporters who wrote articles on websites, spread the word in the online community, passed out fliers, and pasted bright yellow and black bumper stickers that said “Free Kevin” all over the place. Eric even sent some to me in custody.

On my thirty-fifth birthday, while I was being detained at the Metropolitan Detention Center in Los Angeles, my supporters wanted to come visit me, but as a pretrial detainee, I was allowed visits only from my immediate family and legal counsel.

When I spoke to Eric on the phone, I told him I would go to the law
library on the third floor of the detention center at exactly 1:30 p.m. Eric and members of the “Free Kevin” movement located the window and positioned themselves across the street. Then, when the guards weren’t looking, I pressed a “Free Kevin” bumper sticker against the window. Eric snapped a photo that ended up being used on the box cover of his documentary film about my case,
Freedom Downtime
.

Sometime later, the crowd started a demonstration across the street from the detention center itself. I looked out the window of another inmate’s room to see a parade on the street below: a chain of people holding up a big yellow and black “Free Kevin” banner and “Free Kevin” picket signs. Apparently this made the prison officials nervous. Shortly afterward, the entire prison was locked down for “security reasons.”

With the growing public awareness of my case, nearly two years after my attorney demanded that the government turn over discovery materials, Judge Pfaelzer finally relented and allowed me to use a laptop computer to review the evidence with my attorney. I never knew what made her change her mind. Maybe another judge had pointed out that she risked being reversed on appeal. Or perhaps someone had explained that without connecting the laptop to a modem and phone line, there was no way I could damage anything.

Whenever I was at the courthouse for a hearing, I realized the deputy marshals would turn their badges around any time they had to be near me. My attorney and I both wondered what that was about. Later when he was visiting me in the courthouse lockup, he noticed some text blotted out on the visiting form he had to sign. When he held it up to the light, he could read the print through the paper. He shook his head and said to me, “You’re not going to believe this.” Then he read me the blacked-out text:

Unbelievable! I guess they really were worried I had magical powers.

The Myth of Kevin Mitnick was about to take another really ugly turn. Before my case could even go to trial, Markoff and Shimmy were cashing in on the story. They had already written a book about it together in 1996; now they had sold the movie rights to that book, for a film to be called
Takedown
.

Luckily, one of the costume designers working on the film leaked a copy of the screenplay for
Takedown
to
2600
magazine. When I read the script, it literally turned my stomach. The screenwriters had cast me as an evil villain and portrayed me as doing things I had
never
done in real life, such as hacking into hospitals and endangering patients’ lives by altering their medical records. I was horrified.

One particularly preposterous scene even showed me violently assaulting Shimmy by grabbing a metal trash-can cover and slamming him over the head with it. Frankly, I couldn’t imagine either one of us engaging in such a ridiculous fight.

When he saw the script, Eric Corley wrote online that it was “far worse than I had ever imagined.” If it were made into a film, he said, “Kevin will be forever demonized in the eyes of the public.”

In an article for ZDTV, Kevin Poulsen wrote,

Appalled by the false portrayal of me in the movie script, my supporters picketed Miramax Studios in New York on July 16, 1998. Eric Corley brought international media attention to the fact that the script was filled with blatant lies. Eric was also responsible for getting the word out about the civil liberties issues its release would raise for my case. All of us were concerned that the movie would prejudice my trial.

During a phone call we had around that time, while I was still in pretrial detention, Alex Kasperavicius told me that Brad Weston, one of the producers of
Takedown
, was very eager to talk with me. I agreed to let Alex three-way Weston onto our call. Brad said he wanted my cooperation on the film. He also said that Skeet Ulrich, who had been cast to play me, wanted to speak with me.