Chapter 1
Kevin's Story
by Kevin Mitnick

The Ordeal

After my arrest I was transported to the County Jail in Smithfield, North Carolina, where the U.S. Marshals Service ordered jailers to place me into `the hole'-solitary confinement. Within a week, federal prosecutors and my attorney reached an agreement that I couldn't refuse. I could be moved out of solitary on the condition that I waived my fundamental rights and agreed to: a) no bail hearing; b) no preliminary hearing; and, c) no phone calls, except to my attorney and two family members. Sign, and I could get out of solitary. I signed.

The federal prosecutors in the case played every dirty trick in the book up until I was released nearly five years later. I was repeatedly forced to waive my rights in order to be treated like any other accused. But this was the Kevin Mitnick case: There were no rules. No requirement to respect the Constitutional rights of the accused. My case was not about justice, but about the government's determination to win at all costs. The prosecutors had made vastly overblown claims to the court about the damage I had caused and the threat I represented, and the media had gone to town quoting the sensationalist statements; now it was too late for the prosecutors to back down. The government could not afford to lose the Mitnick case. The world was watching.

I believe that the courts bought into the fear generated by media coverage, since many of the more ethical journalists had picked up the "facts" from the esteemed New York Times and repeated them.

The media-generated myth apparently even scared law enforcement officials. A confidential document obtained by my attorney showed that the U.S. Marshals Service had issued a warning to all law enforcement agents never to reveal any personal information to me; otherwise, they might find their lives electronically destroyed.

Our Constitution requires that the accused be presumed innocent before trial, thus granting all citizens the right to a bail hearing, where the accused has the opportunity to be represented by counsel, present evidence, and cross-examine witnesses. Unbelievably, the government had been able to circumvent these protections based on the false hysteria generated by irresponsible reporters like John Markoff. Without precedent, I was held as a pre-trial detainee-a person in custody pending trial or sentencing-for over four and a half years. The judge's refusal to grant me a bail hearing was litigated all the way to the U.S. Supreme Court. In the end, my defense team advised me that I had set another precedent: I was the only federal detainee in U.S. history denied a bail hearing. This meant the government never had to meet the burden of proving that there were no conditions of release that would reasonably assure my appearance in court.

At least in this case, federal prosecutors did not dare to allege that I could start a nuclear war by whistling into a payphone, as other federal prosecutors had done in an earlier case. The most serious charges against me were that I had copied proprietary source code for various cellular phone handsets and popular operating systems.

Yet the prosecutors alleged publicly and to the court that I had caused collective losses exceeding $300 million to several companies. The details of the loss amounts are still under seal with the court, supposedly to protect the companies involved; my defense team, though, believes the prosecution's request to seal the information was initiated to cover up their gross malfeasance in my case. It's also worth noting that none of the victims in my case had reported any losses to the Securities and Exchange Commission as required by law. Either several multinational companies violated Federal law-in the process deceiving the SEC, stockholders, and analysts--or the losses attributable to my hacking were, in fact, too trivial to be reported.

In his book he Fugitive Game, Jonathan Li wan reports that within a week of the New York Times front-page story, Markoff's agent had "brokered a package deal" with the publisher Walt Disney Hyperion for a book about the campaign to track me down. The advance was to be an estimated $750,000. According to Littman, there was to be a Hollywood movie, as well, with Miramax handing over $200,000 for the option and "a total $650,000 to be paid upon commencement of filming." A confidential source has recently informed me that Markoff's deal was in fact much more than Littman had originally thought.

So John Markoff got a million dollars, more or less, and I got five years.

Click here to go to the next section.