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1994-11-01
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>C O M P U T E R U N D E R G R O U N D<
>D I G E S T<
*** Volume 1, Issue #1.08 (May 9, 1990) **
****************************************************************************
MODERATORS: Jim Thomas / Gordon Meyer
REPLY TO: TK0JUT2@NIU.bitnet
COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing
information among computerists and to the presentation and debate of
diverse views.
--------------------------------------------------------------------
DISCLAIMER: The views represented herein do not necessarily represent the
views of the moderators. Contributors assume all responsibility
for assuring that articles submitted do not violate copyright
protections.
--------------------------------------------------------------------
***************************************************************
*** Computer Underground Digest Issue #1.08 / File 3 of 5 ***
***************************************************************
Re: Observation of Robert Morris Sentencing
On Friday May 4th, I went up to the federal courthouse in Syracuse to
witness the sentencing of my fellow Cornell graduate student, Robert T.
Morris, Jr. I'm not acquainted with Morris, but I've followed the case
closely through the media, Usenet, etc.
It seems that every U.S. courthouse has the same airport-style security
system: the walk-through metal detectors, the package conveyor belt. My
friend and I passed through this and were just about to step on the
elevator when we hear the guards laugh, saying "Here comes Robert!", and
around the corner of the building comes a grim-faced, hands-in-pockets
Morris Junior, surrounded by a cloud of dozens of microphone and camera
wielding reporters. "Pack journalism," sniffs my friend; the grinning
guards let our elevator go, and we reach the third floor ahead of the mob.
Apparently Judge Munson's sentencings were handled routinely every Friday
at 2:00 PM. This particular Friday, only two are scheduled; besides
Morris, there's a contractor who underpaid his employees on a Federal
construction project (sitting in the pew behind me, the contractor's lawyer
says to his client: "Don't worry, these people aren't all here for you.").
Ironically, the contractor's basic sentence (three years probation) is the
same as what is later pronounced on Morris; the contractor, however, is
required to make restitution to the aggrieved employees, and is prohibited
from bidding on federal contracts for some period.
With the contractor out of the way, the main show begins. First, the
defense attorneys (Guidoboni and O'Brien), always referring to their client
as "Robert," make lengthy statements. He's a "decent kid," they urge, who
has taken responsibility for his actions and is properly repentant.
Guidoboni, in particular, spends a good deal of time arguing about the
sentencing guidelines. Though I am not familiar with the Federal
sentencing guidelines, I have worked with Michigan's version, and they
basic concepts are the same. Fundamentally, the idea is to limit what used
to be unfettered judicial discretion over sentencing, under which people
committing similar crimes -- indeed, two partners in the same crime --would
routinely get radically different sentences, depending on which judge was
presiding and how he felt that day.
Given the stories they wrote, most of the reporters were completely
befuddled by the argument over the guidelines. Suffice it to say that the
new Computer Fraud and Abuse statute had been classified (presumably by
court rule) as a "six," a "fraud and deceit" crime. The pre-sentence
report applied this guideline, adding extra points for "special skills,"
and came up with a sentence of just under two years (I don't recall the
specific numbers offhand -- I think it was 21 months). Guidoboni argued
that fraud and deceit (and motivating greed) were not part of "Robert's"
crime; at most, it should be classified under "destruction of property,"
which was a "four" and carried correspondingly lower sentences.
Judges are allowed to depart from the guidelines, but they are required to
make clear why the guidelines were inadequate to determine the sentence in
the particular case. When I was practicing law in Michigan, one judge's
failure to make such a statement enabled me to get a client's sentence
reduced.
The prosecution surprised me by saying very little. Essentially, he said
he understood that the judge might want to depart from the guidelines in
this case, but hoped that he would sentence Morris to *some* jail time.
Then he sat down. If all the editorial-writers who have been yelling for
Morris' blood had seen it, they would have been appalled: this was the
opportunity for a fire-and-brimstone speech about national security and
billions in damages. Suddenly, it became clear that "severe punishment"
was *not* in the cards.
The judge called a five-minute recess and disappeared into his chambers to
craft his answer. When he returned, he asked if the defendant had anything
to say; Morris said "no" (the only word he spoke during the entire
proceeding). The judge then announced that NONE of the sentencing
guidelines applied to this case, and none were even analogous. Hence, he
was free to use his discretion, and he did: three years probation, $10,000
fine, 400 hours community service, no restitution required.
The hearing over, Guidoboni turned to the assembled media, with an air of
contempt and condescension, and said "I'll make it easy for you: Robert has
nothing to say, and he's not going to change his mind." He announced that
he would make a statement and take questions when he got outside. The
press assembled on the plaza outdoors, waiting for Guidoboni to make his
appearance. Most of what he said has been quoted elsewhere. Afterwards,
we ransomed the car (three bucks for 2 hours parking) and drove back to
Ithaca.
What was really striking about all this was the contrast between the fairly
widespread view (among editorial writers and lay people, especially) that
Morris deserved severe punishment and a long prison term, and the reality I
saw in the courtroom. Even my fiancee had argued that Morris "is guilty
and should go to jail." I think that people who are unfamiliar with the
legal system don't tend to consider how *good* Morris looks compared to the
more typical criminal defendant who has a history of (a) prior crimes, (b)
drug use, (c) violence, (d) greed, and (e) predatory behavior. Retribution
is not usually foremost on a sentencing judge's mind; rather, he or she
tries to look toward the impact of the sentence on the defendant's future
behavior. It is hard to imagine Morris doing anything like the Internet
worm again, so the need to lock him up is anything but pressing.
Lawrence Kestenbaum
Cornell grad student (City & Regional Planning, Historic Preservation)
Attorney licensed in Michigan
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