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From: mnemonic@walt.cc.utexas.edu (Mike Godwin)
Newsgroups: comp.dcom.telecom
Subject: Re: Neidorf Trial - Press Release on Dismissal
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Date: 4 Aug 90 17:42:25 GMT
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In article <10400@accuvax.nwu.edu> mpd@anomaly.sbs.com (Michael P.
Deignan) writes:

>In article <10254@accuvax.nwu.edu> apple!well.sf.ca.us!well!
>nagle@uunet.uu.net (John Nagle) writes:

>>Zenner said the government's decision came after he provided the
>>prosecutors copies of publicly available documents which demonstrated
>>that the document Neidorf published electronically contained no secret
>>information.

>Should this information not have been made available during
>"discovery" of the judicial process?

>If it were made available during the discovery process, then why did
>this trial ever get off the ground? Or, did the prosecution merely
>ignore the fact that this evidence existed in the pursuit of a
>witch-hunt?

Discovery is a process in which each side in litigation can compel the
production of information of various sorts from the other side.
Discovery, which plays a major role in civil proceedings, is very
limited in criminal cases, for a couple of reasons.

First, the right of prosecution to discover information from a
defendant is vastly limited by the defendant's Fifth Amendment
privilege against self-incrimination and against forced testimony.
Even if the defendant has exculpatory information in her possession,
it sometimes is strategically unwise to show all your cards to the
other side, which may use that information to identify and fix weak
spots in its own case.

Second, prosecutors typically rely on police investigation and
grand-jury proceedings, not discovery, to gather evidence prior to a
criminal trial. Because their cases are made up almost entirely of
evidence gathered through these two processes, oversights on the
prosecutors' part may go undetected for a long period of time.

Incidentally, Sheldon Zenner, the lawyer who defended Neidorf, has
publicly thanked the Electronic Frontier Foundation for its efforts in
raising consciousness and providing resources for Neidorf's defense.
One of the things that was no doubt very helpful to Zenner was the
discussion here and in other newsgroups concerning the inflated
valuation of the Bell text files that Riggs copied and sent to
Neidorf.

One of the sad aspects of the dismissal of the case against Neidorf is
that other defendants in these prosecutions pled guilty before the
weakness of the prosecution's case concerning the E911 file became
apparent. Robert Riggs, who was named with Neidorf in a joint
indictment, is a felon now, even though the whole issue of federal
jurisdiction in this case has been called into question by the
revelation that the E911 files were publicly available, and that even
had they not been, the valuation given them by Bell South was
questionable at best. (The desire to give federal prosecutors
jurisdiction was almost certainly the reason for the inflated price
tag put on the E911 documents by Bell South and/or AT&T.)

I remind those who've followed this story that certain people in this
newsgroup, including Gene Spafford, assured us that we'd change out
tune once the facts came out. Well, the facts are out now.


Mike Godwin, UT Law School  
mnemonic@ccwf.cc.utexas.edu 
(512) 346-4190