Illustrative summation

Illustrative summation

The following is an illustrative summation in a case involving a charge of computer crime.

Ladies and gentlemen of the jury:

I would like to thank you for your attention throughout this long and arduous trial. The evidence has been complex, but I hope it has not been too confusing.

Soon your task will begin. The judge will instruct you about the law to be applied to the facts that you determine to exist in this case. You will then decide the guilt or innocence of my client. Please allow me, however, in these last few moments, to tell you how I see the evidence in this case, and the law to be applied to that evidence. The statements I will make, are just statements. As you have heard the judge caution you throughout this trial, statements of counsel are not to be considered by you as evidence.

In this case, the prosecution has the burden of proving each element of computer crime against my client beyond a reasonable doubt. They must prove that my client intended to defraud the time sharing company or that he intended to obtain their services with false or fraudulent intent. If you are convinced beyond a reasonable doubt that it was my client's intent to defraud the company, or that it was his intent to obtain services with false or fraudulent intent, beyond a reasonable doubt, then you must find him guilty. But if you cannot, then you must find him not guilty.

Now, I'm going to demonstrate that my client had a reasonable belief that he had permission to do what he did. I also want to remind you that he obtained nothing by his acts, and that he had every reason to believe that what he was doing was not in any way criminal.

But just what does all this talk of "burden of proof" and "beyond a reasonable doubt" mean? It means that my client, Mr. M, is presumed to be innocent until Mr. P, of the prosecutor's office, proves him guilty according to law. And that presumption of innocence is evidence, ladies and gentlemen. You are to consider it in your deliberations just as you will consider the testimony of witnesses, the exhibits, the diagrams, and the photographs that have been admitted in this case. Let us now look more carefully at that evidence, and let us analyze it.

The prosecution has, of course, pointed out those things that it argues show my client's evil intent. They show you, for instance, that charges for the time my client used showed up on Mr. X's account in France and Mr. Y's account in England. But, did they tell you that Mr. X or Mr. Y had to pay these charges? No, they didn't. Do you know why they didn't tell you that? Because that is not the truth. Mr. X and Mr. Y were paying monthly service charges regardless of how much time they used. It didn't cost them anything when Mr. M, my client, did the act he is alleged to have committed. They told you that the domestic passwords had been changed, but they didn't tell you how simple it is to figure out the password once you understand the formula before or after they were changed.

What they didn't tell you is why [victim] is pressing charges despite the fact that it lost no money. Rather than focus on what the prosecution didn't do, let us turn to what my client is alleged to have done. He admits that he used the company's time, but that is not all that computer crime requires. Intent is the key.

Did Mr. M intend to defraud or extort the victim? Consider what he said, none of which was contradicted by any prosecution witness. He said that when he worked for the victim, he sold a service contract to the W & R Company. He further told us that it was common in the industry to spend months working with a new client until their system worked properly. He said that it was common for people who ran businesses like the time-sharing business to make computer time available so that these adjustments to the program could be made and the program could work. My client further testified that he was asked by the W & R Company to make their system work so they would not have to cancel their order with the time company. This he did, spending more than l00 hours of his own time trying to get the system to work right.

Now, you may ask why my client didn't simply tell the time-sharing company what he was doing. Well, he answered that question in his testimony before you in this trial. He said it was no big thing, that he knew several people in his company who had done the same thing for other clients. None of them had ever been stopped, and he had every reason to believe that the company knew that this was the way clients were taken care of. Even the prosecution witnesses support Mr. M. They agree that it is the custom in the industry to use computer time to get a program to run properly. They agree that there is a lack of clarity over what an employee can do to help out a customer whose program isn't working. They agree that often sales people will do just what my client did in order to help the company for which they work.

If we were accountants, consider how the balance sheet would look after our client spent 30 hours helping the [company] get its programs to work. He was out 30 hours of labor. He was not one penny richer. Consider the cost to the victim. They were not one penny poorer, and they benefited by having a happy client with programming that worked, rather than someone ready to cancel its order. And now, we can finish the picture by considering the cost to the client. It was zero. Consider the benefit—they had their contract with the victims fulfilled.

So then, when we look at the question we must decide, that of the intent of the defendant, you must ask whether this balance sheet looks like what happens when someone attempts to "defraud" someone else. Some "defrauding" it is, where the person defrauding doesn't win, and the person defrauded doesn't lose. Does it look like the defendant obtained services, or did he just make it possible for the victim's client to get what it was entitled to? Computer crime, a felony as it is defined in the statutes, requires an intent to defraud or to obtain services. It requires more than failing to tell the victim what it is that you are doing. Since the defendant was charged with computer crime, and not inappropriate silence, a verdict of not guilty is called for in this case.