Jury has reached verdicts on 3 of 4 charges against Kernell (Updated)

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From the courtroom where David Kernell is on trial, Jim Balloch of the Knoxville News Sentinel reports some progress by the jury:

Federal court jurors reported today they have reached a verdict on three of four charges against former University of Tennessee student David C. Kernell, accused of illegally accessing the private e-mail account of 2008 GOP vice presidential candidate Sarah Palin.

But they also reported they are deadlocked on the first count, a charge of identity theft.

Without asking what their verdict is on the other counts, U.S. District Judge Thomas W. Phillips sent them back to the jury room to continue deliberating the first count.

In their written communication to the judge this afternoon, the jurors said: "Some of us feel not all jurors are following the jury instruction."

Update: The jury has called it a day:

Federal court jurors will return Friday to continue deliberations against former University of Tennessee student David C. Kernell, accused of illegally accessing the private e-mail account of 2008 GOP vice presidential candidate Sarah Palin.

The jurors told U.S. District Judge Thomas W. Phillips shortly after 4 p.m. this afternoon they wanted to go home and wanted to resume deliberating Friday morning

- JP

Judge upholds warrants in Palin e-mail hacking case

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A U.S. district judge ruled against the defendant charged with hacking Sarah Palin's e-mail today by refusing to dismiss search warrants for Internet provider records:

U.S. Magistrate Clifford Shirley Jr. in a decision Friday denied the motion filed on behalf of David C. Kernell, 22, whose father is a Democratic state lawmaker from Memphis.

Defense attorney Wade Davies and the chief prosecutor in the case, Assistant U.S. Attorney Greg Weddle, did not answer telephone messages seeking comment.

Authorities say Kernel was a University of Tennessee student who gained access to the former Alaska governor's personal Yahoo e-mail account when she was serving as the running mate to Republican presidential candidate John McCain.

Kernell is free on bond, charged with computer fraud, unlawful electronic transmission of material outside Tennessee and intentionally accessing Palin's e-mail account without authorization. His trial is set for April 20 in Knoxville.

Davies' motion charged that the magistrate overstepped his authority by issuing warrants beyond the East Tennessee federal court district, but prosecutors countered that the warrants were proper under the Electronic Communications Privacy Act.

Shirley's decision cited a change in federal law made in 2001 which granted such authority to a "court with jurisdiction over the offense under investigation."

- JP

Judge denies defense subpoena request in Palin e-mail case

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A U.S. District Judge last week denied a request by alleged e-mail identity thief David Kernell to subpoena all of Sarah Palin’s emails. Magistrate C. Clifford Shirley, Jr., after examining the government's case against Kernell and Kernell’s defense, ruled that the subpoenas being sought by Kernell's defense team, with one exception, were not relevant to the case. Kernell, the son of longtime Tennessee state Rep. Mike Kernell (D-Memphis), was indicted in October, 2008 for unauthorized access and identity theft which was allegedly committed on September 16, 2008. Former Gov. Palin is expected to testify as a witness in the case.

Ron Devito has the full story at US for Palin.

h/t: Sarah's Web Brigade

- JP

An e-mail from Sarah Palin

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Dear Friend,

As the Going Rogue book tour ends, I want to thank everyone for their outpouring of support. At every stop along the way my family and I were treated like members of your family and I can’t tell you how honored and thrilled I was by the opportunity to meet so many of my fellow Americans!

I've attached a link to some of our favorite photos from the tour. They reflect the warm feelings and energy that made each of the book signing events so incredibly moving.

After all our travels, it's even more obvious to me that the winds of change are blowing strong. At every stop people talked about the need to take our country back. So let's do it! 2010 is just around the corner and with it will come one of the most critical elections of our lifetime. With important House and Senate races across our nation and dozens of gubernatorial races we have the chance to make a positive difference throughout our country.

I am going to help campaign across our great nation and I'd like your help to do it. If you are able to contribute I will use the SarahPAC donations you place in my trust to support candidates who share our core values, and I’ll work on issues that can put America back on the right path. With your help, we can bring real change to America!

From my family to yours, we wish you a very Merry Christmas and a Joyous New Year.

God Bless the USA! 

Kernell's lawyers: The spyware made him do it

Lawyers for David Kernell, who is charged with hacking into Sarah Palin's webmail and posting her messages on the internet, are now claiming that their client's computer was infected with spyware. According to The Register:

The contention may be used at trial to support arguments that the 21-year-old student son of a Tennessee Democrat politician was not personally responsible for the hack on a Yahoo! account maintained by the former Alaskan governor, which was traced back to an IP address used by Kernell.

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Palin described the incident as hugely disruptive to the Republican presidential campaign in her recently published book.

Lawyers acting for Kernell claim his Acer laptop was infected with unspecified malware in a motion filed on 30 November. However, the malware involved has been isolated and subjected to scrutiny, Security Blanket reports.

Ah, yes, the old "Trojan Horse" defense... Don't laugh. The tactic was successfully employed by lawyers for accused hacker Aaron Caffrey against an indictment that he hacked into the Port of Houston's systems in a denial-of-service attack which crashed the servers that provide navigational data for the Texas port, one of the world's busiest. Incredibly, Caffery was found not guilty by a British jury in 2003. 

We say "incredibly" because expert witnesses found no evidence of Trojan infection on his PC. Even more incredibly, Caffrey served as an expert witness in his own defense. As an "expert" he would have likely known if his computer was infected and would have taken steps to "disinfect" it. Even more incriminating was the fact that Caffrey was a member of a group which called itself "Allied Haxor Elite" and acknowledged that members had a history of hacking into computers in the past.

Caffrey's lawyers somehow managed to convince the jury that their client and his Allied Haxor Elite colleagues had only done their hacking with the permission of computer owners who wanted to "test" their security systems. The missing virus was explained away by "expert witness" Caffrey, who testified that the program "might" have been designed to self-destruct and leave behind no trace of its mischief.

The Register says that in other cases, suspected pedophiles have been cleared by computer forensics after Trojans capable of downloading illicit images were found on their PCs. So apparently in the UK, hackers are judged innocent when malware is found on their computers and also when it is not found on their machines. The British Isles sounds like a hacker's paradise to us.

It remains to be seen whether an American jury will be as lenient in Kernell's case or to what extent, if any, his legal team will use the Trojan Horse defense when his trial begins in late April of 2010. But the alleged Palin hacker's attorneys have laid the groundwork to blame the invasion of Sarah Palin's e-mail account on some "other" anonymous hackers. Poor little David, son of a Democrat politician, you see, was just an innocent proxy.

Riiiight... and we're the Smith Brothers. Try one of our cough drops.

- JP

Nearly forgotten Palin e-mail hacker case delayed again

Does anyone remember the son of a Democrat state representative from Memphis who allegedly hacked into Sarah Palin's e-mail account while she was still governor of Alaska? David Kernell's lawyers are hoping that most people will have forgotten about the crime by the time the defendant's legal team runs out of motions to file as they pursue a strategy of seemingly endless delays. Kernell's trial, which was set to start yesterday, has been moved back another six months to April 20 2010, barring any additional delays.

Kernell was charged with not only hacking into Palin's personal e-mail account, but also with posting some of her private emails and family photos on the 4chan Web site during the 2008 presidential campaign. He was arrested a few weeks later on felony hacking charges.

The hacking of Sarah Palin's e-mail account, much like the torching of her church, is something the Democrat-Media Complex could not care less about. Put the shoe on the other foot for a few minutes, and try to imagine the outrage in the Obamunist lapdog media had Barack Obama's e-mail been hacked by the son of a Republican politician. Then we would have seen some coverage!

Keith Olbermann would be ranting nightly to the tune of something like, "Will justice never be served, sir?" Chris Matthews would no doubt have felt a chill running up his leg due to the vile perniciousness of the Vast Right Wing Conspiracy seeking to deny Obama his privacy, which Rachel Maddow would have assured us is a right, much like abortion, which is granted by the constitution. And that's just at one minor, low-rated network. Multiply all the outrage by the number of fiercely loyal Obamunist media outlets, and you would have a cry heard around the world -- night and day, every day.

- JP

Palin e-mail hacker trial update

Remember David Kernell? The 21-year-old son of Tennessee state Democrat Representative Mike Kernell was indicted by a federal grand jury in Knoxville last October after being charged with hacking into then GOP vice presidential candidate Sarah Palin's personal e-mail account. Kernell the younger, who was just 20 then, was charged by the grand jury for breaking into the account, making screenshots of the contents, posting them on a public website, resetting Palin's password and posting both the screenshots and the new password on a public website so that others could access the account.

Yes, that David Kernell. His lawyer Wade Davies has been seeking "a host of records and information" from Gov. Palin and her administration on behalf of his client, a student at the University of Tennessee who gives a whole new meaning to "Volunteers" - the school's mascot. Davies told Judge Clifford Shirley that Gov. Palin's announcement July 3 that she would resign before the end of the month heightens the sense of urgency of his requests for the records.

The judge told Davies that he was asking for too much information and must limit his requests. Kernell's lawyers are after "anything showing whether Palin followed privacy procedures recommended by Yahoo, as well as information on who in Alaska state government could use private e-mail accounts for state business." The defense team, in other words, wants to make it seem like it is Sarah Palin's fault that the angelic young Kernell was able to get into her e-mail account because she made it too easy for him to do it. By some strange coincidence, this same argument can be found on many anti-Palin Democrat websites. Poor, innocent little David is the victim here, and it's all the fault of "that woman." One problem for the young Democrat operative is that the judge doesn't seem to be buying it.

Here are some related links:

PDF copy of the proposed subpoena for Gov. Palin's records
PDF copy of Kernell attorney's motion requesting the subpoena
PDF copy of federal prosecutor's response to Davies' request
PDF copy of Federal Grand Jury indictment of David Kernell
PDF copy of DOJ news release announcing the indictment

h/t: Right Voices, knoxnews.com

- JP

Kernell attorney: Palin e-mails were public record

Via Wired:

A surprise legal maneuver by the defense in the Sarah Palin hacking case could undermine key charges carrying the stiffest potential penalties.

A lawyer for the Tennessee college student charged with hacking into the Alaska governor’s Yahoo e-mail account last year says his client couldn’t have violated Palin’s privacy because a judge had already declared her e-mails a matter of public record.

Wade Davies, attorney for the son of Tennessee State State Rep. Mike Kernell (awesome coincidence - what are the odds?) wants a federal judge to dismiss all of the charges on various grounds. Davies has filed a number of motions and memorandums on behalf of his 20-year-old client David Kernell trying to shoot down the government’s four-count federal indictment.

Will this line of defense work? Wired asked Mark Rasch, a former Justice Department cybercrime prosecutor:

Rasch says the argument that e-mail is not property is "interesting" but will likely fail to get the wire fraud charge dismissed. However, if the matter goes to trial, he says the attorney might be able to convince a jury that Kernell simply accessed the e-mail out of curiosity, not out of an intent to defraud.

The accused hacker's trial is on the docket for Oct. 27.

- JP