Kernell sentencing set for November 12

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The son of state legislator Mike Kernell (D-TN) who was convicted of breaking into Gov. Palin's email account wants a federal judge to grant him probation rather than send him to prison for his crimes at his sentencing hearing next month:

David C. Kernell's request for a downward departure comes six months after a federal jury found him guilty of felony obstruction of justice and a misdemeanor count of unauthorized access to a computer. The same jury acquitted Kernell on a felony charge of wire fraud and deadlocked on a charge of identity theft.

The conviction carries a maximum sentence of 20 years in prison and a $250,000 fine. Sentencing guidelines in the case recommend that Kernell receive 15 to 21 months in prison, and the government has asked for 18 months. Sentencing is scheduled for November 12.

In a memorandum filed on Tuesday, Kernell's attorneys argued that although their client deleted some computer files after accessing Palin's account, he should not go to prison because he allowed much of the data to be preserved.

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In a sentencing memorandum filed on Wednesday, federal prosecutors outlined a series of steps Kernell took following the hack to cover his tracks. They included the deleting of images and emails he downloaded from Palin's account, the removal of temporary internet files, and running a disk defragmenter.

[More]

- JP

Meanwhile, back in Tennessee

Lest we forget, the case of hacking Sarah Palin's e-mail account continues in the Volunteer State, where David C. Kernell, the son of State Rep. Mike Kernell, a Democrat, is the defendant. One reason it is plodding along is young Kernell's lawyers have tried a variety of legal maneuvers, the most recent of which was to request that they be allowed to "poll potential jurors via a questionnaire that would examine, among other things, their political leanings and attitudes about Palin," according to a Knoxville News Sentinel report.

U.S. Magistrate Judge Clifford Shirley, presiding, would not allow it:

"The court finds that what little benefit would be gained by the use of a jury questionnaire is greatly outweighed by the burden such a questionnaire would impose on potential jurors," Shirley wrote.

Attorneys Wade Davies and Anne Passino earlier this year sought to use a jury questionnaire to prescreen potential jurors. Davies cited extensive publicity surrounding the case and Palin herself, who Davies said is a polarizing political figure.

So the keyboard warrior's defense team will will have to question potential jurors face-to-face.

Meanwhile, some new details about the case have emerged:

In recently filed court records, the U.S. Attorney's Office revealed that Kernell allegedly boasted of his plans to access Palin's e-mail account to his UT roommates, who, in turn, have given statements to the FBI and likely will end up on the government's witness list at Kernell's Oct. 27 trial.

Yikes, that wasn't too bright. It takes away the argument that he just got caught up in the moment with some other hackers whom he was trying to impress. On the contrary, bragging to his college buddies about his intent to hack into the former governor's personal e-mail account smacks of pure premeditation.

We wonder if young David was just trying to make his Democrat dad proud.

- 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