On March 17, 2010, the magistrate judge presiding over the criminal case pending against the alleged hacker, David Kernell, issued a detailed and thorough ruling denying Mr. Kernell’s request for broad subpoena requests to rummage through Sarah Palin’s email account. The judge, U.S. District Judge C. Clifford Shirley, Jr. denied David C. Kernell’s motion to subpoena all of Governor Palin’s emails. Instead, the judge looked closely at the governments allegation against David Kernell, and Kernell’s defenses, and determined that the subpoenas the defense lawyer proposed sought, with one exception, completely irrelevant information to any issue pending in the case. Mr. Kernell was indicted for unauthorized access and identity theft allegedly committed on September 16, 2008. (March 17, 2010 Court Order, p. 2).
Kernell is facing trial for supposedly breaching and then establishing control over one of Gov. Palin’s private email accounts. After taking control of the email account, Mr. Kernell is then alleged to have posted several private emails, and personal and confidential information within the breached account to a public website. He was also indicted for posting the reset password to Gov. Palin’s breached account on that website and providing people with the means to access her account. One person apparently did in fact access her account using the information Kernell Provided (Shirley, 2010, p. 6).
Documents Sought Irrelevant and Inadmissible
For reasons never adequately explained by the defense, Kernell essentially sought access to every Palin email account and wanted copies of all emails. This amounted to a large scale fishing expedition that appeared more like a political maneuver than part of any justified legal defense. The court denied the overbroad and intrusive requests, and Judge Shirley ruled that Kernell “has received most of the requested materials in discovery and that the remainder are irrelevant or inadmissible at trial” (Shirley, 2010, p. 2). Federal Criminal Procedure Rule 17 stipulates that a subpoena may be issued to produce “any books, papers, documents, data, or other objects the subpoena designates,” and that all parties and their lawyers may inspect these documents; however, “[t]he Court may quash or modify a Rule 17 subpoena upon a motion promptly made if ‘compliance would be unreasonable or oppressive’ ” (Shirley, 2010, p. 2).
The government argued that the subpoenas were very broad and that the items requested were not relevant or admissible. With regard particularly to the subpoenas for information from Yahoo! and 4Chan, the government characterized most of the materials requested as duplicating discovery that the defendant had already received. It asserted that the materials that were not duplicative were irrelevant and inadmissible (Shirley, 2010, p. 2).
Most importantly, Judge Shirley denied the request to subpoena the content of email from any of Gov. Palin’s accounts. “The requests must be further narrowed to specifically exclude the content of emails” (Shirley, 2010, p. 5).
Rule 17 Not a Tool for Pre-Trial Discovery
Citing US v. Nixon, Judge Shirley noted that Rule 17 is not to be used as a tool for pre-trial discovery, which is a process by which evidence is gathered prior to a trial (Shirley, 2010, p. 3). Regarding Gov. Palin’s emails specifically, Shirley wrote in his ruling, “the government summarily suggested in passing that this Court lacked the authority to issue subpoenas for the content of emails under the Electronic Communications Privacy Act” (Shirley, 2010, p. 4). Essentially, acquiring these emails would have violated Gov. Palin’s privacy a second time and given the Democrats an opportunity to read her emails under the pretext of defending Kernell.
Seven out of Eight Subpoena Requests Denied; One Request Granted with Limitation
Only one out of eight requests within Kernell’s motion for subpoena was granted, and that was limited to one email account. (Shirley, 2010, p. 7). Judge Shirley’s order denying these subpoenas was a major victory for the prosecution. Gov. Palin is set to testify at the trial, which is scheduled for next month.
Shirley, C. C. (2010, March 17). “Memorandum and Order No. 3:08-CR-142.” United States District Court Eastern District of Tennessee at Knoxville.