[free-sklyarov] Dmitry gets new, high-profile defense lawyer: John Keker

[Xeni Jardin]

Didn't see this posted here yet -- apologies if I missed it.

John Keker will represent Sklyarov henceforth. Keker's courtroom history
includes serving as chief prosecutor in United States v. Oliver North,
1987-1989. From his bio: "In 2001, California Lawyer Magazine identified
him as most named by other lawyers as the person they would hire if
trouble strikes."

XJ
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Russian Programmer Dmitry Sklyarov Gains High-Profile Defense Lawyer

Substitution adds twist to cyber-cause celèbre

Shannon Lafferty
The Recorder
October 1, 2001

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/View&c=Article&cid=ZZZXFR3C6SC&live=true&cst=1&pc=5&pa=0&s=News&ExpIgno
re=true&showsummary=0>

Renowned San Francisco defense attorney John Keker has agreed to
represent indicted Russian computer programmer Dmitry Sklyarov on a pro
bono basis.

Keker's decision to represent Sklyarov, believed to be one of the first
to be criminally charged under the Digital Millennium Copyright Act,
could put an end to speculation that a plea deal is in the works.

Keker of Keker & Van Nest won't say whether any plea offers are on the
table but said he wasn't brought aboard to cut a deal.

"They are always welcome to dismiss the case, but we didn't come in to
make a plea deal," Keker said Thursday. "We are here to deal with the
defense of the case and to win it."

Sklyarov, 26, is accused of writing a program for his Russian employer
ElcomSoft that allows people using Adobe Systems Inc. eBook software to
copy and print digital books, transfer them to other computers and have
the text read aloud by the computer.

Keker, whose past cases include the prosecution of Lt. Col. Oliver North
in the Iran-Contra scandal, said he was approached to take Sklyarov's
case but did not elaborate further. Keker said he took the case pro bono
because he felt Sklyarov was unfairly targeted.

"I think he is being unjustly accused and that's the kind of case I like
to do," Keker said Thursday.

Defense attorney Joseph Burton was initially retained to represent
Sklyarov but is withdrawing to represent co-defendant ElcomSoft.

Since Sklyarov was arrested in July at a convention in Las Vegas,
programmers and technology companies have publicly criticized the
prosecution. The alleged victim, San Jose, Calif.-based Adobe Systems,
which initially reported Sklyarov and his Russian employer to the U.S.
Attorney's office, has said it no longer supports prosecution.

Both sides are currently conducting discovery. Keker said he and his
team will be working "to understand Adobe's role and determine whether
or not it's proper."

Colleen Pouliot, Adobe senior vice president and general counsel, did
not return calls.

Former prosecutors have said that Adobe's decision to distance itself
from the case makes it tougher for the U.S. Attorney's office.

"Unlike traditional crimes, where you have an individual or an
institution as the victim, tech crimes enter into a new area because all
the government has to rely on is the expertise of the company," said
Stephen Freccero, a former prosecutor now with Morrison & Foerster's San
Francisco office. "Generally, they are the kinds of cases the government
wouldn't even know about if they hadn't been contacted by the victim,"
Freccero added in a recent interview.

Groups like the Electronic Frontier Foundation, which promotes
cyber-rights, have been critical of the prosecution from the start,
saying the DMCA wasn't intended to criminalize software like Sklyarov's.

Meanwhile, observers have said Adobe's about-face has put the U.S.
Attorney's office in a tough situation. If it drops the charges, the
office may seem ill-equipped to handle the high-tech, white-collar
crimes it has vowed to go after. If it goes ahead with an unpopular
prosecution, it could alienate high-tech companies whose assistance it
needs to develop other cases.

Sklyarov, who is out on bail, will appear in San Jose federal court Nov.
26 for a pretrial hearing. If convicted, he could face five years in
prison and a $500,000 fine.