That development could speed the release of the 35-year-old, removing an obstacle that could have prevented Mitnick from going free from federal prison soon after he is formally sentenced Monday in an unrelated federal case. "We're ecstatic," said Carolyn Hagin, one of Mitnick's attorneys in the state case. Deputy District Attorney Daniel Bershin said he dropped the state case because it had been "mischarged."
In 1993, the district attorney charged Mitnick with one count of illegally accessing a Department of Motor Vehicles computer and retrieving confidential information. The problem with that charge is that Mitnick, posing as a Welfare Fraud investigator, simply picked up a telephone on Dec. 24, 1992, and duped an employee accessing the DMV computer for him. "Since Mitnick did not personally connect to the DMV computer, but either he or someone else communicated with the DMV technician via a telephone conversation," Bershin wrote in his motion to dismiss the case, "it would be difficult to prove that Mitnick gained entry to the DMV computer, or that he instructed or communicated with the logical, arithmetical or memory function resources of the DMV computer."
Bershin also confirmed at a July 28 hearing what many of Mitnick's supporters have been claiming for years: that their martyr has been the target of overzealous prosecution. Bershin first informed Los Angeles County Superior Court Judge Leland Harris of the district attorney's intention to drop the case at the July 28 hearing, a position that caught Harris off guard.
As early as July 7, Deputy District Attorney Larry Diamond -- who had originally handled Mitnick's case -- was vigorously arguing against any reduction in Mitnick's $1m bail pending trial. "So I'm curious as to why all of a sudden between July 7 and July 28 we have this radical change in position," the judge asked of Bershin. "Well, I think to be quite candid, the answer, or course, is Mr. Diamond," Bershin said. "I know that Mr. Diamond has wanted to handle this matter personally for a long time ... and I know that Mr. Diamond personally believes that Mr. Mitnick has been skating through the system for a long time and has a great interest in him."
At that July 28 hearing, Harris refused to dismiss the case, saying to do so would be "a radical jump off the precipice to move to dismiss at this time." He ordered Bershin to submit a written motion to dismiss, which Harris granted Friday. Harris' action clears the way for Mitnick's freedom. He is due to be sentenced in federal court for several hacking charges he pleaded guilty to in March. His attorney in the federal case, Donald Randolph of L.A.'s Randolph & Levanas, said he will ask Central District Judge Mariana Pfaelzer to order Mitnick into a halfway house after formally sentencing him to 68 months in prison.
Randolph said he is optimistic Pfaelzer will grant the request, but if she doesn't Mitnick is set to go free sometime in January. Still at issue is the amount of money Mitnick must repay in restitution. His victims, including several high-tech giants such as Sun Microsystems and Motorola Corp., say that Mitnick's hacking cost them millions of dollars in compromised intellectual property.
Federal prosecutors are seeking $1.5m (£.9m) in restitution. Mitnick, through Randolph, argues that he is leaving prison broke and that conditions of his probation, once he is released, severely restrict his access to a computer, the only way he knows how to make a living.
Pfaelzer has indicated that she will order Mitnick to make some restitution, which she is scheduled to decide Monday as well. Mitnick was arrested in 1995 after a high-profile, two-year, electronic manhunt for him.