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Conspiracy Nation -- Vol. 8 Num. 93

("Quid coniuratio est?")


Subject: Re: Casoloctopus

Kenn Thomas
As Inslaw prepares for its new day in court [see Conspiracy Nation Vol. 8, #91], the following reviews some of the legal history of the PROMIS case. The excerpt comes from THE OCTOPUS: SECRET GOVERNMENT AND THE DEATH OF DANNY CASOLARO by Kenn Thomas and Jim Keith, available next month from Feral House, POB 3466, Portland, OR 97208,

Kenn Thomas publishes Steamshovel Press a "conspiracy theory" journal available for $6 from POB 23715, St. Louis, MO 63121,

Inslaw and The Law

Danny Casolaro had been pulled under by the Octopus of his imagining or his investigations, perhaps both. In not too distant waters, however, other behemoths thrashed about for supremacy in an even larger conspiratorial sea--the law.

Legal forces lined up against Inslaw began to clarify when the Hamiltons discovered that Associate Attorney General D. Lowell Jensen had, as District Attorney in Alameda County, California, promoted DALITE, a rival management software, to the 58 county California district attorney offices. Larry Donoghue, the man responsible for selecting software used by the L.A. office and later named deputy district attorney for LA County, recalls that, "Jensen called me into his office and I went away feeling what I regarded to be unusual and significant pressure to select the DALITE system." PROMIS, however, had won the Los Angeles County office and, as Bill Hamilton later remarked, "...evidently Jensen bore a grudge." Hamilton recalls, "Jensen was promoted to associate Attorney General in May or June of `83 -- and that's when all the contract disputes came up." Jensen even served as chairman of the oversight committee in charge of PROMIS.

Additionally, Jensen had served with Ed Meese for 12 years in Alameda County while Meese had been a deputy district attorney, and in 1985 Meese promoted him to Deputy Attorney General. He also came under scrutiny during the Senate's Iran-Contra investigations when a memo was discovered from him tipping off Oliver North that the federal prosecutors were aware of his actions. This from a Justice Department official charged with prosecuting the matter. (1)

There was no misunderstanding in the government's handling of PROMIS. The government, or at least a particular segment of it, was out to get Inslaw. Sometimes they even said so in so many words: "On a gorgeous spring morning in 1981, Lawrence McWhorter, director of the Executive Office for USA attorneys, put his feet on his desk, lit an Italian cigar, eyed his subordinate Frank Mallgrave and said through a haze of blue smoke: "We're out to get Inslaw."

"McWhorter had just asked Mallgrave to oversee the pilot installation of PROMIS, a job Mallgrave refused, unaware at the time that he was being asked to participate in Inslaw's deliberate destruction.

"We were just in his office for what I call a BS type discussion," Mallgrave told Wired. "I remember it was a bright sunny morning... (McWhorter) asked me if I would be interested in assuming the position of Assistant Director for Data Processing...basically working with Inslaw. I told him... I just had no interest in that job. And then, almost as an afterthought, he said `We're out to get Inslaw.' I remember it to this day."(2)

The job eventually went to C. Madison "Brick" Brewer. Bill Hamilton previously had fired Brewer for poor job performance. Brewer's new position as hired gun on the Inslaw case for the Justice Department gave Hamilton an early perception that the undue hassle faced by his company came from Brewer's personal vendetta. This was before the revelations concerning Earl Brian, the October Surprise pay-off and the rest of the sordid mess. (3) The Justice Department determined that no conflict of interest existed for Brewer in his new assignment. Brewer would eventually testify in federal court that he received approval from Deputy Attorney General Lowell Jensen, whose vested interest in the rival DALITE software had been damaged by the contract award to Inslaw in the 1970s, for all of his actions regarding Inslaw. Perhaps revenge had transformed Inslaw's contract disputes into a legalistic attempt to trash the company.

Things could never be that simple in Inslaw's case, however. Joined with Brewer's at Justice was Peter Videniecks, the man Michael Riconosciuto had sworn threatened him to not testify before the House Judiciary Committee. Videniecks had his own incestuous connection to Inslaw: he had worked in the Customs office maintaining its contracts with Earl Brian's Hadron, Inc. systems consulting group. Videniecks and Brewer led Justice to demand that Inslaw turn over PROMIS just in case an alleged impending bankruptcy made it impossible for the company to live up to its contracts. Inslaw agreed, but with the stipulation that Inslaw retain all rights to enhancements to the program and that Justice only provide it to the US Attorney's office. Justice, predictably, reneged. It made no effort to determine the validity of Inslaw's claims of ownership to PROMIS enhancements and began to withhold payments, making its subsequent forced march into bankruptcy court a Justice Department self-fulfilling prophecy, and beginning the process that originally had attracted Casolaro's attention. As Inslaw's problems mounted, Earl Brian's Hadron, Inc., made a play to takeover the company through Dominic "We have ways of making you sell" Laiti, another company, SCT, financed by investment bankers linked to Brian, also attempted a buy-out.

Inslaw ultimately hired Leigh Ratiner of Dickstein, Shapiro and Morin, to file suit against Justice to the tune of $30 million. Ratiner established the bankruptcy court as having jurisdiction in the dispute with the unique argument that Justice had seized control of PROMIS. As Inslaw's creditor, this violated a tenet of the Bankruptcy Act forbidding creditors from controlling the property of debtors.(4) The strategy led to Judge George Bason's favorable ruling for Inslaw in 1987, which also led to Bason's early removal from the bench and, according to Ari Ben-Menashe, possibly also to Leigh Ratiner's early retirement by a pay-off to his law firm. (5) Federal district court judge William Bryant upheld Bason's decision after an appeal by the Justice Department, and the Supreme Court denied review in October 1991. A separate appeals court, however, deciding on an appeal made by the Justice Department, ultimately overturned Bryant on the basis of the jurisdictional argument. A three member panel of judges determined that federal bankruptcy court had no jurisdiction in the case. No judgement was ever issued exonerating the Justice Department from its actions in the Inslaw matter.

Casolaro had given some thought to other legal dimensions of the Inslaw predicament. In undated notes, he made an extensive study of computer software and hardware case law, from the point of view of trade secret protection, trademark protection, contract law and patent law and copyright law. From that perspective, he underlined the concept of "a reverse engineering approach" that he felt was applicable to the legal status of PROMIS. Called the "clean room technique", it is used as a method of avoiding copyright infringement in the developing of software products of similar functions. The clean room uses two teams, one receiving and decompiling the protected work legally and "producing a document setting forth ideas and specifications that are in the unprotected idea domain." The second team takes the document and, with no further communication with team one, creates a new product without infringing on the protected aspect of the original software. Casolaro notes that such reverse engineering had been used by the many computer manufacturers to clone Apple and IBM computers. Apple and IBM never pursued legal action against the clean room technique because they feared an unfavorable legal action. (6) Perhaps for similar reasons, the PROMIS problems were never played out in the copyright legal arena.

(1) Mahar, Maggie, "What Really Sparked the Vendetta Against Inslaw?", Barron's National Business and Financial Weekly, April 4, 1988.
(2) Fricker, Richard L., "The Inslaw Octopus," Wired 1.1, Premiere Issue, 1993, p 80.
(3) Richardson, Elliot, L., "A High-Tech Watergate," New York Times, October 21, 1991.
(4) Fricker, p. 101.
(5) Ben-Menashe, Profits of War, p. 141. (6) Casolaro's Notes.

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