CHATTANOOGA, Tenn. – A former Tennessee college student convicted of hacking Sarah Palin's e-mail in 2008 is seeking probation but federal prosecutors contend he should go to prison for trying to "derail a national election."
Prosecutors in a court filing ahead of David Kernell's Nov. 12 sentencing hearing in Knoxville recommend 18 months imprisonment "to reflect the seriousness of the defendant's conduct, promote respect for the law and provide just punishment."
Defense attorney Wade Davies disagreed, filing a motion that says probation is justified, partly because of the 22-year-old former University of Tennessee student's youth. Part of the motion for probation is filed under seal. Documents say only that it includes protected health information from treatment Kernell received as a juvenile.
A jury in April convicted Kernell on charges that include unauthorized access to a protected computer and destroying records to impede a federal investigation. The maximum possible penalty for destroying or concealing records to impede an investigation is 20 years, according to the government's sentencing memorandum. Applying sentencing guidelines to Kernell, however, the memorandum says the penalty ranges from 15 months to 21 months.
Davies said that instead of destroying evidence as prosecutors contend, Kernell helped preserve computer records and left an easy trail for them to follow.
Jurors at the trial acquitted Kernell of wire fraud and deadlocked on an identity theft charge.
"The public humiliation, trial, and felony conviction are enough to deter any future violations of the law," according to the defense motion.
Neither Davies nor the chief prosecutor at the trial, Assistant U.S. Attorney Greg Weddle, returned telephone messages seeking comment Monday.
The former Alaska governor and her daughter Bristol testified that the hacking, followed by Kernell's online bragging and providing the password and Palin family telephone numbers to others, caused them emotional hardship. Palin previously declined comment about Kernell's sentence and said it should be up to the judge.
The prosecutors' pre-sentence filings said Kernell, a Democratic legislator's son, said: "I read through the e-mails ... all of them ... before I posted, and what I concluded was anticlimactic, there was nothing there, nothing incriminating, nothing that would derail her campaign as I had hoped, all I saw was personal stuff, some clerical stuff from when she was governor ... And pictures of her family ... I read everything, every little Blackberry confirmation ... all the pictures, and there was nothing..."
Prosecutors said Kernell had no prior criminal conviction but their sentencing memorandum includes a reference to 2001 when Kernell and another student at a middle school guessed a password and gained access to school records that included lesson plans. The memorandum shows Kernell was "determined to be responsible" for the unauthorized access.