Posted by: Allen Hoffmann, JD
January 27, 2015
Guilty of what?
- More articles about the Silk road trial at this tag: #SilkRoadTrial
Since the first day of the trial of Ross William Ulbricht in a Manhattan federal courtroom, the defense has been prepared to concede that this was a man guilty of something, whether the jury wanted to regard it as guilt morally or ethically, if not at law; he had, indeed, established Silk Road. Sure, he had created it, but the defense has sought to proffer, elicit and advance the notion that after he had created the site both on its own motion and from witnesses. We have discussed previously the manner in which the defense has sought to exculpate Ross William Ulbricht as being an approach which does not seek to establish innocence, but rather, undermine the capacity of the prosecution to establish guilt beyond reasonable doubt. Has this strategy backfired?
The alternate DPR defense narrative
The ultimate thrust of the defense strategy is that Ulbricht;
- created Silk Road
- handed it over to third parties as yet not established
- was gone for the duration of anything tantamount to conspiracy or worse
- was then lured back, presumably by contrivances of the new Silk Road ownership
- only to be arrested in a California library.
Is this storyline which the defense is attempting to build in the minds of the jury outside the realm of possibility? No, it certainly is not. But its getting increasingly likely that its not a version of events which the defense is likely to be able to support, because the alternate DPRs the defense is proposing to rely on in painting this picture are evaporating.
DPR alternatives are now mostly gone, despite a promising start.
Early in the trial, the defense scored a major coup, eliciting from the lead prosecution witness and undercover moderator “cirrus”, aka “scout”, aka DHS Special Agent Jared Der-Yeghiayan that there were suspicions that Mt. Gox founder Mark Karpeles was the actual DPR. The Government saw its capacity to prove beyond reasonable doubt that Ulbricht was the one and only DPR slipping away, as evidenced by a day of arguments on the matter xx, and after working hard over Martin Luther King day to put together a missive, the greater majority of this testimony was ruled retrospectively inadmissible. The practical effect of this ruling is that the initially previously feasible alternate DPR, in the form of Mark Karpeles, is currently out, unless the defense can find a new way in which to introduce him into their case.
Defense’s response to exclusion of relevant DHS testimony.
Apparently, the majority of the morning of 1/20 was taken up with a very adamant Joshua Dratel’s plaintive appeals that the evidence should remain open to the jury, even going so far as to use such emotive language as describing the judge’s actions as ‘completely evisecerat[ing] the defense after the face’. He further stated that he would “have to go back and reconstruct” and “I’m not sure I can proceed”.
What it means for the defense’s strategy.
What we can glean anecdotally as regards the defense’s reliance on this line of reasoning is quite telling; the fact that defense counsel Joshua Dratel was not prepared to let go of the fact that the Government sought, and successfully procured, the exclusion of testimony, and the fact that he actually suggested he may not have been in a position to proceed on 1/20 after Judge Forrest’s ruling is that this was an exceptionally big deal to the defense, and perhaps the main crux of their case, as opposed to something relatively tangential. Any half decent defense lawyer will not make a morning of admissibility of an issue without a very good reason.
The defense’s approach considered in light of the Karpeles evidence exclusions.
The defense’s reliance on making concessions as to Ulbricht’s initial involvement in Silk Road puts him squarely as having been the originator architect of the site, and now, with no as yet viable (or for that many, any) alternative party to put behind the DPR username owing to the ruling out of the Mt. Gox connection, the defense is at a decided disadvantage as the second full week of the trial gets underway. Dratel made reference in subsequent cross examination to a person named “Anand Athavale” and inquired as to whether or not Der-Yeghiayan had looked at his LinkedIn profile, with Der-Yeghiayan confirming that he had, but seemed to make very limited headway. The ‘alternate DPR’ theory was clearly primarily dependent on the Karpeles line of reasoning.
Where to from here?
Its plainly apparent that much was made, as far as the defense’s preparations went, of the Mark Karpeles connection. The defense will have to take a new approach as a matter of urgency, and the vehement approach defense counsel Joshua Dratel took in protesting the retrospective invalidity of all the ‘Mt. Gox’ evidence suggests that the defense had placed heavy very heavy reliance on this avenue of attack on the Government’s assertions that Ross William Ulbricht is, infact, DPR, and always was. Without a viable alternative DPR at present, and considering the as yet uncontested issues raised by what is alleged to be Ulbricht’s journal, the defense is now in a very different place regarding its reasonable doubt strategy than at the end of week one. Do they have a back up plan? And what does the defense have to say about the apparently astonishingly detailed journal? We’ll see this week.
The practical impact of the exclusion of Karpeles as DPR evidence
Judge Forrest’s directions to the jury may well be that they are required to disregard, from an evidentiary perspective, tracts of testimony they heard in week one, but in practical terms, the jury members’ memories cannot be erased. The impact of what was undoubtedly a powerful admission is not mitigated purely by a direction that it be disregarded from an evidentiary perspective. It was a big deal, a big enough deal to keep them out of the court room for protracted periods whilst admissibility was fought over tooth and nail. Those jury members will recall, whether they want to or not, that Joshua Dratel elicited the name of a DPR suspect who pre-dated Ross Ulbricht. The prosecution must prove that Ross Ulbricht is guilty beyond reasonable doubt; and its not beyond the realm of possibility that despite being directed to disregard it, evidence given by a DHS agent that, yes, they did have another suspect, might sway a juror or two’s vote, when the time comes.