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The legal battle continues.
The trial of Ross Ulbricht, accused of being the mastermind behind the Silk Road black market, has seen a series of daily battles waged over just how the defense is allowed to make its case to the jury.
So far, Ulbricht’s side has lost at almost every turn.
Joshua Dratel, the lead defense attorney, has repeatedly been blocked from asking questions that aim to call into doubt the authenticity, reliability, and meaning of dozens of pieces of government evidence that suggest Ulbricht is guilty, as well as questions about the multi-agency investigation into his client.
“Cross examination is about context, not about being limited to what the prosecution asks when they only ask leading questions.”
The judge gave various justifications for denying Dratel’s questions, but one common denominator has stuck out. Dratel’s approach thus far has been largely “beyond the scope of the direct examinations,” Judge Katherine Forrest has repeatedly said, and thus cannot be brought up until the prosecution is done presenting their case.
Dratel, often visibly frustrated to the point of looking shocked in court, characterized Forrest’s decisions as “improper curtailment of my cross examination.”
Today, three weeks into the trial, Dratel cross examined Internal Revenue Service Special Agent Gary Alford following the prosecution’s direct examination.
Again and again, Dratel attempted to ask Alford about the broader investigation Alford was a part of. Dratel brought up signed and sworn statements that Alford made regarding the investigation—who else was suspected, for instance, and how did investigators gather certain information about Ulbricht—but was shot down when the prosecutor objected and the judge sustained. The same thing happens dozens of times every day in this trial.
The justification offered by Forrest is that, because the prosecution never brought up specific facts that Dratel was asking about, Dratel was wandering “beyond the scope” of the direct examination.
The trial is split up into two parts: The prosecution’s case and the defense’s case. For three weeks, the prosecution has been calling witnesses, presenting evidence, and making its case to the jury. For the duration of that time—which is expected to last another week at least—the defense must stay pretty strictly within the bounds of what the government presents to the court.
Anything else, Judge Forrest ruled, must be saved for when the defense is making its case. She’s cited a mountain of case law to back up her opinion. Dratel has vehemently disagreed.
“The defense is trying to insert their case in this circuitous way,” Assistant United States Attorney Serrin Turner argued. “It confuses the witness, and it’s hearsay.”
Dratel, who shrugged and seemed to do all he could to not roll his eyes, said it was “contrary to case law and due process” to not allow him to ask law enforcement about sworn statements they made about their investigation into Silk Road.
The Ulbricht family believes Dratel is fighting for no less than their due process rights. And they are criticizing the prosecutors on a daily basis on their social media accounts.
Dratel even called for a mistrial last week when Judge Forrest repeatedly told him, in front of the jury, that he had to call his own witnesses in order to question them on subjects the prosecution had not already presented. By doing so, Forrest undermined her own message to the jury that the burden of proof is on the prosecution, not Ulbricht’s defense, and seemed to suggest to them that the defense had to bring their own witnesses and evidence to bear if they wanted to stray from the prosecution’s version of events.
As a result, Judge Forrest issued instructions to the jury, reminding them that the defense was under no such obligation “no matter what I said before.”
When he is allowed to follow through on his strategy, Dratel attempts to undermine the value of the government’s evidence in the eyes of the jury. He has repeatedly and indirectly suggested that much of the evidence that is intended to point clearly to Ulbricht is unreliable, unauthenticated, and suspicious to the point of unbelievable.
When the prosecution brought up accounts that Ulbricht allegedly asked for tech support on the question-and-answer website Stack Overflow in 2013, they showed that for a brief time the user’s email was [email protected] The username and email address was changed within a minute of asking about technical details behind Tor hidden services—websites, like the Silk Road, that are only accessible through the Tor network—to [email protected]
“[The email change] establishes, without any question, for anyone subpoenaing the records, that frosty is Ross Ulbricht?” Dratel asked Alford, the IRS agent. “It’s kind of like a blinking neon arrow [to Ross], isn’t it?”
Initially, Dratel aimed to heavily feature Ulbricht’s libertarian political views in his defense. Before the FBI shut it down in 2013, the Silk Road was always framed as a political revolution above all else. (All else being the once-largest online marketplace for illegal drugs on the Internet.) The prosecutors asserted Ulbricht’s politics were “plainly not relevant” and had them largely excluded from the trial.
As the trial began, defeats like these grew into a pattern.
“The defense is trying to insert their case in this circuitous way. “It confuses the witness, and it’s hearsay.”
In the first week of the trial, much of Dratel’s defense—which revealed that Mark Karpeles, founder and former CEO of Bitcoin exchange Mt. Gox, was subject to a lengthy investigation as a possible alternative suspect—was eventually struck from the record after the judge deemed almost the entire line of questioning beyond the scope of the trial. Since then, Forrest has been more proactive in limiting what Dratel is allowed to speak about with witnesses.
When Dratel later tried to ask several agents about how they verified the contents of Ulbricht’s laptop, Judge Forrest stopped him over and over again.
Forrest has repeatedly instructed Dratel to stay on a tight course, so as not to stray beyond the scope of what the prosecution’s direct examination of witnesses covered.
“It’s important to limit scope during the cross examination,” Forrest said today, “so the jury isn’t brought down different roads and byways, so their time isn’t wasted.”
“The entire scope of the investigation is subject to bias, in the sense that, once they found one thing pointing to Ulbricht, [they carried on in that direction],” Dratel argued. “Cross examination is about context, not about being limited to what the prosecution asks when they only ask leading questions.”
Letting out a few of her own signs of frustration at having to repeat herself, she said she heard Dratel’s arguments and did not agree with them.
Instead, she said, if Dratel wants to ask the investigating agents more, he would have to bring them as witnesses during the defense’s case. If they were deemed appropriate, they would be sitting in the witness box once again to answer whatever Dratel chooses to ask.
The defense’s case is expected to commence next week.
Patrick Howell O'Neill is a notable cybersecurity reporter whose work has focused on the dark net, national security, and law enforcement. A former senior writer at the Daily Dot, O'Neill joined CyberScoop in October 2016. I am a cybersecurity journalist at CyberScoop. I cover the security industry, national security and law enforcement.