The Dread Pirate Ulbricht’s Hail Mary

I’m not a lawyer, but I’ve been watching the Ross Ulbricht, aka the Dread Pirate Roberts, case since the moment the FBI tackled him in the library. Although the actual trial proved both amusing and informative, most of the critical pieces took place long before, in seemingly dry court filings. In particular, Ulbricht’s attorney threw away the case back in October.

Now that the trial is over, once again its time for significant legal filings. And Dratel, the Dread Pirate’s attorney, has clearly outdone himself in futile posturing. He wants a new trial, a retry on the motion to suppress, and an on-the-record statement of what Ulbricht’s Bitcoin expert’s opinion.

The motion for the new trial might not be futile, but probably is. Quoting the defense’s own citation:

“strictly speaking, there is never a real ‘Brady violation’ unless the [Government’s] nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.’” 753 F.3d at 92, quoting Strickler, 527 U.S. at 281.

The log of purported Brady violations (where the prosecution fails to promptly turn over exculpatory evidence to the defense) is generally weak tea, for the most part a rehash of the “Magical Tux Didit” failed investigation. The judge shot this down already, as there was no actual evidence that Mark Karpeles was the crook responsible for actually operating Silk Road. (Karpeles other potential criminal prosecution is another story: the reek around Mt Gox wafts all the way from Tokyo to my office). Its going to be tough to make the case that the Brady violations actually contain really exculpatory evidence.

Even if the defense makes the case that this would be exculpatory and a miracle causes Judge Forrest to grant a new trial, the motion to suppress remains an insurmountable hurdle. So the second part of Dratel’s motion involves relitigating the motion to suppress.

Now I agree with the defense: agent Tarbell of the FBI almost certainly lied to the court and almost certainly never got a warrant for the FBI’s hacking activities. Although to be pedantic it probably wasn’t a Tor deanonymization, as otherwise the FBI wouldn’t have seemed to need to hire CERT/CC. But it doesn’t matter: the defense never claimed a 4th amendment interest in the server when they had the chance!

Expect the prosecution to reply with a lot of infuriating language about about how the FBI acts to discover an overseas server doesn’t matter like they did the last time, and to also include the annoyingly apt phrase that “you can’t unring a bell”, referring to the defense’s “fatally deficient motion” the first time around.

The former I disagree with, but the latter is the killshot: the defense’s new motion can’t correct the fatal defect. If the defense claimed the server, this new motion might have a ghostly chance of success. But having failed to claim it when they had the chance, their new motion is still fatally deficient.

The final portion is a declaration of what Andreas Antonopoulos was going to testify to. I suspect this is mostly attempting to provide grounds for the appeal, but its pretty transparent bovine excrement: technically true but designed to confuse the jury: yes, someone could easily move an old Bitcoin wallet onto someone else’s computer, but Ulbricht was caught, red handed, with the Silk Road treasure.

And again, the prosecution will reply with both “you didn’t get your stuff done on time then, why does it matter now?” and also note how different Antonopoulos’s proposed testimony is compared with the initial notice: there is nothing about trading, mining, or other alternate explanations about how Ulbricht posessed some $20,000,000 in Bitcoin when the FBI tackled him.

Dratel is certainly making the prosecution work for this, but it will almost certainly fail. And in addition to shoveling more debt onto Ulbricht’s mother, it may actually play against Ulbricht in the long run.

The failure to claim the server remains the fatal mistake. If Ulbricht could convince the court that Dratel was incompetent, a new trial might actually work. Yet with each new filing, it becomes clear that Dratel is a good attorney who made some incredibly stupid strategic errors: hardly the mark of ineffective council.