Ross Ulbricht’s legal defense filed a reply to the government as part of his appeal this week. On behalf of Ulbricht, who was sentenced to double life in prison without parole for operating the Silk Road dark marketplace under the alias Dread Pirate Roberts (DPR) more than a year ago, attorney Joshua Dratel disputes the fairness of the trial. The defense has requested that Ulbricht’s “convictions should be vacated, and a new trial ordered, or that he be re-sentenced before a different district judge.”
Ulbricht's defense had issued an initial appeal earlier this year, which was answered by state prosecutors in late May. This week, the defense responded to these answers in a brief submitted to the appellate court, hoping to prove — most importantly — that Ulbricht's Fifth and Sixth Amendment rights were violated.
To learn more about the appeal, Bitcoin Magazine reached out to Ulbricht's mother, Lyn Ulbricht, who's been fighting for her son's rights ever since he was arrested in October of 2013.
Right to a Fair Trial
The overriding issue in the appeal is Ulbricht's right to a fair trial and right to present a defense, as established by the Fifth and Sixth amendments to the United States Constitution. Ulbricht's defense maintains that these rights were denied to Ulbricht. Most importantly — but not exclusively — as evidence pertaining to corrupt agents involved in the case was not allowed to be brought forth in court.
This evidence, most importantly concerns special agents Carl Mark Force IV and Shawn Bridges, both of whom confessed to corruption and are currently serving time in prison. State prosecutors were aware of both these cases at the time of Ulbricht's trial. One of them was also known to the Ulbricht defense at the time, while the other was not — a deliberate non-disclosure, according to Ulbricht's defense.
As such, the court denied Ulbricht's defense the opportunity to inform the jury about both corrupt agents along with all related information potentially relevant to the case, which Ulbricht’s defense maintains is illegal as per the Brady Rule.
Lyn Ulbricht explained:
“A person in trial has to be convicted beyond a reasonable doubt. If this evidence was allowed to be presented, it's a question in my mind whether the jury wouldn't have had some doubt about Ross's role. Ross's lawyer thought to have one of the corrupt agents in the trial but the government said that would jeopardize their investigation into this corruption and claimed it's a separate case that has nothing to do with Ross. However, going through the documentation, Ross himself found that he was effectively arrested by [Special Agent] Force; Force was very much involved with the investigation. Of course, that information would have been very relevant.”
The information pertaining to the corrupt agents is not the only information that was withheld from the jury. Most importantly, Ulbricht's defense maintains that while Ulbricht did establish the website, he did not operate it for most of its existence; rather, there were several DPRs. In a bombshell revelation at the time of the trial, it was revealed that state prosecutors suspected at least one other high-profile name to operate under the alias: former Mt. Gox CEO Mark Karpeles. Although questioning regarding the potential involvement of Karpeles was initially allowed in court, it was deemed irrelevant by the sitting judge later on in the trial.
Fourth Amendment Violation
Ulbricht's defense also argues that his Fourth Amendment rights were breached, claiming state agencies did not have the proper warrants to investigate Ulbricht in the manner that they did.
The most important breach, according to the defense, regards Ulbricht's digital property rights. Prosecutors used general warrants to search through Ulbricht's entire laptop as well as Facebook and Google accounts. The legality of this practice is questionable, as it lacked particularity and has, therefore even drawn attention from civil rights groups.
“The National Association for Criminal Defense Lawyers and the EFF [Electronic Frontier Foundation] both have joined the brief, saying these warrants were illegal,” Lyn Ulbricht explained. “General warrants mean that the government can go through your home, from attic to basement, looking for whatever they can find; rummaging around. In this case they rummaged around Ross's digital house. But the Fourth Amendment requires particularity. It requires these agents to say exactly what they're looking for.”
There is also a question regarding validity of digital evidence in itself, which includes most of the evidence that was used to convict Ulbricht. Since the corrupt agents had log-in credentials and access to many parts of the Silk Road backend, chat logs and other material may have easily been fabricated or edited, the defense claims. This is especially relevant since it's clear now that Bridges, in particular, took deliberate affirmative steps to deflect blame from himself onto others.
State agents also applied advanced techniques to wiretap and geolocate Ulbricht in order to arrest him. Much like applying these techniques to mobile phones, the defense argues this was unlawful, too, without very specific and required warrants.
As another key main point, Ulbricht's defense argues that the sentencing was “shockingly high” and exceeds the bounds of reasonableness. The double life sentence Ulbricht is currently serving, his lawyer points out, “dwarfs the sentences imposed on other key players” and “far exceeds even the sentence requested by the government.”
Ulbricht's defense specifically argues that the basis on which he received the severe sentencing was shoehorned in by the judge, particularly as it relies on a couple of drug overdose-related deaths. According to experts, however, it cannot be established that these overdoses were caused by drugs purchased on the Silk Road website at all.
According to Lyn Ulbricht:
“At the trial there were six overdose stats; claims that people died from drugs they bought on Silk Road. A 30-year experienced pathologist said there's no way you can say these drugs came from Silk Road. Yet the judge relied on this for her sentencing, basically creating her own legal standards.”
Additionally, the judge set out to make an example of Ulbricht, which has no basis in law. Such a deterrence penalty, moreover, has proved to be altogether ineffective, as dark net markets have only grown in number, size and scope since Ulbricht's conviction.
Likewise, the judge took into account an alleged murder-for-hire plot, supposedly paid for by Ulbricht to protect Silk Road customer identities. These murders, however, were not only never actually carried out, they were not part of the case against Ulbricht. As such, his defense maintains that these murders-for-hire remain unproven in the court of law and should not weigh into the sentencing.
Furthermore, the defense claims that Ulbricht's heavy sentencing was ultimately the result on the judge's assessment that Ulbricht would pose a risk to society if he ever got out of prison. This assessment is completely unwarranted, Lyn Ulbricht believes.
“With this sentence, there's a precedent set for a non-violent person, who's a first offender, with no evidence at all that he is a danger to anyone — certainly after the mandatory memo of 20 years that he would come out at the age of 50, with no internet access and be a danger on the internet,” she said. “And he's certainly been shown not to be any sort of danger off the internet … it's so over the top. They made it clear they were just using him to set an example.
“Some people think Ross is a villain. Some people think Ross is a hero. Some people have never even heard of him,” Ulbricht’s mother said. “But whatever you think, or believe of the government's 'evidence,’ it should concern all Americans that a fair trial is something that needs to be protected and defended. Every trial that is unfair and that is allowed to stand, I personally believe, takes us one step closer to tyranny.”
It is now up to an appellate court to decide whether there should be a reversal of the trial. Appellate courts do not re-hear the case itself but rather focus on questions of law and if it was upheld and applied correctly.