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Judge: I won't reveal witnesses because Ulbricht could have them killed
- lstyls 12y agoWhether or not you think Ulbrecht really was a full-on digital gangster, assassinating enemies at will -- I sure don't -- I think we all can agree: it does not bode well for your coming trial when the judge publicly declares you a danger to the lives of witnesses.
- eli 12y agoDo you think he was entrapped or do you think the government manufactured evidence of attempted assassinations out of whole cloth?
- _cpancake 12y agoThere is no circumstance where you can be entrapped into killing someone or ordering the killing of someone.
- tptacek 12y agoI think if you go looking you'll find cases where entrapment is brought up as a defense to murder charges. The bigger issue with entrapment is that it usually requires the defendant to concede the charged crime; to say he was entrapped into ordering a murder, Ulbricht would have to surrender any defense involving him not giving that order, or believing the order was anything other than what it appeared to be.
- ceejayoz 12y ago"Do this or we will kill your family" from an undercover cop?
- akerl_ 12y agoI think you're misunderstanding what entrapment is. What you've described is blackmail.
- tptacek 12y agoNo, that's the example I came up with in my head too. "Entrapment" is what happens when law enforcement coerces someone to commit a crime who was not otherwise inclined to do it. The kernel of entrapment isn't that law enforcement creates an opportunity to commit a crime, but that they accompany the opportunity with some kind of push or shove.
- ceejayoz 12y agoIt's both. It'd be just blackmail if I did it to you. If I were a cop, it's additionally entrapment.
- voxic11 12y agoWhat about if you were caught committing a crime and a detective told you you had to help in a sting operation if you wanted to avoid chargers. In the sing operation you are told to solicit a hit from a suspected hitman. which you do and then are promptly arrested for conspiracy to commit murder. Do you think entrapment should not be a defense in this case? I am pretty sure it's the exact kind of situation the defense is intended to be used in.
- butwhy 12y agoWhy don't you think he was? I personally was all-for his cause (and everything silk road stood for), but I think he's probably guilty of the murder thing and they claim evidence to back it up. Edit: Funny how I'm getting downvotes. Apparently it's soo controversial to make my decision based on evidence. And something that'll he likely be convicted for.
- lsaferite 12y agoIf they had the evidence you'd think they would charge him with attempted murder.
- canvia 12y agoThen why wouldn't they indict him for it? Seems like manipulation of public perception to me. "If You Care About Internet Freedom, Read About Ross Ulbricht's Silk Road Trial NOW" http://reason.com/blog/2014/12/12/if-you-care-about-internet-freedom-read http://reason.com/blog/2014/12/12/if-you-care-about-internet...
- tptacek 12y agoBecause the murder charge is factually complicated, the Silk Road charges are simpler, Ulbricht will serve a long prison sentence if convicted of either set of charges, and introducing the trickier murder charge risks the credibility of the rest of the charges with the jury?
- canvia 12y agoIt is also possible that the evidence was collected illegally.
- tptacek 12y agoAlso true!
- tomp 12y agoThat doesn't sound plausible - US prosecutors are notorious for piling up charges (even when there is little chance they will hold in court), to increase the maximum possible sentence the defendant could server, to make him/her plead guily and settle (e.g. the story of Aaron Swartz).
- tomp 12y agoWow, this really looks like it's going to be a farce trial. I wonder in how many other cases "the accused is dangerous - better keep witnesses secret" rhetoric will be used to pervert justice. Especially if the "murder" accusations can simply be made up!
- deleted 12y ago[deleted]
- diafygi 12y agoIs this common practice for other organized crime trials? When a Mafia don or drug kingpin get prosecuted, do the witnesses remain secret?
- deleted 12y ago[deleted]
- burkaman 12y agoIt must be somewhat common practice, because this is what the Witness Protection Program is for, right? And that program was established under the Organized Crime Control Act.
- diafygi 12y agoWith witness protection, I thought they still had the witness take the stand, then put them into the program.
- burkaman 12y agoI don't know exactly how it works, but the witnesses will at least be under US Marshal protection before and during the trial: http://www.usmarshals.gov/witsec/ http://www.usmarshals.gov/witsec/ In an organized crime trial, I think it would make sense to keep the witnesses secret, but again I don't know the details. And either way I don't think it's necessary here.
- fastball 12y agoYes, but it doesn't do much good if the gangster knows who ratted beforehand, and has them killed. So for Witness Protection, they have you under guard and hopefully under wraps until trial, and then they give you a new identity.
- tptacek 12y agoYes. There are state criminal procedure rules that explicitly spell out when you can withhold the identities of witnesses; see for instance Ohio Criminal Procedure Rule 16 (D)(1). (I found Ohio's because there was a news story about increased use of the rule to protect witnesses there). You can't withhold the identity of a witness at trial, because of the 6th Amendment.
- deleted 12y ago[deleted]
- jbrooksuk 12y agoThis sounds as ridiculous as when Kevin Mitnick wasn't allowed to use a phone whilst incarcerated because it was rumoured he'd set of nuclear missiles by whistling at certain frequencies. Edit: Slightly tongue in cheek.
- tptacek 12y agoIt's clearly not as ridiculous, as there was no basis whatsoever to believe that Mitnick could do anything like that.
- tinco 12y agoI get the idea that it's pretty certain that he actually couldn't, but at that time I don't think you could be certain of anything he might be able to do. Maybe not set of nuclear missiles, but destroying evidence perhaps? Or some other scheme that would only require a simple digital initiation? As I'm sure you are well aware there actually were hackers at the time who taught themselves to whistle at 2600hz. Who knows if someone you have just caught and otherwise know nothing about could do something similar?
- hawkice 12y agoIt's worth saying, as hackers we're familiar with the quotes about, if some old expert says something is impossible, be much more skeptical than when a young person says it is possible. Things like: "It is difficult to say what is impossible, for the dream of yesterday is the hope of today and the reality of tomorrow." - Robert Goddard Are perfect quotes for hackers. Maybe we should ease up on mocking people for believing the whistling nukes thing. The reasons it couldn't have happened involve details more specific than "sounds on phones can't do things on computers", notably because that wasn't true at the time. And experts probably told him that people only have to be clever enough to find a single flaw in a security system to compromise it, and having one insight the creators of the system didn't could lead to compromising it. So the judge hears some seasoned professional say it's impossible... and the same person says when you hear some old professional say something is impossible you should be extremely skeptical. When faced with Armageddon? Let's cut the people involved a little slack.
- rayiner 12y agoReading legal coverage in Wired is like reading technology coverage in People magazine. The witness list will be disclosed, a few days before the trial. In no litigation does either side have an obligation to produce lists of witnesses well ahead of time unless specifically ordered by a judge. Disclosure of witness lists is not required by Federal Rule of Criminal Procedure 16, which governs mandatory disclosures: http://www.law.cornell.edu/rules/frcrmp/rule_16 http://www.law.cornell.edu/rules/frcrmp/rule_16. Local practice, including in SDNY where this trial is held, might hold it customary to make such disclosures, but no specific number of days of advance notice is usually required. It's useful to search "witness list" on that link and read the committee notes on the rationale behind the rule. A good, but somewhat old, article on the subject. http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2743&context=wmlr http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=27...
- clamprecht 12y agoDoes Brady v. Maryland require disclosing witnesses?
- tptacek 12y agoOnly if their identities were exculpatory information, right?
- clamprecht 12y agoI'd like a lawyer to chime in, but if they have previously made statements that could be exculpatory, I think Brady v. Maryland may apply. The point is to give the defense time to prepare, so they aren't ambushed at trial.
- rayiner 12y agoThe notes to Rule 16 discuss the Constitutional issue: > The Committee recognizes the force of the constitutional arguments advanced by defenders. Requiring a defendant, upon request, to give to the prosecution material which may be incriminating, certainly raises very serious constitutional problems. The Committee deals with these problems by having the defendant trigger the discovery procedures. Since the defendant has no constitutional right to discover any of the prosecution's evidence (unless it is exculpatory within the meaning of Brady v. Maryland, 373 U.S. 83 (1963)), it is permissible to condition his access to nonexculpatory evidence upon his turning over a list of defense witnesses. Rule 16 currently operates in this manner. Note that the notes discuss a house version of the rule that included a provision requiring both sides to, at the defense's option, turn over witness lists 3 days before trial. That provision ultimately did not make it into the final rule.
- tomjen3 12y agoCan a higher court overturn that decision? Because if not, I hereby declare the entire trial a sham, a huge attack on his constitutional rights, an insult to the idea of impartial justice and a return to the Star Chamber.
- Voloskaya 12y agoGenuine question: I didn't followed closely this case, and I'm quite surprised to see so much people defending Ulbricht or the Silk Road on behalf of internet freedom. Some people comparing him to kevin mitnick... I mean, ain't we talking about someone who ran a website where you could illegally buy drugs, guns and or even request an assination? Why should we be concerned by his case?
- clamprecht 12y agoBecause he is on trial, which means he has not been found guilty.
- tptacek 12y agoThat's an obligation of the law, but not of public opinion.
- bguthrie 12y agoThe law doesn't do an especially good job of it either. Perhaps it would be better were we all more observant of the principle than we tend to be; the accused is not always guilty. Edit: For context, this is what I had in mind: https://medium.com/for-the-love-of-podcast/serials-big-confession-10611ff75c13 https://medium.com/for-the-love-of-podcast/serials-big-confe...
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- downandout 12y agoThis ruling likely doesn't matter that much, given that Ulbricht and his attorneys surely know who the most important witnesses are, as he knows the people he interacted with. It does, however, show that the judge is willing to believe in the possibility that he's Pablo Escobar 2.0. That probably doesn't bode well for his trial. Even though his guilt will ultimately be decided by a jury, the judge's rulings on motions (such as the pending motion to keep testimony about his attempted murders-for-hire out of the trial) can have a huge impact on the verdict.