Silk Road: New Trial Requested by Ross Ulbricht's Attorney [UPDATED with Comment from Lyn Ulbricht]

Claims possibly exculpatory evidence was illegitimately held back or released too late, and that Fourth Amendment issues remain unexplored.

Joshua Dratel, the lawyer for Ross Ulbricht in his trial over various charges related to running the website Silk Road, has filed a motion for a new trial after Ulbricht's conviction last month. (This is a separate process from an appeal of the initial guilty verdict, which is still expected to happen before the scheduled mid-May sentencing of Ulbricht.)

Dratel's filing. It also moves for a reconsideration of a previously filed motion to suppress certain evidence during the trial, which failed during the first one.

The new trial motion is "premised upon the government's failure to provide exculpatory material in a timely manner." The motion to suppress is "based on information learned during trial, either through testimony or material produced by the government."

That first obligation falls under what's known as the "Brady Rule" after the 1963 case in which it was established that the prosecution is obligated "to provide a criminal defendant with favorable material evidence in its possession." Dratel says the evidence need not be something certain to exculpate the defendant, but merely create "a 'reasonable probability'' of a different result." Said disclosure must be in time for effective use of the defense at trial, Dratel argues with supporting quotes from other cases in his filing.

Dratel writes that:

within the 5,000 pages of 3500 material [so-called as it is an obligation under the Jencks Act, 18 U.S.C. §3500] for the government's first witness, Homeland Security Investigations Special Agent Jared Der-Yeghiayan, produced less than two weeks prior to trial – and, in some instances, 30 months after the information was memorialized by SA Der-Yeghiayan (and in most instances, close to or more than two years after) – a substantial volume of exculpatory material and information. Other exculpatory material was 2 included within the 3500 material for Internal Revenue Special Agent Gary Alford (which was produced January 6, 2015)….70 separate documents (some consisting of multiple pages) in the 3500 material contained exculpatory material and information that was not provided to the defense at a time in which it could be used effectively at trial.

His defense was further hobbled, Dratel writes, because:

between December 31, 2014, when the government began to produce 3500 material to the defense – commencing with a 5,000-page production for its first witness, Special Agent Jared Der-Yeghiayan – and the start of the trial, January 12, 2015, the defense was saddled with an overwhelming number of new and modified exhibits. In total, the government produced approximately 145 new exhibits during that time period, and modified between 50 and 100 others…..

the number of new Government Exhibits nearly doubled in volume after trial started, with many of those new exhibits provided to the defense only minutes or hours before court began session, or before they would be introduced by the government through a particular witness. For instance, in just the final week of the government's case, between January 25, 2015, and January 28, 2015, the government produced to defense counsel for the first time approximately 44 new exhibits.

Regarding the motion to suppress evidence, Dratel notes among other points that revelation about the government's surveillance methods "raises some novel Fourth Amendment issues, and also provides further evidence that the government discovered the Internet Protocol (hereinafter "IP") address for the Iceland server ending in ".49" through warrantless TOR network surveillance."

Accounts of Dratel's motion and its chances from Gizmodo, Forbes and Bitcoin Magazine.

Alex R. Bauer, a former roommate of Ulbricht's in one San Francisco apartment, has written an account of their relationship for Vice Motherboard. It's an interesting read; a couple of telling quotes:

It's hard to imagine how Ross is coping with this judicial soap opera. He's a chill guy, an Eagle Scout with a heart of gold. An admirable dude who, while we lived together, was fond of hiking and playing the djembe. He is well-spoken and humble, with asone reporter described, "the kind of haircut you'd find on children in Norman Rockwell paintings." He is, in all honesty, a bit of a nerd. I once lent him my copy ofGödel, Escher, Bach, cognitive scientist Douglas Hofstader's 777-page opus exploring the fundamental concepts that allow the existence of intelligence, symmetry, and mathematics. He ended up reading more of the book than I ever did. He definitely understood it better. It's needless to say that Ross prefered a quiet night in to an evening at the club….how could such a benign guy be brazen enough to allegedly order murder-for-hires? ….

 The more I recognize the divide between an author and his username, the more the evidence points towards not only Ross' guilt but also his nai?vete. It's this childish quality, the same wide-eyed belief of an inherent virtue within the world, that makes Ross, for the most part, an honest man and, for a period of time, someone I considered respectable. I don't think Ross intended to hurt anyone with his "economic simulation." But he did lie to us. And although I cannot rationalize his actions, I wish it were the Dread Pirate Roberts, not Ross, sitting in that cell. 

My December Reason feature on the interesting world Ulbricht created and how it fell apart.

UPDATE: Ross Ulbricht's mother, Lyn Ulbricht, had this to say in excerpts from an emailed response to former roommate Bauer's Vice article. She is addressing Bauer:

You assume that the prosecution's evidence is valid and that the defense had nothing more than a "skeleton of an argument." However, you can't know this because the defense was blocked from pursuing its case. Exculpatory evidence was stricken from the record and the defense could not pursue it or mention it in its summation….This is also addressed in the defense's post trial motions. 

You say Ross "still has to stand trial for murder-for-hire charges in Baltimore, Maryland, at an undetermined date." On what do you base this? The fact that those charges were not part of the NY case shows they have no merit according to Ross' lawyer. An indictment is simply an accusation that requires no proof. This one is over 16 months old.  I highly doubt he will face these charges at a future trial and you have no basis to say he will….

And how can you speak for "his family." We have never discussed this with you. We are not "troubled" by the allegations of murder-for-hire because we do not for one minute believe them….

You wrap up the article by saying Ross "did lie to us." About what, pray tell? You have no idea of what's underneath the government's carefully crafted and censored narrative and I suggest you approach this, and anything else you hear from them in the future, with more skepticism.