The 2nd Circuit Court of Appeals is hearing oral arguments this week regarding an appeal of the conviction and sentencing of Ross Ulbricht, sentenced to life in prison with no parole in May 2015 for various charges connected with operating the Silk Road web site. Silk Road was a "dark web" site where people the world over could trade bitcoin for a variety of goods, not all of them legal.
My detailed reporting from August on the arguments that Ulbricht's defense is relying on in the appeal.
As Reuters reports from the courtroom where the appeal is being heard, the judges on the three-judge panel seem "skeptical" about overturning the conviction entirely, although Ulbricht's lawyer Josh Dratel insists that his inability to raise questions in the original trial about the criminal behavior of two of the agents who investigated Ulbricht prevented him from having a fair trial.
But Reuters reporter Nate Raymond detected more possible traction on the question of the unjustness of Ulbricht's life sentence without parole.
Particularly at issue was the fact that sentencing U.S. District Judge Katherine Forrest weighed in her sentencing statements "from the parents of two people who died from overdoses on drugs sold on Silk Road" (or so they claimed).
Raymond reports that:
U.S. Circuit Judge Gerald Lynch said that may have resulted in an "enormous emotional overload" at sentencing.
"Doesn't that put an extraordinary thumb on the scale that shouldn't be there?" he asked Assistant U.S. Attorney Eun Young Choi.
Andy Greenberg at Wired, who was the first reporter to get an interview with Silk Road's then-pseudonymous operator "Dread Pirate Roberts" who the government insists was Ulbricht, also reports from the hearings with more details on the sentencing question and Judge Lynch's doubts:
"Does this [testimony] create an enormous emotional overload for something that's effectively present in every heroin case?" Lynch asked at one point. "Why does this guy get a life sentence?"
The prosecution even defended the absurd water-muddying the feds pulled on Ulbricht by talking about, but never trying him for, allegedly launching murder-for-hire schemes, for murders that never occurred. Judge Forrest acted more or less as if those accusations were proven in her sentencing statement. Even so:
Dratel responded that murder-for-hire typically carries a ten-year sentence not life. "Murderers don't get life sentences," Dratel said. "People whoactually commit murder."
Greenberg says the judges did not seem too concerned with what effect the criminal behavior of investigators Carl Force and Shaun Bridges might have had on the case.
But when it comes to the sentence, Dratel may have scored points with the panel by:
pointing out that life without parole went beyond even the prosecution's request that the judge impose a sentence "substantially above the mandatory minimum." In fact, the Southern District of New York, where Ulbricht's trial occurred, has a reputation for relatively lenient sentencing, with around 75 percent of cases receiving less than federal sentencing guidelines.
All of that seems to suggest that if Ulbricht has any chance of a new trial, it may not come from attacking the judicial process or the evidence that convicted him. Instead, his last hope of escaping a lifetime in prison may come from the severity of the sentence itself.