Justice Condemned: The Ross Ulbricht Case

RUJustice

I’ve been in and around the US justice system for most of my life. I’ve always had relatives and friends who were lawyers, and I worked as an expert witness for more than 30 years. And however much I may disregard the state as an institution, I hold great regard for the common law, upon which the US justice system was based.

So, when I tell you that Ross Ulbricht’s prosecution shocked me, please understand that this is not the judgment of an antagonist or a neophyte.

Just the Facts

I’m obviously passionate about this subject, and I think you’ll shortly see why. But I also want to present the facts clearly. And so I’m going to use blunt and honest wording, but I’ll also give you links, so you can assure yourselves that my statements rest on more than passion.

Here are the things you should know:

  • The FBI’s explanation of how it found the Silk Road server were lies. What they really did was almost certainly parallel construction, known in honest speech as “lying to the court.”

  • The case was clearly politically driven. (See here and here.)

  • A mere two months before Ulbricht’s arrest, the lead DHS investigator swore under oath that Mark Karpeles (of Mt. Gox infamy) was the “Dread Pirate Roberts” who ran the Silk Road darknet site.

  • Two federal agents investigating the case pled guilty to corruption related to it and are now in jail.

  • The government spied on Ulbricht’s internet traffic (along with others who used the same router) without showing probable cause and without a warrant.

  • The judge altered the trial transcript. The only link I have for this is from Lyn Ulbricht (Ross’s mom), but I was sitting in the same courtroom and heard the same thing. The judge said (and this is close to verbatim), “Last Thursday when agent Der-Yeghiayan was testifying under cross examination, I thought the prosecutors could have objected more. And so, over the weekend, I edited the trial transcript and removed all the testimony that could have been objected to.” The judge then went on for a long time, trying to explain why this was okay, even if it didn’t seem like it.

  • The prosecution’s forensic evidence was below amateur level. The tools used were bad choices, and when the metadata (the times and dates you see when you open File Manager) are exactly the same for every file, it’s inescapably clear that they’ve been altered. To then submit them as evidence is laughable… or would be if so much wasn’t at stake.

  • Ulbricht was neither indicted nor convicted for some highly publicized murder-for-hire charges, but he was sentenced based upon them.

  • Ulbricht’s sentence was beyond extreme: Two consecutive life sentences plus 40 years… for a nonviolent, first-time offender. And one who is seemingly loved by everyone who knows him.

There are more problems with this case, but I’ll stop my list here.

And Now?

A petition now stands before the Supreme Court, arguing two constitutional points:

  1. Whether the warrantless seizure of an individual’s internet data without probable cause violates the Fourth Amendment.

  2. Whether the Sixth Amendment permits judges to base an otherwise unreasonable sentence upon uncharged crimes.

Five amicus briefs, signed by 20 organizations, have been filed in support of the Supreme Court petition.

So, will the supremes pull off a stick-save? I certainly hope so. But even if they do, I’ll never look at justice in America the same way. What if Ulbricht’s parents hadn’t risen, heroically, to his defense? And what if the crypto community hadn’t donated substantially?

When I was a schoolboy, we were taught about Soviet show trials, where the verdict was decided beforehand by apparatchiks and a trial was staged to legitimize it. I never expected to see such a thing in America… but I did.

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Paul Rosenberg
www.freemansperspective.com

Justice Without State

justiceYou always know you’re venturing into interesting territory when you arouse defenses like “Because!,” “You’re an idiot,” or “Everyone knows…”

Such are the defenses that pop up when touching the concept of justice separate from the state. It was, in my experience, something of a verboten subject, considered ridiculous and rude at the same time. It was – again in my personal experience – something that everyone just “knew” was impossible and which they also knew was dangerous.

And yet, they had no real reasons upholding their opinions. Certainly they struggled to assemble reasons once I said, “I don’t think so” (humans are really good at that), but it was very clear that the decision was made first and the facts assembled second.

I was thrust into this subject quite a few years ago, as cypherpunk projects ran into the reality that humans are unfinished creatures and sometimes end up in disputes with each other. Once cyberspace appeared, quite a few of us realized that it was a kind of terra nova, the first new continent opening since 1492. (1606 for Australia.) We wanted to do something good with it, something better than the territorial overlords were doing to humanity.

To give you some feel for the moment, here is a passage from J.P. Barlow’s A Declaration of the Independence of Cyberspace, published in 1996:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

So, with a separation imperative in mind, we were confronted with the fact that some kind of law or justice service was necessary. And so, I began digging into the subject.

What I Found

I learned that justice without state was common throughout history. And more than that, it seemed to have worked quite well over long periods of time. That seems utterly impossible to any mind that has gone through the modern school “curriculum,” but the facts remain, no matter how many knees may jerk at the thought.

Here, briefly, are some of the instances I found:

The Greek reset and the early Hebrews

At about 1200 B.C., nearly every civilization in the Eastern Mediterranean was plucked out by the roots. (Egypt just barely survived.) Then, for some 400 years, government was all but absent, and the cultures reset. This is commonly called the dark ages of the Greeks.

During this period, Greek law was nonexistent, and justice was handled almost on a family level. We haven’t a great deal of written matter from the Greeks, but we do from the early Hebrew civilization, which thrived during this window of time.

The early Hebrews – for some number of centuries – were a tribal anarchy, with no state at all. Aside from religious rules, their “laws” amounted to don’t lie, steal, or kill; don’t oppress the weak; don’t speak derogatorily of others; don’t take revenge; and don’t hold a grudge. And they were far more interested in justice than in law. For example, we find these passages in their earliest writings:

Defend the poor and fatherless: do justice to the afflicted and needy.

Justice, justice shalt thou pursue.

Early medievals

After the fall of Rome, Europe had its reset period. And during this time, the many towns of Europe all developed and enforced their own justice. As historian R.H.C. Davis writes:

Even the law might change from village to village; a thirteenth-century judge pointed out that in the various counties, cities, boroughs, and townships of England he had always to ask what was the local customary law and how it was employed before he could successfully try a case.

Historian Chris Wickham explains what these people did, then provides a nice example from a French town:

When disputes were dealt with, it was the villagers who reached judgment; they also acted as oath-swearers for the disputing parties, as sureties to ensure that losers accepted defeat.

In one notable case of 858 in the plebs of Treal, [a man named] Anau had tried to kill Anauhoiarn, a priest of the monastery of Redon, and had to give a vineyard to Redon in compensations, as an alternative to losing his right hand; here, six sureties were named, and could kill him if he tried such a thing again… most judgment-finders and sureties were peasants; the villages around Redon policed themselves.

So, even the hard case of attempted murder was dealt with quite well by the locals of a “Dark Ages” town in rural France. There is absolutely no reason to believe that we couldn’t do as well.

The Vehm

By about 900 A.D., the people of Westphalia (now Germany) were operating their own justice system, even though there were (at least intermittently) princes in the area who wouldn’t like it. Running what they called “Vehm” courts, they issued warnings to troublemakers, issued warrants, and occasionally had to execute someone.

The Vehm did have secret trials but only as necessary. Their meeting places were always known to the locals, and they never used torture, even though the princes did.

The Vehm was taken over by the state in 1180 A.D.

Lex Mercatoria

The great medieval trade fairs had their own system of justice called the Lex Mercatoria or Law Merchant. Separate from state justice, it operated quite well over a long period of time. Eventually, however, the states took it over and more or less rolled it into their systems of law.

Jewish self-rule
As historian Paul Johnson writes in A History of the Jews:

The Jews always ran their own schools, courts, hospitals and social services. They appointed and paid for their own officials, rabbis, judges… Wherever they were, the Jews formed tiny states within states.

Under less-than-hospitable conditions, Jewish self-rule, including the provision of justice, thrived from the fall of Rome until just the past few centuries.

Arbitration

Right now, arbitration – more properly known as alternative dispute resolution or ADR – is thriving as an alternative to state justice, which has become so expensive and cumbersome as to be impractical. This is true for high-end commerce, for labor disagreements, and down to the level of disputes among construction contractors.

ADR works very well and is far less expensive than government justice. It is restricted only by governments, who enforce specific limits.

Internet

Right now there are quite a few Internet arbitration providers. They stand in a fairly murky area, but the states haven’t clamped down on them yet. I haven’t had any experience with them, but so far as I know, they provide good service.

And Compared to What?

Whenever something new comes along – like providing justice outside of state power – people instinctively look for flaws in it. Then, finding even one, they leap to the conclusion that “it won’t work.”

The truth, of course, is that the current systems of law are full of flaws from end to end. They are corruptly applied; laws are bought and sold; they are insanely expensive; and they are unforgivably slow. And perhaps worse, they change with every new session of the legislature.

So, if we are to take perfection as a standard, state-provided justice fails, and very, very badly.

Why All the Hate?

Having given you a quick overview of non-state justice, the question remains as to why modern people are so biased against the very concept. To answer that question, at least partly, I leave you with a short passage from Carl Jung’s The Undiscovered Self:

[I]n order to turn the individual into a function of the state, his dependence on anything beside the state must be taken from him.

Paul Rosenberg
www.freemansperspective.com

The 2 Forces that Work Against You in a Jury Trial

juryA few years ago I received a jury summons. And while I detest the barbaric “show up or else” aspect of it, I do appreciate juries as a last ditch measure against tyranny. (In fact, years ago I spent some time with Larry Dodge, the founder of the Fully Informed Jury Association, and I’ve been a fan ever since.)

I was assigned to a slightly complicated drunk driving case, and since I have courtroom experience, the other jurors elected me Foreman. We heard the testimony in the case, which didn’t take long, and then retired to our jury room to deliberate.

Once we got going I realized, for the first time, what kind of pressures were placed on jurors. More importantly, I saw that in just an hour or two, I could have turned my jury in either direction. It wouldn’t have been hard.

I didn’t do that, of course. I oversaw the jury very loosely and was absolutely as fair as I knew how to be… without diminishing my own opinion, of course. It’s a sobering thing to decide whether a man goes free or is locked in a cage.

But, I could have turned the jury either way, and not because they were weak, stupid people (they weren’t), or because I was overbearing. Rather, I could have manipulated them because they were in a position that lent itself to manipulation.

Why Some Juries Get It Wrong

Mine was composed of ordinary working people. Even the handful of grandpa/grandma types had important things to do, like babysitting those grandkids. That placed all of us in a pressure situation, with two things bearing down on us:

1.We were missing work.

Sure, we got paid for jury duty – a whole seventeen dollars and change per day – not remotely enough to cover our lost wages. All of us were getting hurt financially.

2.We couldn’t leave until we all agreed.

Jury verdicts in the US have to be unanimous. Either you all agree, or you stay for a long time. Sure, if you remain deadlocked for a long enough time, the judge will declare a mistrial, but that could be a few days. Most of us couldn’t afford to lose a few days of work.

So, the jurors had to all agree, and quickly. The pain would keep getting worse the longer they took.

In other words, pressure was on each juror to change their opinion and go along with the rest of the group – or else we’d all have to stay, and it would be their fault.

I’m sure you’ve seen crazy jury verdicts and wondered how sane people could vote for them. This is probably why.

If you put people under this kind of pressure, then give them some kind of half-rational reason to change their minds – without making them look like cowards – they’ll go with the crowd, just so the financial pain will stop.

That’s in direct opposition to the way it was originally “supposed” to be done.

A Lesson from the Founders

In Athens, jurors were paid just a bit less than a working man’s wage. You’d probably prefer to work your regular job, but the difference wasn’t great, and a juror’s pay made a very nice extra income for a retired man. This tended to fill juries with older and cooler heads.

Also, a unanimous verdict was not required, so there was no pressure on anyone to change their minds. Especially so, since no one knew your vote unless you decided to tell them. (Compared to our version, where everyone in the room knows your vote.)

You might think that a simple majority vote might be a questionable thing when deciding something important, but these were large juries, so a 5-to-4 or 4-3 decision would never happen. The minimum size of an Athenian jury was 501. Juries as large as 1,501 were used for the most serious cases.

(As we covered in the FMP Letter #32, governments are very rich, so paying for so many jurors like this was not a problem.)

And, it’s worth adding, juries in Greece were all-powerful. Once it was decided, your ordeal was pretty well over. You’d never have a case languishing in appeals for years.

So…

No matter how much you were taught that your country’s system was the greatest thing ever, don’t you believe it.

Rules – laws – have no magic in them. They do not supply automatic justice. That’s up to us.

Paul Rosenberg
FreemansPerspective.com