Why Ross Ulbricht Must Be Pardoned

I’ve written about Ross Ulbricht before, but I want as many people as possible to know about this horrible miscarriage of justice.

I’ll be brief, but I want you to have the facts. I think they matter a great deal, not only for getting Ross out of prison – a place he clearly does not belong – but because the administration of justice in America, at least in cases that people in power care about, has been deeply corrupted.

And please understand that I’ve been in and around the US justice system for most of my life, including almost forty years as an expert witness. I’m not writing out of mere passion.

The Crime

Ross Ulbricht started the Silk Road hidden web site. I happen to think it was a worthy commercial adaptation, but you can make up your own mind. The site began as an experiment, selling books and other things, but soon enough became famous for selling peer-reviewed drugs from customer-rated sellers. It was an anonymous eBay, and it brought drug deals out of some very dark, dangerous places and into a modern commercial marketplace. I suspect that it saved numerous lives that way.

Drugs aren’t my cup of tea, but I believe people own their bodies and that peaceful commerce should be left alone. Again you can make up your own mind, but if you think the running such a service should be punishable, please decide what sort of penalty you’d apply to it… because we’ll be coming back to this question.

The Case Against Ross

The case against Ross was seized by the Southern District of New York, with the aid of Chuck Shumer, the senior senator of New York. The officials involved seem to have been his appointees; certainly the judge and chief prosecutor were.

Problems with this case sprang up immediately. First of all, it was politically driven, and openly. (See here and here.) That’s not a good thing, especially because it poisoned the jury pool.

Next, the FBI flatly lied about how they found Silk Road’s server. See here. What they really did was almost certainly parallel construction, which is simply a way to lie to the court.

A mere two months before Ulbricht’s arrest, the lead DHS investigator swore under oath that Mark Karpeles of Mt. Gox (rather than Ross) was the person running the Silk Road site. The jury, however, wasn’t allowed to know this.

Around the same time, two federal agents investigating the case pled guilty to corruption related to it. But again the jury wasn’t allowed to know.

The government spied on Ulbricht’s Internet traffic (along with others who used the same router) without showing probable cause and without a warrant, which again became a non-issue.

Murder-for-hire charges were manufactured by federal agents then massively publicized, which poisoned public opinion, and along with it (again) the jury pool. These flamboyant charges, however, were never tried, never proved, and were quietly dropped as the case proceeded.

The defense very early admitted that Ross had created the Silk Road service, but maintained that he had handed it off to others when it got too big for him to operate himself. (Ross was a physicist, not a programmer.)

What I Saw At The Trial

I attended the Ulbricht trial in January of 2015; not the whole trial (it ran for weeks) but for what turned out to be a couple of its most important days. The first thing I saw was Ulbricht’s lawyer complaining bitterly that he was notified of a major change in how evidence would be presented, with less than one hour’s notice… over lunch, via email. It sounded crazy at first, but the judge never denied it, merely telling him that it was done and he’d have to live with it. That’s a horribly unfair way to run a trial; I had never seen such a thing before.

That same afternoon, I was blown away by the judge announcing that she had altered the trial transcript over the weekend. This is something that simply cannot be done in an American court, and yet, at the highly prestigious US District Court at 500 Pearl Street in lower Manhattan, I listened to a judge announce that she had done precisely that. The judge sat in her high perch and said this (which is fairly 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.

Those of you with experience in law are perhaps gasping as you read this, very much as I was in that courtroom, half in disbelief. I briefly considered standing up and castigating the judge. I decided against it for several reasons, but sometimes I wonder if I made the best choice. In any event, the judge went on for a long time, trying to explain why this was okay, even if it didn’t seem like it. This alone condemned the entire trial. Sadly, however, the injustices continued.

The prosecution’s forensic evidence, provided by an FBI agent, was far below any professional 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 at least it should be. Making it worse was the fact that the defense wasn’t allowed to call expert witnesses.

The most pathetic moment came when the prosecutors forced one of Ross’s old friends to testify that Ross asked his advice when building the Silk Road site. He was testifying only because he’d be thrown in jail if he didn’t, making the emotions surrounding the moment a horrifying mix of pity (the man looked like he had been tortured, minus the bruises) and disgust with a man betraying his friend to a horrible fate.

The Sentencing

Before I get to the numbers, we should go back to those highly publicized murder-for-hire charges: Those charges were never tried at all. And yet, Ulbricht was sentenced based upon them. The judge, of course, worked some judicial slight of hand by trying to include them under other charges and claiming “the preponderance of evidence,” but in America, you cannot sentence someone based upon charges that weren’t directly tried. Here’s the sixth amendment establishing the point:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…

“No trial, no sentence” is the way it must be, and an overflow of language from a high and intimidating perch can’t change that… Except that it did.

Now I’ll get back to the question I asked at the beginning of this article: If you think what Ross did was a punishable offense, what sort of penalty should have been applied?

Whatever your answer, I suspect it doesn’t match what the judge handed down: Ross was given – as a first time, nonviolent offender who is  loved by everyone who knows him – two life sentences plus 40 years.

Again you’ll make up your own mind, but to me that’s not justice, it’s a head on a pike being paraded around the castle.

What Now?

Ulbricht, with the heroic support of his family and the larger crypto community, appealed his case all the way up to the Supreme Court, which turned it away. Now, Ross’s only real hope is for a Presidential Pardon.

In a better age, a judge overseeing this case would have reasoned along these lines: “Jailing this intelligent, thoughtful and nonviolent young man for any significant time, even given his crime, serves no purpose. He could provide a great deal of good to the world, and indeed there was no one claiming damages against him; only the state.”

Such a judge would have imposed some level of sentence or restriction, getting Ross back to normal life in a fairly short period of time. Everyone would benefit from it.

Everyone, of course, except the “public servants” who were offended by someone working around their edicts. That’s what this is really about: offending the powerful.

I can only hope that an American President finds the courage do do something about this. And soon.

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Paul Rosenberg