Making a Murderer
The New York prosecution has never indicted Ross for murder-for-hire, and no one was ever murdered. Yet they used this allegation to deprive Ross of bail and smear his name. New York also failed to include in its case the one Maryland charge, which is over three years old, unproven and possibly vulnerable to legal challenges. Ross’ lawyer believes that the absence of the Maryland charge in the New York trial demonstrates that it has no merit.
Despite the fact that were no charges at trial; no murders occurred; and Ross has no history of violence, the court permitted the prosecution to talk about these “uncharged crimes,” or surplusage, to the jury.
Assistant U. S. Attorney Timothy Howard said to the jury: “Now, to be clear, the defendant has not been charged for these attempted murders here. You’re not required to make any findings about them. And the government does not contend that those murders actually occurred.” But then he proceeded to talk about it for hours.
How can this not prejudice a jury? And how can it not prejudice the public when many in the media repeat this narrative, some even asserting that Ross was convicted of actual murder!
The defense argued that this inclusion in the court documents is prejudicial and irrelevant to Ross’s actual charges, but the judge denied requests for them to be removed. This issue is now part of the appeal and is also being challenged by former Federal Judge Nancy Gertner; Drug Policy Alliance; Law Enforcement Against Prohibition and Just Leadership USA.
Our question is, if the government is so sure of these allegations, why not charge Ross for them? Or is this simply a tactic to convict him in the court of public opinion where you don’t need proof, prejudice a jury and justify a draconian sentence? Accusations are easy, especially when the press applies no skepticism to government statements. Proof is another matter. That’s what trials are for and what Ross was deprived of.
Grace under Fire
We are proud of how Ross handled one of the most difficult ordeals we can imagine. Being at the trial, and watching Ross’ defense sabotaged and hamstrung was hard enough for us. But for Ross, who knew the whole story and the evidence being concealed, it must have been a torment. Before the trial he was optimistic, saying: I’m so excited. I’m going to be free soon. There’s an explanation for everything. The evidence will show it. But then he watched as that evidence was suppressed; witnesses were blocked; his attorney was muzzled.
Yet Ross comported himself with dignity and courage throughout. We could hear the jury laughing while they deliberated. We thought surely it must be a good verdict, they wouldn’t be laughing otherwise. The head juror delivered her verdict to the judge with a big smile on her face. And then we heard Ross was convicted on all seven counts.
Even then, after the crushing verdict was read, Ross stayed strong. He turned around to us – his loved ones – obviously devastated. Yet he gave us a concerned smile of comfort. “It’s ok,” he said. “It will be ok.” He was worried about us. That is so Ross. I am still haunted by that moment.
Ross spoke to us about how hard it was to sit there, day after endless day, being the focal point of the jury, the press and everyone else. Of wanting to stay alert, to look good, but sometimes being exhausted. When we broke for lunch, he went to a cell for a sparse, lonely meal of a dry bologna sandwich and piece of fruit. He told us how hard it is to be on display. To have jurors, observers and press scrutinize you for hours. To have prosecutors point at you, condemn you to the room and the world, while you are forced to sit silent, unable to respond.
How hard it is to be voted guilty by a jury deprived of essential information.
Double Life in Prison without Parole
Ross Ulbricht, a first-time offender, was sentenced to double life in prison without parole + 40 years on five non-violent counts: Distribution of Narcotics by Means of the Internet; Continuing Criminal Enterprise; Conspiracy to Commit and Aid and Abet Computer Hacking; Conspiracy to Traffic in Fraudulent Identity Documents; and Money Laundering Conspiracy.
Ignoring the Sentencing Reform Act, the Judge gave Ross “the severest possible penalty to be imposed.” This is a harsher sentence than most violent offenders get. None of the counts included directly dealing drugs or physically harming anyone. They were based on the conviction that Ross created and operated a website.
This draconian ruling sent shock waves worldwide.“This sentence is unreasonable, unjust and unfair,” Defense attorney Joshua Dratel said. “It is based on improper considerations that have no basis in fact or law. Instead it is purely punitive and completely beyond the range of what drug offenders get in this district, in this circuit, in this country.“ It is also beyond what murderers, rapists and child pornographers get. It is a harsher sentence than given to Charles Manson, since Manson is eligible for parole. It is harsher than the 40-year sentence of Manuel Noriega and the US had to invade Panama to get him.
Dratel referenced Peter Nash, another Silk Road defendant who pleaded guilty to all drug charges against him and was released after 17 months. “I’m not suggesting Mr. Nash’s and Mr. Ulbricht’s sentences should be the same. But this is 17 months vs. life. The only difference is that Mr. Nash pleaded guilty and Mr. Ulbricht exercised his constitutional right to trial. You could call it a trial tax. And here it’s beyond a tax.”
Dratel also referenced the Sentencing Reform Act, which requires that the judge impose a sentence that is “sufficient, but not greater than necessary.” This act was passed by Congress to provide fairness in sentencing and avoid disparities among defendants with similar charges. An extremely harsh sentence like this, far beyond the norm, is what this act of Congress was created to avoid.
“A judicial system that eschews compassion runs counter to all legal, as well as religious and social doctrine,“ Dratel said.
The Drug War and Political Speech
With this sentence, Judge Katherine Forrest delivered a strong endorsement of the U.S. government’s War on Drugs. She made it clear that it was to serve as a warning to others and that the government is doubling down on the drug war, which has not lessened or stopped drug use after over 40 years and $1 trillion. Judge Forrest’s barbaric sentence has not served to deter the launching of many online markets, much bigger and more criminal than Silk Road was.
The judge also referenced DPR’s libertarian writings and the site’s political philosophy. She stated that she found postings on the site “deeply troubling and terribly misguided and also very dangerous,”
“It is also notable that the reasons that you started Silk Road were philosophical and I don’t know that it is a philosophy left behind.” Clearly Ross’ sentence was, in part, based on political thought and speech. Using such considerations for a sentence is strongly counter to the First Amendment.
Mitigations Rejected
Judge Forrest rejected academic studies that concluded Silk Road reduced harm in the drug world and saved lives, saying it was “magical fantasy that the Silk Road site had a harm-reducing effect on society.” Dratel responded: “The fantasy is that long sentences make any difference. The fantasy is that the internet will not be a source of drugs or illegality because of this sentence.”
The defense also presented, and the judge rejected, many studies and articles concluding that long sentences do nothing to deter crime. “She took what was the unanimous consensus of independent, professional researchers and reduced it to a selection of a word here and a word there and twisted it on its head,” Dratel said.
Judge Forrest was also unmoved by the 100 letters from friends and family (including fellow inmates) attesting to Ross’ principled character and compassion. These people entreated the judge to allow Ross to eventually return to society and contribute to it. Although Judge Forrest called the collection of letters “impressive” she found them unconvincing.
Uncharged Crimes
Judge Forrest relied heavily on murder-for-hire allegations to bolster her decision, despite the fact that these were never charged, proven or convicted at trial. “Uncharged, unproven conduct drove this sentence dramatically. It was not about the crime he was convicted of,” Dratel said.
In addition, two parents of people who allegedly died of overdoses from drugs bought on Silk Road were brought to testify at sentencing. When presented with an 11-page forensic pathology report stating in detail why the cause of these deaths could not be scientifically determined, the judge dismissed it as irrelevant. Joshua Dratel said the inclusion of these deaths at sentencing was the government’s “transparent appeal to emotion beyond what the crime was.“
The Judge’s Speech
The judge then addressed Ulbricht at length, before a gallery filled with supporters, observers and packed with more media than her courtroom had ever seen. In what sounded like a political campaign speech, she evoked the American flag to her right at least twice; spoke of democracy repeatedly; and berated Ulbricht that Silk Road was not a democracy. As the site was not a country and, like other non-democracies like Amazon or Wal-Mart, customers were there voluntarily, some observers expressed confusion at this.
The judge also implied that, although he has never said anything to indicate it, Ross thinks he is above the law because he is privileged and educated. It is unclear why this judge, worth multiple millions, considers Ross privileged. He grew up in a middle class family, in a rental house. His family lived a modest lifestyle, drove old cars and he was educated on the scholarships he earned.
Before issuing a life sentence without parole, the judge took an unjudicial tone and mocked Ulbricht, who stood helplessly before her: “”It is still unclear to me why you ever kept a journal,” she said, evoking laughter.
The Corruption
Corruption finally revealed
Approximately two months after Ross’s trial and the filing of his post-trial motions, it was revealed that two federal agents at the core of the Silk Road investigation in Baltimore — DEA agent Carl Mark Force and Secret Service Special Agent Shaun Bridges — were charged for corruption and offenses directly relating to their investigation of the Silk Road website. It was later disclosed that Bridges was also working for the NSA at the time he was investigating the site. They gained high-level access to administrative functions of the Silk Road from the informant Curtis Green, known as Flush.
The agents had been under investigation for at least nine months for stealing and extorting funds totaling over a million dollars, among other crimes. Although Force’s existence was made known to the defense pre-trial, the fact of Bridges’ existence was not revealed until after trial. Neither they or their activities were made known to the jury.
The agents
Force was the lead undercover agent on the case for DHS Baltimore, for two years. He played the single biggest role in the most damning accusations leveled against Ross: allegedly organizing a murder which never occurred. The government did not charge Ross with this at trial, but it remains in an indictment in Maryland based on Force’s evidence (despite the right to a speedy trial) where the corrupt agents were operating. It was also discussed in the New York trial and at sentencing, despite being uncharged and unproven.
Bridges is an ex-Secret Service agent and NSA employee, and a computer forensic and dark net expert. Several other cases he investigated have been thrown out based on his corrupt activities.
Unfettered access
Force, and especially Bridges, are computer forensics experts, dark net experts and had unrestrained, high-level access to administrative functions of Silk Road, basically the keys to the kingdom. They used this access and their advanced technical skills to steal over a million dollars. It is feasible that, given their technical sophistication and level of access, they also exploited vulnerabilities in the site to gain access to other administrative accounts, including that of Dread Pirate Roberts account. The full story is still unknown.
We do know that the agents had the power to change aspects of the site; gain access to administrator platforms and passwords; to change PIN numbers and commandeer accounts, including that of DPR, so they could act as DPR and also under other aliases. They also had the means to manipulate logs, chats, private messages, keys, posts, account information and bank accounts. The codebase for the Silk Road site, PHP myadmin, provided in discovery, reveals that an administrator with this level of access could reset the PIN on DPR’s account and gain control of it. With PHP myadmin access, either agent could re-set passwords and change anything in the Silk Road database, including message text in the Forum or Market messages. There were multiple PHP myadmin accounts, so they could have had access to DPR’s account without DPR losing access.
They also conceivably had the motive to alter data in order cover their actions and direct attention elsewhere.
Follow the money
Since his initial arrest Shaun Bridges was apprehended trying to flee. This raises more questions, as Joshua Dratel explains:
“Since people almost never flee without some access to money overseas, Bridges’ plans, and the foreign corporations, begs the question whether we know the full range of his and Force’s illegal activity in connection with the Silk Road site. The government has clearly been more interested in suppressing such disclosure than getting to the bottom of it.”
There are millions of dollars in bitcoin from Silk Road still unaccounted for by the government.
Government Arguments
In response to the prosecution’s protestations that the New York investigation was separate from Baltimore’s, the defense states that, on the contrary, the record establishes they were “coordinated and combined, each sharing information generated by the other, in a joint effort …” It was submitted that the Court conduct an evidentiary hearing to resolve any question about this, but that did not happen.
While the prosecution argues that the corruption isn’t relevant to New York, they provided several exhibits pre-trial (later redacted) that referred to Force in his various internet persona (Nob, alpacino, frenchmaid, Death from Above). Obviously at that time they considered Force and his work very relevant.
In addition, two journalists have stated publicly that the government told them the Silk Road investigations worked cooperatively among the agencies in different states. One is Fran Berkman, who has covered the Silk Road case on Daily Dot and Mashable. He tweeted that a representative of the New York FBI told him in October, 2013: “We were aware of everything [Baltimore investigators] were doing, as they were of us.”
The other is Ian Duncan, who covers intelligence and military issues at the Baltimore Sun. In his article Duncan writes:
John Eisert, a senior HSI official in Baltimore, said the plan was to make moves that would “shake the trees,” dislodge new details and lead agents closer to Dread Pirate Roberts.
FBI officials in New York later started working to break through the wall of encryption that protected Silk Road and many of its users from public exposure. But the agents in Maryland were tasked with developing informants, setting up drug busts and cutting deals with people in handcuffs.
Authorities took their case to a grand jury in Baltimore and obtained a sealed indictment May 1: By that point, the Maryland agents were working with the New York FBI office. The two teams began to try to figure out what they each had.
Everyone had that little piece of the puzzle, then it was time to sit at the table and put it together,” Eisert said, a process carried out in a series of conferences and phone calls.
The prosecution also argues that the defense’s theory is implausible and immaterial. This begs the question: why did they aggressively block it from trial along with other evidence the defense attempted to introduce? Why wasn’t the jury allowed to hear all the evidence?
In the wake of the revelations of corruption and the fact that these agents gained access in early 2013, it is apparent that issues raised by the defense at trial were relevant, including:
- The 2013 payment by DPR to a law enforcement agent for information about the investigation;
- The ramping up of the investigation of Ulbricht in mid-2013, soon after that paid information began flowing to that agent;
- The 2013 journal that begins in March, 2013, after the corruption allegedly ripened. (Before 2013 there was a total of one journal page in 2010, one page in 2011, and a statement in 2012, “I’m going to start a journal.” It is only starting in mid-2013 that detailed writing suddenly appears.)
The defense concludes: “The complete scope of what former SA’s Force and Bridges were able to accomplish with the illicit access they gained to the Silk Road web site, and its impact on this case, has yet to be determined.”
Since his initial arrest Shaun Bridges was apprehended trying to flee. This raises more questions, as Joshua Dratel explains:
“Since people almost never flee without some access to money overseas, Bridges’s plans, and the foreign corporations, begs the question whether we know the full range of his and Force’s illegal activity in connection with the Silk Road site. The government has clearly been more interested in suppressing such disclosure than getting to the bottom of it.”
The defense is not required to prove that excluded evidence would bring a different verdict. It is only necessary to show a reasonable probability that it would. We cannot know for certain, had the jury been told that senior agents, key to the investigation; who had unrestrained access to the Silk Road site; who stole over a million dollars; if it would cast reasonable doubt. Judging by how aggressively the prosecution fought to have this evidence suppressed, it seems they thought so.
Suppression of Evidence
This corruption permeated the trial, yet was forbidden to be mentioned. This preclusion deprived the jury of essential facts, eviscerated Ross’s defense and denied him a fair trial. Corrupt agents are a scandal. Yet perhaps more scandalous, and threatening to us all, is the violation of Due Process. Fair trials are a pillar of our liberty.
The prosecution aggressively moved to prevent at trial any reference to the corruption or (in violation of the Brady Rule) to any evidence favorable to Ross.
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