The government is about to prosecute its case of the Dread Pirate Roberts, but in an odd way.
If Ross Ulbricht is indeed the Dread Pirate Roberts who runs (or ran) the darknet site “Silk Road,” then he may have committed real crimes for which he should be punished. I don’t wish to defend him since I don’t know enough about him.
But the trial seems odd. Newser.com summarized a few features.
The good news is that the potentially worst aspect of the trial has been eliminated by the judge. The prosecutor wanted the judge to prohibit Ulbricht from mentioning his politics at trial. I am glad the judge refused to violate the First Amendment and the whole point of a trial by jury, but it is still disgusting that this kind of request by prosecutors is ever considered in American jurisprudence. Judges should not have the authority to ban arguments that an accused person wants to use to prove they are innocent.
There are other troubling questions.
The issue at trial is not only whether the so-called Dread Pirate Roberts committed crimes, but whether Ross Ulbricht is really the true identity behind the name. He denies it. But the government’s argument involves charges of conspiracy to murder:
the most damaging allegation may be that he tried to have six people who threatened his business killed. He isn’t being tried for attempted murder, but prosecutors say the attempted “hits” help show Ulbricht was the site’s boss. A federal judge has overruled defense objections to allow evidence of the murder-for-hire plots to be introduced, saying the “prejudicial effect is reduced by the government’s stipulation that no actual murders were carried out.”
What? How can the state allege an attempted-murder plot but not actually charge the person being accused of attempted murder? That makes no sense at all. Somehow, they are going to be able to make these accusations to the jury, in order to pursue a different verdict, without ever proving the accusations themselves. How can a jury consider Ulbricht guilty of a crime on the basis of accusations that the government is not actually prosecuting him for and for which he has never been convicted?
Another question is how the government collected some of its evidence. Somehow it got hold of Gmail and Facebook information off a server in Iceland. How? The defense argued it should not be allowed at trial. The judge ruled that the defense had to prove that Ulbricht’s rights had been violated. But shouldn’t the way the government got the evidence be a matter of court record? If the government is allowed to secretly gather evidence then how can any of us know when the Fourth Amendment is being honored or broken?
Which brings us to the question of whether the National Security apparatus of the surveillance state was used in this case:
it isn’t entirely clear how the government found the Silk Road servers before taking the site down in 2013, although Ulbricht’s lawyer has pointed the finger at the NSA.
For all these reasons, it might be interesting to see how this trial goes.