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Comment by davidgerard | Hacker News Reader

What not to do in a Bitcoin-related drug and money-laundering trial: annoy the judge. http://ia600603.us.archive.org/21/items/gov.uscourts.nysd.42...

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I'm not sure I can agree that the judge was being entirely reasonable or fair. On the one hand, the defense wasn't allowed to use people like Andreas Antonopoulos as an expert because he lacks bona-fides and has no published academic papers on Bitcoin; and on the other hand the defense wasn't allowed to question the FBI's very own bona-fide computer scientist to establish simple factual details about computer operating systems. Of course everything is all by the rules, but it's a bit rich to expect there to be a large body of work in academia about a recently invented technology (Bitcoin). It could be true that the defense could have executed their case differently/better, but it may also be that their hands were tied and all they had to work with was Chewbacca. In which case, appeal incoming.

No, that's not what happened. The problem isn't simply that Antonopolous lacked credentials; it's that they disclosed him as a witness at the 11th hour without giving the court time to vet him. If you read the ruling, Steve Bellovin was also rejected, despite the judge's repeated acknowledgement of his outstanding credentials. In both cases, the defense was also unable or unwilling to describe what their expert witnesses would testify to, which they are required to do, just as the prosecution was required to do the same for their witnesses, to allow the opposing side time to prepare.

> that they disclosed him as a witness at the 11th hour

Yeah, that bit makes me suspect it was a deliberate strategy.

I'm not 100% sure on the timetables, but one reason for it could be that defense's counsel was getting sustained objections for cross-examining outside of scope. In essence, defense was trying to use a government witness as their own witness to prove other points.

The judge didn't allow this, but the defense said that they had been able to use opposing witnesses in this manner before. So, while it may have been a dumb idea in the first place, the logic may have been that they didn't think they would need a witness until that surprise.

In the filing introducing the two witnesses, the defense failed to concretely specify what they'd be testifying about. A late-game strategic switch to using their own experts is one thing; being coy about what those witnesses would testify is another.

Oh yeah, that's true. Well, consider me convinced that it was appeal fodder.

It's apparent to me this court is not interested in the truth!

On the contrary, it's very interested in the truth. When you want to present an expert witness, you include in the paperwork what truth they're going to tell the court, and their evidence for it.

The trial is a show for the jurors to convey information to them - everything that's going to be said NEEDS to be conveyed to the opposing side in advance, so they can prepare responses.

Surprise witnesses that blow cases wide open are only on TV.

That's all artificial. You don't throw out facts, hide your head in the sand, if you are seeking truth.

You also don't refuse to tell the judge what your expert will testify about if you want your witness to have their change to tell the truth.

Apparently, the prosecution was not less annoying. From this[1] Forbes report:

> She was annoyed. The defense was annoyed. The press gallery was annoyed. By the time the lunch break rolled around, Judge Forrest struggled to hold back her irritation. “I’m not suggesting the government doesn’t have a right to object,” she said. But, “I think that there are objections which are objections that you really need to make, and then there are objections where there certainly may be a legal basis for it, but the better part of valor is to stand down.”

> But the rapid-fire objections continued throughout the day.

[1] http://www.forbes.com/sites/sarahjeong/2015/02/03/the-silk-r...

Yeeup. OTOH, the prosecution did have a secret weapon on their side: overwhelming evidence. That does help.

Re the Forbes article, I have never completely understood how hearsay rules work. The sworn affidavit from Der-Yeghiayan can be entered as evidence but then certain parts of it can be labeled as hearsay and then the jury the can be told to disregard those specific parts as well as his testimony relating to the contents of the affidavit? How does this not bring in to question the accuracy and integrity of the entire affidavit?

Roughly, "hearsay" means that the person testifying to a fact was not a witness to it themselves or does not have direct knowledge over it. So it's entirely possible that some parts of the affidavit are hearsay while others are acceptable testimony.

The judge has written the outline of what Ulbrict should use in his appeal when he claims he had an incompetent trial lawyer!!!

Yes I know it's not that simple. And the evidence so far seems overwhelming. But if OJ can get away with murder, there's still some hope for DPR.

That is actually excellent advice for not doing in any criminal courtroom situation.

Bench-slaps are one of my favourite literary forms.

I rather doubt their plan was ever to "win" the trial by jury.

As that opinion & order suggests: racking up appeal credits. But then, the defence's entire "plan" appears to have been a series of Hail Marys. Because the evidence is laughably overwhelming. Because Ulbricht is apparently a narcissist so utterly convinced he couldn't possibly get caught that he kept a diary of his crimes right there on his daily working laptop.

(I realise technically he hasn't been convicted yet. But HOLY SHIT.)

To be fair, Ulbricht seems to have been a nightmare client. But a bench-slap like that says "one millimetre further and you're sanctioned." No lawyer wanting a long and happy career wants one of those.

> To be fair, Ulbricht seems to have been a nightmare client.

I haven't gotten that impression. He didn't insist on testifying, and he's been polite and well-mannered in the court room. As far as the defense strategy goes, it seems to have been all Dratel et al; I'm not aware of Ulbricht forcing any of the strategy choices.

I mean mostly in the sense that this was such a hopeless case he should have taken a plea, leaving only Hail Mary passes as a strategy.

I'd had the impression Dratel was respected before this. But attracting a bench-slap like this is not behaviour that gets you respect.

(Unless I am proven wrong and Ulbricht gets off or only gets a light sentence, of course.)

Why would they offer him any plea worth taking? Would you offer more than a negligible amount off if you were the prosecutor?

> I'd had the impression Dratel was respected before this.

From reading the transcript, I get the impression that he's respected but also known to be aggressive and a bit of a dick; but maybe that's what a good defense lawyer is in a hard case like that.

Taken a plea? What plea?

> Ulbricht seems to have been a nightmare client

The previous "nightmare client" that comes to mind is Hans Reiser. That didn't end well.

Note: on appeal, you're stuck with the consequences of the tactical decisions made in the trial. Any factual findings of a jury or decisions within the discretion of the trial judge (e.g. decisions to exclude witnesses), are reviewed very deferentially.

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