DOJ's First Attempt To Prosecute Accused Vault 7 Leaker Ends In A Mistrial

from the if-at-first-you-fuck-things-up... dept

The DOJ has taken an open-and-shut espionage case and managed to somehow misplace the back cover. Does this say something about the unintended consequences of charge-stacking? Maybe. Whatever it is, it isn’t pretty.

The case against alleged Vault 7 leaker Joshua Schulte seemed pretty air tight, especially when Schulte continued to leak sensitive documents while behind bars, as well as attempting to rope his family into committing contempt of court violations on his behalf.

He also, as Marcy Wheeler pointed out, gave the government pretty much everything it wanted or needed, but the DOJ’s prosecutors failed to present evidence in a coherent way, resulting in a whole lot of juror confusion.

According to InnerCity Press (virtually the only press covering the Schulte verdict watch), by end of day today the jurors had sent out 25 notes, most questions but also problems with two of the jurors. At the end of the day they told the Court they “aligned” on two of the charges, but were at an impasse on the other. Given that there’s slam dunk evidence that he committed the least serious crimes (false statements and contempt), that suggests at least some members of the jury have reasonable doubt that the guy who wrote a virtual signed confession to committing the most damaging leak in CIA history actually did so.

The verdict is now in, what there is of it. The case initially involved charges ranging from false statements to CFAA violations to copyright infringement (!) to child porn possession (!!!). Barely any of those charges have survived. A mistrial has been declared with jurors only finding Schulte guilty on the two least serious charges: false statements and contempt. Those won’t be enough to keep him in jail since he’ll likely be credited with time served. Schulte has been in jail since December of 2018.

This doesn’t mean it’s over. Marcy Wheeler says the government will very likely take another stab at presenting a coherent case.

The two sides will have a conference on March 26 to decide what to do. The government will certainly push to retry Schulte; Sabrina Shroff [Schulte’s lawyer] asked for an extended deadline to file motions. She may try to do something further about the government’s late notice that Michael, a key witness, got put on paid leave last August (though the government has argued compellingly that Michael’s underlying lack of candor has been noticed to the defense throughout). She also may make yet another bid to get more access to the forensics, something I’ve argued that the government should have permitted in the first place.

The mistrial declaration is a credit to Shroff, who performed the unenviable task of shepherding an extremely unhelpful client through a federal espionage prosecution. Facing espionage charges drastically reduces a defendant’s options. Drawing additional judicial scrutiny by attempting to leak sensitive material while incarcerated and spending your free time openly insulting the FBI and federal prosecutors isn’t a course of action recommended by anyone.

Prosecutors needed to present a case containing a wealth of technical detail to jurors with clarity and conciseness. The twenty questions given to the judge by jurors a few days before the mistrial declaration showed the jury still remained confused about the facts of the case and, in a couple of instances, focused on information that had little to do with the criminal charges they were deliberating.

The government may get more charges to stick the second time around. But this initial failure is an indictment of the prosecution and its apparently misplaced confidence that the evidence spoke for itself. When you have to prove something beyond a reasonable doubt, quantity is no replacement for quality. As for Schulte, he’s still at the DOJ’s mercy until it exhausts its prosecutorial options. This isn’t going to work out well for Schulte who’s shown he’s unable to quietly bide his time and capitalize on the government’s missteps. He seems compelled to make things worse for himself during his unfortunately ample downtime.

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Comments on “DOJ's First Attempt To Prosecute Accused Vault 7 Leaker Ends In A Mistrial”

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Anonymous Coward says:

Do they understand the effect this has on tourism?

Michigan might not exactly be a popular tourist destination but these sorts of stories affect people’s decisions on where to spend their free time. That decision within the USA might be limited to choosing to avoid one state, but for tourists from outside the country, the decision covers the whole country.

Anonymous Coward says:

The dark side of this is...

The dark side of this is that prosecutors will have even more motivation to strong-arm plea bargains. With the judiciary (at least) tacitly cooperative, the right of trial by jury is going by the way-side.
We will all suffer for this. The plea-bargain railroad will ramp up further, to the detriment of all.

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