We are told a fair trial is a basic right in this country. It is a pillar of our Bill of Rights. Without it, we are helpless against tyranny. Yet how is a trial fair when much of the defense evidence is suppressed? Telling one side of the story does not make an even playing field and is not what our founders intended. Yet this has been demonstrated in the Silk Road Trial since the second week.
Revelations of Week 1
Week one was different. Joshua Dratel, the defense attorney, opened by saying that Ross did start Silk Road as an open market, economic experiment, but passed it on to someone else and got out. Later, this DPR learned that law enforcement was closing in on him and set Ross up to take the blame. This theory is supported by 5,000 pages of material submitted to the defense by the government ten days before trial .
Government evidence shows that this DPR paid for, and had a file full of, information about law enforcement investigations. That by September 13, 2013, two weeks before Ross’ arrest, he was warned that they had his real name. That he then implemented his escape plan and transferred the blame to Ross.
Until two weeks before Ross’s arrest, the government believed this DPR to be Mark Karpeles. This was confirmed in cross examination by Jared Der-Yeghiayan, a Homeland Security agent who investigated Silk Road. Der-Yeghiayan testified that he had pursued and built a case against Karpeles for two years.
Der-Yeghiayan gave many reasons why he suspected Karpeles, even stating that the Forbes DPR interview with Andy Greenberg sounded like him. (And everyone who knows Ross says that interview sounds nothing like Ross).
Interesting Turn of Events
But then an interesting thing happened. About to close in, Agent Der-Yeghiayan’s efforts were suddenly sabotaged by DHS in Baltimore. He had asked them not to alert Karpeles, but they did anyway by seizing funds from his account. Upset, Der-Yeghiayan felt undermined by the Maryland agency. He recorded this in a detailed chronology of the investigation.
Then Karpeles’ lawyers offered the Maryland agents a deal: Karpeles would provide DPR’s name if they would back off and not charge him with operating an unlicensed money exchange. Karpeles was never charged and two weeks later Ross was arrested.
Cat’s out of the Bag
When all this came out, the prosecution argued vociferously, almost desperately, that the jury should not hear any more of this testimony from its own witness, from its own evidence. Instead of ruling at a sidebar, the judge sent the jury home an hour early.
Serrin Turner continued to protest, “But your honor, the defense is arguing that someone else is the real DPR.” At that point, there was actual laughter in the gallery, and the judge asked, “How else do you do it?
The judge added that if the agent had another target, that this was “directly relevant.” In fact she said it went to the “heartland of the defendant’s theory,” and the fact that Karpeles could be a DPR, had “come out in spades.” She also talked about acting in the interest of justice.
When the prosecution argued against re-visiting the Karpeles theory she said, “That cat’s out of the bag,”
Cat Stuffed Back into Bag… And Pretend you never heard this
Yet by week 2 something had changed. Now what had been “directly relevant” and in the interest of justice, was no longer. Not relevant was material found in five thousand pages of government evidence of Der-Yeghiayan’s statements submitted by the government. Instead, the court informed the prosecutors they should have objected when they had the chance, but then coached them as to the type of arguments it would entertain in order to retroactively sustain objections to this testimony.
So that cat is stuffed back into the bag after all. Key parts of this cross examination are stricken from the record. The defense is prevented from pursuing this key line questioning. This large amount of exculpatory testimony is suppressed. It can’t be used in the defense’s closing arguments. The jury will not be reminded of it. Instead of the field of evidence being available to the defense for cross examination, the defense is now tethered to the prosecution’s narrative and not allowed to deviate from it.
What a difference a weekend makes.
Basically the government is arguing that its own witnesses are unreliable… unless they aren’t. The government can use chats, screenshots and social media posts as evidence – which are easily altered and have been ruled inadmissible in other cases – but the defense can’t use the testimony of a DHS agent in a sworn affidavit from the government’s own evidence.
So it seems we can only know what the government wants us to know. We can’t know the whole story. And without the whole story, how do we have the truth? How is it fair? And why is the government so determined to suppress this information?
In response, Dratel stated that the prosecution is being allowed to eviscerate his defense. As a result he would have to reconstruct his entire cross examination and requested a break until the following day.
The judge replied, “No. I’m done with this issue.”
We are shocked by the unfairness of the trial. We are dismayed that so much evidence favorable to Ross — that would cast strong doubt on the government’s narrative – will not be heard by the jury. We also think of the many prisoners who don’t have the support and representation Ross does. They stand no chance against such a system. No wonder 97% of the accused plea instead of risking going to trial.