Preet Bharara: Keep Politics Out of Ulbricht Defense

The Daily Dot reports that prosecutors in the Ross Ulbricht case working under Preet Bharara is seeking to bar Ulbricht and his defense team from bringing up the subject of Ulbricht's political beliefs at trial, and wants to prevent Ulbricht from saying anything political at all on the stand. Preet Baharara is himself specifically concerned that the defense wants to bring up:

"views concerning the propriety of U.S. or international drug laws or the propriety of government regulation of individual conduct or commerce on the Internet"

This is in spite of that fact that if the Silk Road operator the Dread Pirate Roberts can be established lawfully in court to be Ulbricht, that nearly all of the writings available to establish Mens Rea, or culpable criminal mind set, appear to be of a political character. It also doesn't seem to be unusual for Bharara's prosecutions to be politically motivated seeing how his insider trading convictions from show trials he held in the wake of the United States financial catastrophe in 2008 have been overturned. In the wake of Bharara's show trial convictions being overturned people who contested their persecution in court were exonerated while those who plead continue to suffer for their admissions of guilt.

The fear that now strikes prosecutors is that by letting the jury be exposed to the political beliefs and positions, they might become sympathetic to Ulbricht and acquit him even in the event prosecutors convince the jury Ulbricht in fact broke the laws he is alleged to. This outcome known as jury nullification has a rich historical tradition in the United States. Jury nullifications was common when English law was applicable in territory that is now part of the United States and has acquitted parties through the history of the United States of "crimes" as varied as religious assembly outside the authority of the Church of England, to rendering assistance to a fugitive slave, to the Camden 28 case.

In spite of activist prosecutors like Bharara and similarly activist judges to combat jury nullification through restrictive jury instructions and censoring the speech of defense attorneys and defendants, acquittal by nullification remains a protected right of juries in the United States. In a case where the presiding Judge, Katherine Forrest, has decided to suppress evidence that raises serious doubts about the legality of a key search on which the rest of the prosecution's case depends; restricting the presentation of the political beliefs that actually establish Mens Rea because it might make the jury more inclined to acquit would be yet another perversion of justice by Preet Baharara's office and American courts in this string of politically motivated show trials.

Bharara's office seeks to invoke an unrelated, dissimilar case as precedent to censor presentation of any information conveying Ulbricht's political beliefs in front of the jury. An Appellate Court's curt dismissal of a credit card fraudster's conviction where no evidence was contested and the entire defense strategy consisted of saying racism makes bad precedent for a case which will likely be studied, cited, and appealed for a long time as much of what is at issue in this case is unbroken ground in court. The decision even includes this gem:

While juries have the power to ignore the law in their verdicts, courts have no obligation to tell them they may do so. It appears that every circuit that has considered this issue agrees. See id. at 1189-90; United States v. Moylan, 417 F.2d 1002, 1006-07 (4th Cir.1969); United States v. Krzyske, 836 F.2d 1013 (6th Cir.1988); United States v. Perez, 86 F.3d 735 (7th Cir.1996); United States v. Drefke, 707 F.2d 978, 982 (8th Cir.1983); United States v. Powell, 955 F.2d 1206, 1213 (9th Cir.1992); United States v. Mason, 85 F.3d 471, 473 (10th Cir.1996); United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir.1983); United States v. Dougherty, 473 F.2d 1113, 1130-37 (C.A.D.C.1972); see also Skidmore v. Baltimore & O.R. Co., 167 F.2d 54, 57 & n. 13 (2d Cir.1948); United States v. Desmond, 670 F.2d 414, 417 (3d Cir.1982); Washington v. Watkins, 655 F.2d 1346, 1374 n. 54 (5th Cir.1981).

While the subject of jury nullification may be forbidden in the court room, in the Ulbricht case given the political nature of the crime suppressing Ulbricht and the Dread Pirate Robert's politics from appearing at all during trial would be a great injustice. Especially when establishing that a crime in this case has actually occurred is a tenuous proposition.

Of course at this point given Judge Forrest's decisions made already it might be better for the United State's prospects of becoming a more just country if this case could make it to an appeals court where much of the bad precedent already being established in this could be purged.

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