But in any case, the moment the judge wrote that “Defendant has, however, brought what he must certainly understand is a fatally deficient motion to suppress”, the good ship Revenge was sunk. And this is the point where the defense turned to farce.

The defense, in its opening, presented two theories, that Ulbricht was framed and that the Bitcoins were legitimate. Yet the defense can’t just simply say “my client was framed”, the defense must be able to provide evidence to this effect. Otherwise, this becomes the Chewbacca defense, as any defendant could say “I Wuz Framed” and walk away.

So at that moment, the defense implied that they had some evidence to back these statements, and also gave the prosecution a road map for the remainder of the case.

The prosecution responded by dropping so much evidence as to make the rubble bounce, evidence which was already disclosed to the defense. Rather than just introduce a chat with “Variety Jones” where the Dread Pirate mentions heading into the jungle, they introduces Ulbricht’s Facebook post about his Thai vacation. Rather than just introduce the defendant’s laptop, the prosecution introduced a USB backup from the defendant’s apartment, apparently made two weeks earlier. And don’t forget the scrap of paper with both Silk Road’s rating system and the phone number of Ulbricht’s intended date.

The only 11th hour surprise to the defense involved tracking the Bitcoins. Apparently nobody realized that Bitcoins were trivial to trace. After the defense’s opening, the prosecution scrambled to analyze the wallet.dat files, not only discovering a huge amount of Bitcoins directly from Silk Road to Ulbricht (apparently Ulbricht’s wallets were also the Silk Road “cold” storage) but even sourcing the “hitman” payments as coming from Ulbricht’s wallet!

Now the courts generally frown on 11th hour surprise evidence, having a natural dislike for trial by ambush. Unfortunately for the defense, they invited this ambush in their opening statements.

The materials that underlie the analysis were produced long ago. Based upon the opening statement and based upon one of the theories of the defense, which is that the defendant was a bitcoin trader and that any bitcoins in his possession were from bitcoin trading, it was reasonable to expect that you yourself had done such an analysis and, therefore, that you had some intention of presenting something that would have shown the opposite. In any event, you’ve opened the door to it, and we’re going to proceed. And the fact that the government adjusted and was able to do so is not something that is particularly problematic or unusual. So that’s my ruling on that. -Judge Forrest

So what was the defense to do? Pound the table. And pound it they did.

The defense tried a frankly ridiculous “Karpeles-didit” approach, which was shot down by the judge the next day. Then the defense tried to elicit strange testimony from prosecution witnesses about insanely remote possibilities. The judge was having none of this. If the defense wants to introduce alternate suspects and alternate theories, rather than just triple-hearsay, they would need their own evidence and their own witnesses.

So in a final move, the defense attempted a bit of “trial by ambush”, disclosing two expert witnesses at well beyond the last minute with no details as to the expertise or opinions offered.

Of course, Dratel had to go with the ambush approach: these witnesses could only support the defense’s theories if the prosecution wasn’t prepared. Any Bitcoin expert unwilling to commit perjury would have to acknowledge that direct wallet to wallet transactions are traceable, that Ulbricht’s “legitimate” trading these Bitcoins would require unimaginably good returns, that Ulbricht’s “mining” these Bitcoins is impossible unless he had a room full of nonexistent computers, and that anyone willingly keeping several million in Bitcoin in Silk Road as a “bank” would have been a delusional idiot.

Similarly, if I had to pick a New York area expert to testify for the prosecution about the ridiculousness of the mysterious hacker who somehow managed to both plant evidence 2 weeks before, maintain persistent access, and yet leave no trace in the syslog or other logs, I’d select Steve Bellovin. In short, if the defense properly notified the prosecution, these experts would become tools of the prosecution: one last bounce in the rubble.

But of course, trial by ambush is frowned upon. The judge was particularly scathing, including a full page that basically translates to “this is case law saying you need to get your shit done on time” and such quotes as

Lacking are any expected opinions, lacking are the bases for such opinions. Lacking is any description of analysis or methodology. Lacking also is any indication that Antonopolous has any expertise in the areas in which he seeks to testify. His resume lists that he has worked as a consultant in crypto-currencies and published unnamed “articles” in that area (not a single publication of the alleged group of “200” is listed, let alone information sufficient to assess the seriousness or depth of such articles). Of course, not all consultants are experts.

and

If defense counsel truly planned his trial strategy around his ability to bend the rules and examine witnesses outside of the scope of their direct, then he should have had a “Plan B” that included complying with the rules. Defense counsel took a calculated risk.

In short, there is only one person responsible for the Defense not having their experts: the defense attorney Joshua Dratel.

And with that scathing order, the case pretty much ended. The defense has offered only a few character witnesses and no concrete evidence of the mysterious elves which planted not only the journal on Ulbricht’s computer, but also the mountains of remaining evidence.

Ulbricht received a fair trial. The judge was hard on the defense, but that is largely due to how the defense acted and their strange tactical decisions. The defense threw away the case in October, and then proceeded with farce for the trial.

When all you can do is pound the table, judges sometimes get mad and ask you to stop.