Judge Says Defendant Has Right To Examine FBI's Hacking Tool While Stating FBI Has Right To Withhold Details

from the gridlock dept

As we covered recently, the judge presiding over Jay Michaud's case in Washington -- part of the FBI's Playpen child porn sting operation -- recently declared the FBI did not have to turn over information on its hacking tool to the defense. How Judge Robert Bryan arrived at this conclusion wasn't fully explained during his oral order, but it had something to do with the government's secret, judge's-eyes-only presentation that preceded the order.

It also may have had something to do with the government's declaration that it wouldn't be turning over this information to Michaud under any circumstances. Either way, Bryan arrived at the contradictory conclusion that the FBI did not need to turn over this information despite conceding the defense had a right to see this information.

A written ruling has been issued which offers a bit more in the way of explanation while simultaneously failing to deliver Judge Bryan from the conundrum he has created. (via Ars Technica)

The government’s oral arguments on February 17 and May 12, 2016 and its related briefing addressing materiality essentially amount to an ipse dixit argument, without convincing expert support, that 1) giving the defendant full access to the N.I.T. code will not turn up anything helpful to the defense, and 2) a showing of materiality demands facts, not hypotheses, and the defendant has done nothing more than fabricate guesses about what the N.I.T. code could show.

Bryan believes the government is entitled to withhold this information. He also believes the information should be handed over to the defense for a number of reasons.

These arguments bear little fruit. The defendant is not required to accept the government’s assurances that reviewing the N.I.T. code will yield no helpful information. The government asserts that the N.I.T. code will not be helpful to the defense, but that information may well, in the hands of a defense lawyer with a fertile mind, be a treasure trove of exculpatory evidence.

Judge Bryan points out the information still has worth to the defendant even if it doesn't show anything that could result in suppressed evidence. It could also be the details do nothing more than further cement the government's case against Michaud. If so, all the more reason for the defense to have access to it.

Furthermore, even if the defendant’s review of the N.I.T. code ultimately only yields inculpatory evidence,“[e]ven inculpatory evidence may be relevant [because a] defendant who knows that the government has evidence that renders his planned defense useless can alter his trial strategy.

Acknowledging the conundrum is the first step.

The resolution of Defendant’s Third Motion to Compel Discovery places this matter in an unusual position: the defendant has the right to review the full N.I.T. code, but the government does not have to produce it. Thus, we reach the question of sanctions: What should be done about it when, under these facts, the defense has a justifiable need for information in the hands of the government, but the government has a justifiable right not to turn the information over to the defense?

According to motions filed by Michaud, one way out of the mess is the dismissal of the case. Bryan doesn't exactly seem amenable to that outcome -- especially given his belief that the FBI's secrecy is justified -- but with this much paint surrounding his corner, he may be forced to resolve this in favor of the defendant, rather than continue to lock him out of information that could drastically alter its outcome.

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Filed Under: catch 22, doj, fbi, hacking, jay michaud, malware, nit, robert bryan