Yesterday we published an article by US imprisoned journalist Barrett Brown in which he identified several key legal errors in his prosecution. Other legal errors have been identified by ourselves, Lada Levison, Jan Ludwig, and Dell Cameron. Below we pull together these errors in summary form (and reference the sources). This may prove useful for any media and/or legal campaign to demand that Brown’s prosecution be declared a miscarriage of justice and his sentence quashed.
In total these legal errors demonstrate a clear bias against Brown and an argument that his prosecution was political and the sentence he received punitive and vindictive.
1. Prosecution raised matter of an attempt Brown made to conceal from the government the identities of certain contacts “pro-democracy activists living under Middle Eastern dictatorships such as Bahrain, with which the U.S. is known to share intelligence on such things”. This matter had nothing to do with the offences he was charged with. [Source: BB]
2. Prosecution case included “41 false statements” . For example, during his pre-sentencing allocution Brown reminded the court that, at his bond hearing, a federal agent swore “that I have lived in the Middle East, a region I have never actually had the pleasure of visiting.” [Source: BB]
3. Prosecution introduced erroneous ‘evidence’. “The prosecution attributed to me the following statement: “Dead men can’t leak stuff … illegally shoot the son of a bitch.” I will admit that this is clearly an outright call for murder, and thus would certainly seem to warrant an F.B.I. investigation. The problem is that it wasn’t I who uttered this, but rather Fox News commentator Bob Beckel, who said it on national television in the course of a no-doubt productive discussion about Wikileaks founder Julian Assange. I had merely quoted the statement on my Twitter feed—in disapproval, of course, as I happen to admire Assange, and he, himself, has put out a statement expressing astonishment that the U.S. government would attribute to me a call for his murder made by someone else on a major cable news network. [Source: BB]
4. “Two days before my sentencing…the D.O.J. withheld from my defense team sealed chat transcripts from the Jeremy Hammond hacking case which contradicted its key claim that I was a co-conspirator in the Stratfor hack.” [Source: BB]
5. “At the 16 December 2014 sentencing hearing the Prosecution provided, without warning, 500 pages of evidence, not previously submitted. Defense attorneys can argue that this should not have been permissible at that stage and that in presenting that evidence the Prosecution attempted to prejudice the case against Brown further.” [Source: Undercoverinfo]
6. “The case against Brown was flawed because Brown was merely involved in journalistic analysis in the same way that many leading newspapers analyse data. Several major media outlets published articles about Stratfor, based on what had been provided by hactivists. Journalists have a right to report on material illegally obtained by others, as upheld by a 2001 Supreme Court ruling. The Prosecution argued in court, however, that “It doesn’t matter the number of hands it passes as long as they know its stolen property.” If that is correct, then the US Government should be prosecuting those media outlets that published information about Stratfor too.” [Sources Dell Cameron and Undercoverinfo]
7. Re the charge against Brown of “obstructing the execution of a search warrant (by allegedly hiding his laptops). These laptops contained journalistic sources and work product, including a book-in-progress. The First Amendment protects reporters from revealing confidential information or sources.” [Source: UndercoverInfo]
8. “The punishment he received was overtly related to offences he was not charged with: forwarding URL containing data about Stratfor. The judge “enhanced Barrett’s sentence for his use of “sophisticated means,” or his ability to cut and paste a hyperlink”.” [Source: LL] All articles asserting that the link was to an archive of millions of Stratfor e-mails are incorrect. I still don’t know exactly what was in the file I actually linked to, as I never opened it after downloading. [Source: Jan Ludwig] The URL was “already public, and which led to a file which was already itself public, and to which other journalists had also linked without being prosecuted for it”. [Source: BB] Chat logs showed that Brown had no intention of compromising the security of Stratfor personnel credit card details (as alleged by the Prosecution). [Source: Dell Cameron] Re. the matter of forwarding a link, lawyers for Brown “filed a legal memorandum: they correctly argued these charges were effectively a violation of the First Amendment, pointing out that “publishing a hyperlink does not itself move, convey, select, place or otherwise transfer, a file or document from one location to another”. [Source: UndercoverInfo] “By bringing the matter of the shared link up on Tuesday the prosecution has ensured the case against Brown is contaminated.” [Source: UndercoverInfo] Note: a hyperlink to an extract of the controversial Stratfor data brought up at Brown’s hearings was republished in the Levison article (published in the Guardian newspaper last Saturday.)