“Lots of bench conferences and long recesses — this hearing has it all!” That was the sarcastic assessment yesterday of Tom Korosec, who was covering Barrett Brown’s sentencing hearing for Bloomberg. Tom and I know each other. He has written for both D Magazine and D CEO. We were standing around during an afternoon recess, marveling at how little Tom would have to work with when it came time to file his story. Before lunch, Judge Sam Lindsay had already warned everyone that things were moving so slowly that he wouldn’t issue his sentence until January 22.
In fact, that’s how the hearing had started, with a long bench conference. Judge Lindsay called the three defense lawyers and the lead government lawyer up for an extended whisper session. There is a lot of whispering in federal court, which is much more like church than the county courts you might have had an opportunity to visit (surely as a prospective juror) in the Frank Crowley Building. This was Earle Cabell, baby. The Northern District of Texas. Dark wood pews matching wood paneling that climbed halfway up the walls. Above the paneling, oil paintings of dead judges hung like Stations of the Cross. Barrett’s family sat clustered together — his mother and father, divorced, both remarried — on the government’s side of the court. His mom, aunt, and grandmother all had the same sassy neck-length haircut, the same high cheekbones, the same dour expression on their faces. They looked to me like they were attending a funeral.
Before Barrett entered the courtroom, a federal marshal came over and warned the family not to communicate with Barrett — in any form or fashion. If they did, they’d be asked to leave the courtroom. The marshals at Earle Cabell, it should be noted, do not play around. One wore a three-piece suit with a pocket square. Another nearly kicked someone out for chewing gum.
So then Barrett made his entrance wearing DayGlo orange jail togs, legs shackled. He’s 33 years old, but he looked 18 and carried himself like he was 80. He walked slowly, stiffly, his shoulders hunched as if his back hurt, his clothes hanging on his slight frame like he’d accidentally grabbed his beefy cellmate’s stuff instead of his own. He gave a furtive nod to his mother before taking his seat at the defense table.
In a minute, I’ll write about a witness for the defense who spoke briefly about the New Journalism and how its practitioners aim to expose their biases. For now, I just want you to imagine that your son has been locked up for more than two years. Then imagine that you get to see him. But you’re not allowed to acknowledge him. Never mind a hug. You can’t even wave to him. Here I would like to reveal my bias: this is cruel.
But so what? If you bought the government’s argument yesterday, Barrett doesn’t deserve any sympathy. Kevin Krause did a great job of breaking it down (especially given how quickly he did it). The government painted Barrett as a leader of Anonymous, someone who knowingly stole and distributed credit card information, a wreaker of real and serious damage. His victims were many, and his “relevant conduct” (a term of art in sentencings) was of such reprehensibility that he deserves the eight years of imprisonment he’s facing.
To help make its argument, the government, led by prosecutor Candina Heath, kicked off the non-whispered part of the proceedings by introducing nearly 60 exhibits, emails and chat logs recovered from Barrett’s computer. The exhibits filled 500 pages. Barrett’s lead defense attorney, Charles Swift, objected to the entire lot of exhibits, pointing out that the first time he’d seen them was that very morning. Judge Lindsay grew exasperated when he realized that the court was going to have to let Swift read through each exhibit and give him a chance to object to each one individually. “Okay, we can do it the hard way,” the judge said. But then he quickly reconsidered and called a bench conference, after which a 30-minute recess was called so that Swift could have time to review the exhibits. (Tom Korosec made a joke about how glad he was that Bloomberg was paying him by the hour.)
You need to be able to keep these characters straight. Swift is a red-faced guy in a dark suit. His well-nourished belly prevents his tie from reaching his belt buckle. He has a dramatic way of asking questions that makes everything he says sound like “Aha! Gotcha!” But he has trouble keeping names and terms straight. IRC (internet relay chat) repeatedly becomes ICR when he questions the witness. The witness corrects him. Repeatedly. One company that was hacked, Strategic Forecasting, he can’t help but call Strategic Force, even after he is corrected by the witness, like, 70 times.
Also working for the defense is Ahmed Ghappour. He doesn’t speak for the record at any point but wears a smartly tailored suit that is rivaled only by the marshal’s three-piece. Rounding out the defense team is raven-haired Marlo Cadeddu, who wears a red skirt suit to court and, with only two hours of sleep, is the sharpest person to speak in front of a mic (rivaled only by the defense’s witness, Quinn Norton, she of the New Journalism, who I promise we’ll get to in a bit).
On the government’s side is Heath, with her dark skirt suit and blond ponytail. She’s got a square jaw and strong legs that suggest if you’re putting together a co-ed soccer team, Heath is your first choice for center midfield. Maybe she doesn’t have great touch on the ball. Maybe she’s a defender. I’m not sure. Either way, she’s not afraid to mix it up, draw a yellow card.
When the court returned from recess, Swift objected to some of the exhibits in batches, about 10 or so were thrown out, and then Heath, with help from the government’s witness, FBI agent Robert Smith, proceeded to put everyone in the court to sleep. Agent Smith has a soporific voice that tends to trail off as he’s finishing a sentence, like he’s reading the last line of a bedtime story to a child. The judge warned him about this once, asking him to speak up. But so Heath went through each exhibit, one by one, asking Agent Smith to read parts of them. Remember, Agent Smith was reading Barrett’s emails and IRC logs, which meant he was speaking in the first person, as Barrett. This is the agent that Barrett is accused of threatening, and there he was, in essence, pretending to be Barrett, sleepily saying things like “I am taking over Anonymous. I now have more control than ever. I am a strategist, a pseudo-journalist, a propagandist, an activist, a troll.” It was weird, and it went on for hours.
I ate lunch at Subway.
After lunch, when the witness was finally passed, Swift took the mic and laid into Agent Smith with energy and aimlessness.
“Do you know who conducted this hack?” Swift asked at one point, in a way that suggested the answer would undo the government’s entire case.
“O,” said Agent Smith, referring to a hacker who used that single letter as a moniker.
“Who?” asked Swift.
“O,” said Agent Smith.
“Oh,” said Swift, catching on.
Judge Lindsay stopped down several times to let both sides know he wasn’t overly impressed with their work. “You’re going too far with these exhibits,” he said. “It sounds to me like that’s what’s happening here. Both sides are trying to get the last word. I know the media are out there. I know what’s going on. I wasn’t born yesterday.” More than once he overruled an objection from one side or the another, saying he’d allow a line of questioning but was likely to ignore it in considering Barrett’s sentence because the proceedings had gone so far afield. If the marshals had allowed me to bring bourbon into the courtroom yesterday, and if I’d been playing a drinking game in which you did a shot every time Judge Lindsay uttered the phrase “far afield,” I would have gotten drunk enough to make a pass at the court reporter.
Me: “Can you read that back to me?”
Court reporter: “Mr. Rogers: ‘Hey, sweetheart. How would you like to approach my bench?’ ” (Note: I’m still working on this joke and reserve the right to object to it later and either redact or alter this post.)
The heart of the matter, where Agent Smith’s testimony was concerned, involved two questions. Let’s see if I can explore them here with a succinctness that was missing from yesterday’s hearing.
First question: how involved was Barrett in certain hacks? The government argued that he was very involved, that he helped orchestrate them, that he helped pick targets, that he recruited people to do the actual work of hacking. The government made this argument almost solely based on Barrett’s own words, from his emails and IRC logs. Barrett himself said he did all those things.
Here’s the problem with that. Will you indulge me? Do you mind if I quote myself? When I profiled Barrett, I said of him: “Until you’ve spent some time with him, it’s hard to know what to believe. When you’ve gotten to know him better, it’s even harder.” Barrett, in my experience, likes to talk a big game. He exaggerates. If you take some of the things he’s said out of context, they sound bad. But I think those decontextualized declarations fall short of evidence, in the strictest sense. If I told you I killed someone, that sounds horrible. But is it evidence that I did it?
One more point about this first question: more than once during the proceedings, the notion of what a troll is came up. If you have to explain trolling to someone, you’re lost in this discussion. It would be like asking the judge to decide a matter that involved algebra and then explaining what a 5 is. If you don’t understand the ethos of trolling, then you don’t understand Anonymous, and you don’t understand Barrett Brown. You don’t get how misleading it can be to take his words at face value.
I am failing at succinctness.
Second question concerning Agent Smith’s testimony: what about those stolen credit cards? The government argued that Barrett knowingly trafficked in cards that were stolen in a hack and that, at bare minimum, his actions harmed 113 people whose accounts were fraudulently charged. Defense argued that all Barrett did post a link to a publicly accessible site where the stolen card information resided. Heath said that stealing a stolen car is still stealing. Cadeddu jumped on the analogy. Barrett didn’t steal a car, she said. He told people where a stolen car was parked.
Let me again reveal my bias. The thing about the stolen credit cards is poppycock — and not because Barrett didn’t know his link pointed to stolen cards, which the defense argued. Maybe he knew he was linking to stolen stuff, maybe he didn’t. Point is, he only linked to it. Cadeddu got a little melodramatic when she said the government’s argument should chill every journalist and researcher “to the bone.” But yeah. He linked to something. We’ve got a real problem here if people can get in trouble for simply pointing to material that’s publicly available.
The other reason the credit card thing is poppycock lies with the number of victims. Agent Smith did a lot of work to figure out exactly how many cards were fraudulently charged after Barrett posted the link to them. The number came to 113. This matters because sentencing guidelines rely, in part, on the number of victims. The trove of stolen credit cards numbered more than 5,000. They were dumped on the internet and were being exploited before Barrett linked to them. There’s no way to prove that the 113 that were exploited after he posted the link were exploited as a result of his link.
And, again, it is quite possible he didn’t know what he was linking to. And, even more again, all he did was post a link to publicly available material.
Which brings me, finally, to the defense’s witness, the aforementioned Quinn Norton. Norton has written for The Atlantic and Wired. She knows a whole lot about Anonymous and has spent countless hours lurking in IRC rooms, reading what these people were saying. Too, she has interviewed many of the hackers involved with the events in question. She knows her stuff, and she’s not afraid to use big words. (She dropped “schadenfreude” pretty quickly, but that’s not much of a challenge for anyone who digs words. The highlight, for me, was when she reached into her bag and pulled out “tautological.” Heath in cross questioning: “If there were only two people in a chat room having a private conversation, would you be watching it?” Norton: “[smiling] No. That’s tautological.” Heath: “What?” Norton: “Tautological.” Heath: [realizes she doesn’t want to ask the witness to define “tautological,” moves on])
Norton took the stand around 4 o’clock. (How time flies!) Her testimony addressed two points. First, how involved was Barrett with the actual hacking? Norton said he wasn’t. She interviewed the people who did it. They told her Barrett had nothing to do with the hack in question. In fact, they were pissed at him for speaking publicly about the hack in a way that suggested he had any knowledge of their work. When it comes to this question, Norton was a far better witness than Agent Smith. Agent Smith just read a bunch of Barrett’s emails. Norton watched the hack happen and talked to the people who did it.
The other point addressed by Norton’s testimony — 5 o’clock, tick, tick — was whether Barrett is a journalist. Heath asked her a question that ran to whether, as a journalist, she was always objective (trying, I assume, to establish a contrast between a real journalist (Norton) and a not-journalist (Barrett)). Norton said that she didn’t necessarily aim for objectivity, that she considered herself a New Journalist. At which point Judge Lindsay stepped in and asked Norton to explain what she meant, and Norton attempted to give him a quick lesson on the history of journalism over the last 50 years, explaining that writers like Tom Wolfe think that traditional journalists try to hide their biases, while New Journalists reveal and exploit them (the biases), and so on and so forth. Judge Lindsay didn’t follow, saying that revealing a bias to get to a deeper truth sounded like an oxymoron to him.
That’s a big problem, I think. It’s like the troll thing. To understand what’s at stake here, to appreciate the context, you need to know what a troll is, and you need to know what a journalist is in the year 2014. I counted six people in the courtroom taking notes. Three of us (me, Krause, Korosec) looked like journalists, which is to say that we were wearing blazers and/or writing in actual reporter’s notebooks (I nailed the blazer but, for reasons I won’t go into here, was taking notes on the back of a galley printout of a story that will run in the February issue of D Magazine). Two other note-takers looked like high school kids who’d gotten permission to miss school so they could work on an extra-credit project for government class. And the last guy was wearing a blue Adidas track suit. (The marshals watched this guy with great interest. As did I.)
So who of the six of us was a journalist? Well, certainly the three of us who I know for certain were being paid to take notes (though as this post grows longer and later, I’m beginning to worry that my employer’s trust in me has been misplaced). What about Track Suit Guy? For all I know, he works at the downtown CVS, not far from the Earle Cabell building, and he popped over to take notes because he’s a fan of The Barrett Brown Review of Arts and Letters and Jail. For all I know, Track Suit Guy has a Tumblr to which he has already posted a far more cogent, far more succinct report on yesterday’s hearing. Or maybe it’s a first-person account of what it’s like to wear a blue Adidas track suit to a federal courtroom. Either way, I’m happy to call the guy a journalist.
There is no question that Barrett is a journalist. And he’s an activist. And a propagandist. He’s all those things. He toggles between those roles just like he sometimes toggles between sincerity and sarcasm, the unvarnished truth and absurdist exaggeration.
And as I watched him being led out of the courtroom for the last time yesterday, after Judge Lindsay had more or less given up and told the two sides he’d heard enough, even though they’d never gotten around to arguing about whether Barrett’s YouTube threat of Agent Smith was credible, nor had they discussed an important technical matter about “grouping” — as I watched Barrett shuffle out and give a quick wink to his family, I couldn’t help but think that the guy has been locked up long enough. Another month seems unfair. Eight years would be profoundly nuts.
But that’s just me. I’m biased.
[Note: this post originally referred to the court officers as bailiffs. That mistake was corrected. My apologies to the well-dressed men of Judge Lindsay’s court.]