Five Years in Prison for Posting a Hyperlink - Free Barrett Brown Now!

Barrett Brown Sentenced to 63 Months in Prison, Looks Horrible in Mustard Yellow Jail Togs

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Yesterday at the Earle Cabell Federal Building, in the fine city of Dallas, Texas, a fellow named Andrew Blake wore a curious t-shirt to Judge Sam Lindsay’s court for a hearing to determine how much longer Barrett Brownought to stay in prison. Blake got his shirt while covering the trial of Chelsea Manning. It was black, with one word, in white, printed across its chest: “truth.” Before things got started yesterday, a federal marshal approached Blake and told him he had to cover up the word. In case you missed that: he had to cover up “truth.” In a courtroom. That’s how it went for much of yesterday, like a script for a bad movie that any reasonable studio executive would read and reject because no way could the plot transpire in real life.

No doubt you’ve already read the report I filed on the first part of this sentencing hearing. I apologize again for its length. Yesterday’s hearing ended a little before 2 o’clock, a full three hours shorter than the first go-round. If you think that a shorter day in court and my lingering remorse for having written way too many words back in December will here produce a shorter post, then you are mistaken. With my deepest regrets:

You’ll want to know about the marshals who maintain order in the court and how they dressed. I think we could do a fashion spread of federal marshals in D Magazine. They are a natty bunch. Yesterday one of the marshals wore a shawl-collared cable-knit sweater. It said, “Yes, I’m a federal marshal, but I’m also approachable. I can stay home and read a book by the fire just as easily as I can paint the town red.” Totally Fifth District sexy.

Ladar Levison, the former email provider for Edward Snowden, turned up to observe the proceedings. During one recess, he and I were talking in a hallway outside the courtroom. Marlo Cadeddu, who led Barrett’s defense yesterday, wore a smart red blazer over a black dress. As she passed by, she looked at me and Ladar and said, “I wore red today just for you.” (In my earlier report, I’d mentioned her red skirt suit.) Ladar looked at me and deadpanned: “Was she talking to you?” I hope this joke translates; it was brilliant.

I wore tan jeans and a blue Merino sweater over a t-shirt.

Federal sentencing guidelines are complicated. If you never played Dungeons & Dragons and then listened to a bunch of geeks play Dungeons & Dragons, that’s what it sounds like when a federal judge runs through multiple counts, adding and subtracting offense levels to determine how much of someone’s liberty he is about to take. Was the crime committed via “sophisticated means”? Add two levels. Is the defendant penitent? Subtract three levels. Is he a half-orc? Plus two for strength, but minus two for intelligence and charisma. At one point, as Judge Lindsay was adding it all up, I expected him to roll a 20-sided die.

But the math happened after the government and defense had had the opportunity to delight us with some truly bananas back-and-forthing. Or, as Judge Lindsay put it: “There is quite a bit of to and fro between the government and the defense.” By way of explaining how he planned to cut through all the to-ing and fro-ing, Judge Lindsay later said: “I have to look in the water and see if there are any fish.”

Let me focus on just one fish in the pond. To recap: there was a hack of a government contractor. Barrett, according to sworn testimony of a respected journalist named Quinn Norton, had practically nothing to do with this hack. But the hack produced a cache of material, some of which was credit card info, that was posted publicly on Pastebin. A link to that material was shared in a public IRC (internet relay chat) channel. Barrett then shared that same link in another channel. The government argued yesterday that Barrett, by reposting a link, was guilty of trafficking in stolen credit cards. Trafficking. That’s the fish I want to look at.

Cadeddu told the court yesterday that the government’s trafficking argument relied on a child pornography case that wasn’t analogous to Barrett’s case. In the porn case, someone gathered images and distributed them. The defense argued that, if you want to keep with the porn analogy, Barrett just said, “There’s porn over there.” (Except, really, he didn’t even know that “over there” contained porn; he reposted that link before he knew what it led to.) Judge Lindsay asked the government (in the form of prosecutor Candina Heath) if it had a precedent-setting case that more resembled Barrett’s. Less porny, more data-linky (my words). Heath did not have such a citation. There was hope.

Heath tried a different tack. Forget porn. How about drugs? She said that Barrett’s posting a link to stolen credit cards was just like what drug traffickers do, move drugs from one place to another.

At this point, Barrett was slouching in his chair, leaning generally to his left, sometimes using his hand to cup his right ear because his hearing isn’t good. Having been transferred to the Kaufman County clink, he was wearing different prison togs than on his last court appearance. No more DayGlo orange. In Kaufman, they prefer radioactive mustard yellow. Imagine the ugliest color in the world. You, too, would have trouble sitting up straight if you had to wear it.

Anyway, Cadeddu pounced on the drug trafficking analogy. She told the court that Barrett didn’t move anything. All he did was point to something, something that was already publicly available. And here is where Heath issued a phrase that I’d never before heard. She said that Barrett “took possession of accessibility” to the stolen credit cards. Let that phrase dance around in your head for a bit. Took possession of accessibility. It is a koan. I have been meditating on this phrase since yesterday and feel that I might achieve Zen enlightenment by as early as Sunday evening. So I got that going for me, which is nice.

Heath said the cache of stolen info was like a drug house, and it was as if Barrett had given people a key to that drug house. Cadeddu jumped from her seat to point out to the court that in Heath’s analogy, the drug house was a private location, whereas Barrett had provided a key to a public location.

Back and forth they went. To and fro. I must tell you that, try as I might, I couldn’t spot the fish. Not when it came to trafficking.

There were several such considerations about the three crimes to which Barrett had pled guilty. This single consideration, the question of trafficking, would add roughly a year of imprisonment to the upper end of what the sentencing guidelines would indicate. Judge Lindsay sided with the government. Rather than an upper limit of 51 months in prison, the guidelines now suggested 63 months.

Want to know the real kicker? The government knew it couldn’t convince a jury that Barrett had trafficked in stolen credit cards. It had dropped that charge (and a bunch of others) back in March. But that didn’t mean that Judge Lindsay couldn’t base his sentence on the dropped charge. Under federal guidelines, a judge can actually base a sentence on a charge for which a defendant has been acquitted. It’s true. (Cadeddu was kind enough to explain to me how federal sentencing guidelines work in general and how, more specifically, they worked on Barrett. If you’d like to learn more, read the first footnote at the bottom of this post.)

So things were not going well for Barrett before they started going disastrously. At about 11:30, Judge Lindsay asked if the defense had anything else it wished to add, and Charles Swift, the other of Barrett’s two defense attorneys, said that he would like to have someone make a few remarks on Barrett’s behalf, calling to the stand “Jim Rogers from the Dallas …”

As he trailed off, unsure of both my employer and my name, I worked to maintain control of my bowels. Bear in mind that at one point yesterday, Kevin Gallagher, the guy who has run Barrett’s legal defense fund, was removed from the courtroom briefly because a marshal didn’t like his facial expressions. Seriously. Cadeddu told me later that she’d never seen something like that happen. And I’ve already mentioned the “truth” t-shirt. You can’t imagine a more intimidating setting to deliver an extemporaneous speech on the First Amendment and the journalistic merits of your yellow-clad friend, whose very liberty could be compromised should you foul your drawers. Yes, in mid-December, at the first part of this hearing, I’d been asked by Barrett’s defense team if I’d be willing to take the stand and deliver remarks about Barrett’s bona fides as a journalist. Sure, sure. But back in December, after both the defense and prosecution had called their witnesses and left me out of it, I figured I wasn’t needed.

Then yesterday happened. No warning. No witness stand for a friendly Q&A. Swift called me to a lectern, which I approached feeling as if I myself were about to get sentenced. I stated my name for the record, tasted the metallic flavor that indicates your endocrine system has flooded your body with adrenaline, and left my body. Hovering up around the oil paintings of dead judges that hang in Judge Lindsay’s courtroom, I heard myself say something about how I thought Barrett was a legit journalist, how we’ve paid him to write for us, how I’d like to hire him once he gets out of prison. Either thirty seconds or an hour into my speech — time for me stopped, I traveled to Mars and back, civilizations rose and fell, I played lead guitar for Aerosmith, that baby from 2001: A Space Odyssey beat me in Connect Four, possession of accessibility was taken — I realized that while my bowels were holding, I was suffering from acute shake voice. So I abruptly stopped talking and crawled back to my seat on my hands and knees.

What I’m saying is this: I did not perform well. Several news reportsmention that I was the sole witness to speak in Barrett’s defense yesterday. Kinda sounds like I crushed it. I respect you too much to leave you with that false impression.

After me, Swift took the lectern. He talked about Barrett’s compromised mental state when he posted the YouTube threat against the federal agent. He blamed “the unique world of the internet,” where people say things that they’d never say to someone’s face. He talked about trafficking. He brought up “deflategate” in a way that seemed to entertain Judge Lindsay but which confused me. He said a few words about the First Amendment.

In response, Judge Lindsay said, “What took place is not going to chill any First Amendment expression by journalists. Because it was more than mere posting.” He repeatedly said that he believed Barrett was more involved with the hack than Barrett wanted him to believe.

Then it came time for Barrett to make his allocution. He shuffled up to the lectern and, with a marshal standing behind him, delivered a 3,000-word speech, the full text of which I have included in a second footnote. If you don’t want to read the entire thing, I’ll sum up for you. In so many words Barrett said, “I’m really sorry about the stupid stuff I did. But are youkidding me? The FBI tells lies. And the federal government gets to decide who is and who is not a journalist based on nothing more than what is convenient for keeping someone locked up.”

Read the rest of the judge’s crimes here:

http://frontburner.dmagazine.com/2015/01/23/barrett-brown-sentenced-to-63-months-in-prison-looks-horrible-in-mustard-yellow-jail-togs/