By Matthew Russell Lee, Patreon Thread Song
Decrypt - Q&A - Pod - Brutal Kangaroo Book
SDNY COURTHOUSE, Feb 22 – When jury selection was completed for the retrial of accused CIA Vault 7 leaker Joshua Schulte, U.S. District Court for the Southern District of New York Judge Jesse M. Furman told the jurors, Do not read or say anything about the case. Inner City Press was there.
[July 20, 2022 order on access here; Brutal Kangaroo]
On February 22, 2023, while denying most of Schulte's legal claims about restrictive Special Administrative Measures, Judge Furman declined to dismiss his claims on sewage and plumbing: "Schulte’s complaint with respect to the sewage and plumbing issues plausibly invokes the negligent guard theory. He alleges that his cell experienced “constant sewer leaks,” culminating in the October 30, 2020 leak. Sewage Compl. 2-3. He further alleges that he notified the corrections officer on duty immediately upon realizing that his cell was flooding with sewage and that no MCC staff did anything to alleviate the problem. The fact that MCC officials both ignored the prior leaks and failed to address the October 30, 2020 leak could support a finding that the officials were lazy and inattentive." Full order here.
Back on July 25 after conviction Schulte sent his own letter to Judge Furman that "we intend to seek immediate sentencing on the counts of conviction" and that he wants "once-weekly SCIF days as the CP case has classified forensic evidence - home computers and servers that were 'classified.'"
Co-stand by counsel Colson was previously asking Judge Furman "to be relieved as counsel in connection with Mr. Schulte's child pornography case," and offering to filing a supplemental letter under seal.
The government, too, goes under seal - apparently without noting it in the docket. On September 28, Schulte's hard working stand-by counsel wrote to Judge Furman that she was informed on September 26 at 8:18 am that "Mr. Schulte would not be produced for his scheduled 8 am SCIF appointment... based on a sealed order."
Judge Furman responded, into the docket, asking if anything can be disclosed to the defendant. But what about the public?
On October 6, Judge Furman ordered some unsealing, and asked Schulte to respond to US offer of ... a typewriter.
On November 10, it was typewriter, pen or no more pro se motions. Summary: "MEMORANDUM OPINION AND ORDER as to Joshua Adam Schulte on Doc. No. [969]: In short, there is no merit to Defendant's argument that he is entitled to a laptop under the Constitution or otherwise (let alone to his suggestion that, if he is denied a laptop, the Government should be "force[d]... to use a typewriter as well," Def.'s Letter 2). And to the extent the Court has discretion over the matter, the Court exercises its discretion to deny Defendant's request for a laptop to prepare his post-trial motions. If Defendant does not want to use a typewriter or pen to prepare his motions, he has two choices: He can forego filing any motions or he can decide to give up his self-representation with respect to the post-trial motions and allow appointed counsel to file any motions on his behalf."
After two handwritten letters from Schulte which described conditions and mentioned suicide, Judge Furman asked for and got a government update, then ruled: "MEMO ENDORSEMENT as to Joshua Adam Schulte on [982] Status Report filed by USA: The Court thanks the Government for this comprehensive update and counsel on both sides for their efforts in response to Mr. Schulte's letters. The psychological report (which the Court will file and maintain under seal) indicates that Mr. Schulte "reported he is not thinking about a hunger strike or suicidal attempts." It also indicates that he candidly admitted that he "said what [he] said" in his letters to the Court "so [he] could get attention from the media... since social media is so quick to broadcast [his] charges." The Court will not tolerate any further efforts by Mr. Schulte to use this case to conduct a media campaign, let alone to do so by making inflammatory statements that are false or misleading. To that end, and mindful that the Court has broad discretion to reject pro se filings made by Mr. Schulte with respect to any matter as to which he has counsel (that is, the entirety of his case other than his post-trial motions), see ECF No. [979], Mr. Schulte is cautioned that future pro se submissions may not be publicly docketed. SO ORDERED. (Signed by Judge Jesse M. Furman on 12/15/2022)."
Watch this site.
Back on August 7 Schulte's lead counsel requested, and August 8 Judge Furman endorsed, "On July 28, 2022, Mr. Schulte was handed a search warrant, and his laptop from the Metropolitan Detention Center located in the Eastern District of New York was seized by the government." Full letter on Patreon here.
On August 30, the US Attorney's Office wrote to Judge Furman: "Dear Judge Furman: The Government writes in response to the Court’s order, dated August 26, 2022, directing the Government to provide an update regarding the review of the defendant’s laptop pursuant to a search warrant (the “Warrant”) issued by a magistrate judge in the Eastern District of New York for the search and seizure of the defendant’s laptop. The Government’s review of the laptop remains ongoing."
On August 31 Judge Furman ordered: "MEMO ENDORSEMENT as to Joshua Adam Schulte on [937] LETTER MOTION re Proposed PreTrial Motion Schedule: The parties shall appear for a conference on September 7, 2022, at 3 p.m. in Courtroom 1105 of the Thurgood Marshall United States Courthouse."
Inner City Press went, and now provides this summary two hours later. Judge Furman admonished Schulte for his letter, docketed on September 6 by the Pro Se Office but dated July 31, which among other things called the Government "c*ck hungry." Letter on Inner City Press' DocumentCloud here. Judge Furman said Schulte might forfeit his right to represent himself.
Schulte said the laptop they seized had never been connected to the Internet. In the EDNY there is now a proceeding about the search warrant, on which we hope to have more.
Judge Furman declined to direct that Schulte get another air-gapped laptop, but adjourned the post-trial motion schedule "sine die."
He was told that Schulte's family may retain counsel for the next (Sept 11, 2023) trial. Judge Furman said that would not change the schedule.
The US Attorney's Office is to provide an update on the laptop by September 12.
On September 12, the US filed a letter starting "The Government’s review of the laptop remains ongoing, and at this time we are not in a position to estimate the time frame required to complete the review." Full letter on Inner City Press' DocumentCloud here.
Docketed on September 19 was Schulte's response, "I cannot agree to the government's 'offer' of a replacement laptop as it would not allow me to work on my motions." What next?
Back on August 5 Judge Furman relieved previous co-stand-by counsel Colson, but declined her suggestion that David Stern be her replacement: "ORDER as to Joshua Adam Schulte. On July 25, 2022, the Court received a motion from Deborah Colson to be relieved as defense counsel. See Doc. No. 886. The Court granted the application but reserved judgment on whether or whom to appoint in Ms. Colson's place. The Court concludes that new Criminal Justice Act counsel is appropriate and hereby appoints Caesar De Castro the CJA lawyer on duty today (who has the appropriate security clearance as well). (Signed by Judge Jesse M. Furman on 8/5/22)." It's for the CP case.
Vlog (shot in Brooklyn by EDNY) here.
Back at the beginning of the re-trial: Judge Furman: I'm going to announce the selected jurors. [He reads out 16 names. Inner City Press took fast notes - on on Patreon here]
Inner City Press filed opposing the sealing of the courtroom for CIA witnesses, and once the witnesses begin anticipates making other filings.
The June 14, 2022 opening arguments, as live tweeted by Inner City Press, are here.
On June 15, Schulte in his own defense engaged in his first cross examination, of FBI Agent Evanchec. Inner City Press live tweeted it here.
On June 16, Schulte completed his cross of Evanchec - then the US put on CIA supervisor Anthony Leonis in a (mostly) sealed courtroom, Inner City Press which seeks to unseal was there then later live tweeted here.
On June 17, Leonis finished his direct and was cross examined by Schulte, with a deadline to finish before the end of the trial day. Inner City Press live tweeted it here.
On June 21, MITRE's (and now Microsoft's) Patrick Leedom did direct and then some cross examination by Schulte. Inner City Press live tweeted here.
On June 24 the trial resumed and Inner City Press live tweeted here.
On June 27, FBI agent Michael Berger was cross examined, thread here.
On June 28, Day 8, the courtroom went sealed again, and without at least one of the feeds that was supposed to exist. Inside, "Jeremy Weber" was being cross-examined by Schulte. At day's end Schulte told Judge Furman he has ten more pages of questions for Weber, after finishing with 50 pages. The next witness, too, is sealed. But Inner City Press is staying on the case, and the background (see a launch of sorts, here).
On June 29, Schulte cross examined Weber at the opening, and waited for cooperator Carlos, about use of cell phone(s) in MCC, at the end. Inner City Press live tweeted, here.
On June 30, Schulte cross examined Betances, then FBI Special Agent Schlessinger, thread here
On July 6, both sides rested after questions, which Inner City Press live tweeted here and below. Inner City Press is covering the trial(s) and writing a book(let) about it
On July 7, the closing arguments, which Inner City Press live tweeted here.
Filed July 7, but docketed on July 8, this: Josh Schulte's pro se filing to Judge Furman about National Defense Information, asking, If the government maintained recipes for hot chocolate under lock and key, could they charge an individual for leaking that recipe under the Espionage Act?
On July 8, Judge Furman read his legal instructions to the jury and they began deliberating, first asking for a market then the testimony of US expert witness Leedom. Inner City Press live tweeted it here.
On Monday, July 11, the jury came in from 9 to 5 but did not ask a single question. Tale told from the inside here, Patreon here.
On Tuesday, July 12, the jury asked for the transcript of witness Berger - and a question about "substantial step(s)." Inner City Press live tweeted here.
On Wednesday, July 13, after a question about the grand jury subpoena, the jury returned with a verdict, nine of them - all guilty. Inner City Press was there, and live tweeted it, here:
#breaking: In CIA #Wikileaks re-trial of Joshua Schulte, there is a verdict. But it hasn't been announced yet. Inner City Press has covered the case, heading to courtroom for verdict now...
US V SCHULTE COUNTS 1 TO 9 GUILTY ON ALL COUNTS
There are 2 extra US Marshals behind Schulte, for a total of four. Jury exiting
Judge Furman: No sentencing date, given the other charges pending. Status conference set for July 26 at 3 pm. Adjourned. Brutal Kangaroo book here.
On July 15, Judge Furman mentioned but did not docket and apparently will not release a submission to him about the case: "On July 15, 2022, the Court received an email from a member of the public purporting to have information about this case. The Court will provide the email to both parties. Absent an application from either party, the Court does not intend to take any other action in connection with the email. In light of that, there is no right of public access to the email and it will remain under seal unless and until the Court orders otherwise." The argument, as in US v. Edwards, was and is "non-judicial document."
An interested media would have to be pretty lame to see a docket entry like that and not make at least a request to unseal the e-mail.
Inner City Press on July 20 made a request that the email be unsealed, arguing that "access to the [document might] materially assist the public in understanding the issues beofre the ... court, and in evaluating the fairness and integrity of the court's proceedings." Bernstein v. Bernstein Litowitz Berger & Crossman LLP, 814 F.3d 132, 139-40 (2d Cir. 2016) (quoting Newsday LLC v. Cnty. of Nassau, 730 F.3d 156, 166-67 (2d Cir. 2013) (alterations in original)."
Judge Furman denied it: "ENDORSED LETTER as to Joshua Adam Schulte addressed to Judge Jesse M. Furman from Matthew Russell Lee, Inner City Press dated 7/20/22 re: Press request to docket and unseal the email received by the Court on July 15, 2022 "purporting to have information about" US v. Schulte, 17-cr-548 (JMF)... ENDORSEMENT: Application DENIED. It is well established that the mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access. United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). Instead, an item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document. Id. In light of that standard, there is no basis to conclude that the unsolicited email -- which, for all the Court knows, is from a random member of the public with no connection to this case -- is a judicial document. That is, absent some basis to believe that the email is legitimate and that the author of the email actually does have information pertinent to this case, the email has no relevance to the judicial function or use in the judicial process. Accordingly, the application is DENIED. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/20/22)." One might ask, if it was enough to mention in the docket, what is the benefit of keeping it sealed, in terms of court transparency? It had to be asked.
(By comparison, SDNY Judge John G. Koletl on July 25 in another case docketed an over the transom submission, behind an order stating "The Court received the attached letter, which it forwards to the parties" - publicly. We are inquiring into the difference.)
Judge Furman in response to Inner City Press request to unseal all of Schulte's civil case ordered in part that ".On July 5, 2022, Matthew Russell Lee, representing Inner City Press, submitted the attached request to unseal certain documents filed in this case. The case was sealed before being reassigned to the undersigned. The Court concludes that there is no reason for the majority of the docket to remain under seal, and it will now be unsealed. The sole exception is Plaintiff’s submission at ECF No. 2-1, which is undergoing review. If, after review, the Court concludes that it need not be sealed, the Court will promptly enter an order unsealing it."
A week later, and no order, no further unsealing.
Coverage will continue.
Here's from Judge Furman June 13 Order: "as discussed on the record at the classified hearing held on June 8, 2022, the Court concludes that the particular statement Defendant seeks to admit is admissible. The Court further concludes that the information should likely be admitted as a stipulation, which would give Defendant “substantially the same ability to make his defense as would disclosure of ” a portion of the document itself, pursuant to CIPA Section 6(c). See 18. U.S.C. app. 3 § 6(c). Accordingly, the parties shall propose an agreed upon stipulation or competing stipulations for the Court’s approval no later than June 17, 2022."
Previously, in the conclusion of the month long trial of accused CIA leaker Joshua Schulte, on the morning of March 9, 2020 the jury returned guilty verdicts on Counts 8 and 10, with mistrial granted on all other counts. U.S. District Court for the Southern District of New York Judge Paul A. Crotty set March 26 for the next date.
Then it was moved to April 22 (then May 18). March 9 thread here. Song here.
Back on April 13, 2022, Judge Furman held a conference with Schulte present. Inner City Press live tweeted it here....
[And see its Oct 15 MCC video here]
On March 2, 2021 were the closing arguments [in the first trial], which Inner City Press tweeted, thread here
More on Patreon here.
See Inner City Press filing into the docket on Big Cases Bot, here. Watch this site. The case is US v. Schulte, 17-cr-548 (Furman).
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