US judge laments juror exposure in ‘weak’ case

SAN FRANCISCO -- The judge handling the first federal trial to resume in California slammed prosecutors Tuesday for reconvening a pool of anxious jurors to continue what he considers a weak case.

Overseeing criminal proceedings for suspected Russian hacker Yevgeniy Nikulin, U.S. District Judge William Alsup said, "There's no evidence in this case that this defendant did this."

Nikulin's trial resumed on Monday after nearly four months. He faces a statutory maximum of more than 30 years in prison and $1 million in fines if convicted on nine counts related to stealing and exposing sensitive data of up to 100 million LinkedIn, DropBox and Formspring users in 2012.

There were six requests among 16 jurors to be excused. Alsup dismissed four who presented health-related hardships. USA v. Nikulin, 16-CR-00440 (N.D. Cal., filed Oct. 20, 2016).

On Tuesday, Alsup said federal prosecutors have largely failed to prove Nikulin was responsible for the hacks on the Silicon Valley Technology companies. He urged them several times to provide better evidence since the trial is expected to wrap up on Wednesday.

In one exchange, the judge stopped Assistant U.S. Attorney Michelle Kane from reading a transcript of Nikulin's phone calls in prison asking for more computer magazines. He called it prejudicial and irrelevant other than to show he was in jail.

"If that's evidence of guilt, God help us in this country," he said. "That's terrible."

Alsup said the evidence is likely to backfire on prosecutors.

"The jury is going to say, 'What case does the government have if that's what they resort to?'" he said. "You might end up losing the case because of stunts like that."

Multiple experts from the hacked companies have testified they were able to trace the origin of the hacks back to a Russian IP address belonging to the email chinabig01@gmail.com.

Alsup reasoned that a Russian hacker was likely responsible for the attacks and that Nikulin knew several hackers, but that there is no direct link between him and the data breaches. He said he does not "see a lot of evidence this particular defendant did this."

"There are plenty of people who know how to hack," he said. "Russia, Lithuania, Estonia, it's like hack city over there."

The Northern District of California resumed trials with heightened COVID-19 protections, including measures to ensure social distancing, a plastic shield around the witness box and a modified ventilation system that pumps fresh air into the courtroom.

Alsup said the trial should be able to safely move forward, but the precautionary steps might not be enough. That was hammered home Tuesday when the judge said he was "reprimanded" for neglecting to make sure the witness box was cleaned in between witnesses on Monday.

Three witnesses took the stand on Monday in less than three hours. Alsup made the witnesses take off their masks while testifying. The judge reasoned the jury should be able to see their faces to determine whether they were lying.

One was Ganesh Krishnan, a key witness from LinkedIn who testified for an hour.

Following the trial's suspension in March, Krishnan raised concerns about contracting the virus because of a pre-existing health condition. He asked to testify remotely but said he would do so in person if he only had to come to court for one day and the proper safety precautions were in place.

Alsup responded that it would be unfair to force jurors to attend proceedings but allow a witness to testify remotely.

Due to the circumstances of holding a trial during the pandemic, both sides agreed to proceed with the trial with as few as six jurors, if necessary, to avoid a mistrial.

Defense attorney Adam Gasner said he came to the "gut-wrenching decision" after considering Nikulin's lengthy pretrial detention. Nikulin has been awaiting trial in prison for roughly 45 months. Alsup has emphasized his pretrial detention could be longer than his sentence, if convicted.

Defense attorney Valerie Nechay said there's "concern of rushing a decision" because jurors might want to wrap up the case as soon as possible. She opposed a request from a juror to be dismissed, wanting to keep as many in the pool as possible.

Alsup said it's not an ideal situation in which to be conducting jury trials, but they cannot simply stop because of the pandemic.

Defendants "have a right to due process," he said.