Xbox-Modding Trial Abruptly Dismissed After Presiding Judge Eviscerates Prosecution

In a stunning, and hilarious development, barely a day after Federal Prescutors were treated to a vicious verbal curb-stomping at the hands of presiding Judge Philip Gutierrez, the charges against Matthew Crippen over the legality of his alleged Xbox modding business have been abruptly dismissed.

The chain of events leading to this unexpected outcome began yesterday, when Judge Gutierrez, visibly exasperated by what appears to be the Prosecution’s total lack of credibility, blasted them for numerous problems in their case, including the possbility that they were relying on evidence gathered illegally, and that at least one of their witnesses was himself guilty of the “crime” for which Matthew Crippen faced 10 years in prison:

“Among the judge’s host of complaints against the government was his alarm that prosecutors would put on two witnesses who may have broken the law.

One is Entertainment Software Association investigator Tony Rosario, who secretly video-recorded defendant Matthew Crippen allegedly performing the Xbox mod in Crippen’s Los Angeles suburban house. The defense argues that making the recording violates California privacy law. The other witness is Microsoft security employee Ken McGrail, who analyzed the two consoles Crippen allegedly altered. McGrail admitted that he himself had modded Xboxes in college.”

“Maybe two of the four government witnesses committed crimes,” the judge said from the bench. “I think it is relevant and the jury is going to hear about it –- both crimes.”

The government had fought to keep the witness conduct a secret from the jury.

It’s troubling enough that Microsoft’s main witness is someone who himself has violated their bizarre conception of what constitues private property, (even if it’s not clear that being a blatant hypocrite is a violation of judicial ethics). But, as those of you who live in California might not know, by state law, unless you are a valid law enforcement officer operating under a warrant, you can only video or audio tape someone with their consent. Unless the Entertainment Software Association has been nationalized, the video Mr. Rosario recorded would have been inadmissable. It’s astonishing that Federal Prosecutors tried slipping it in anyway, and then sought to conceal their complicity in this crime.

But it gets worse better. At the heart of Prosecutor Allen Chiu’s proposed jury instructions was a flagrant attempt to violate both the letter and spirit of the law:

“[the instructions] included the assertion that the government need not prove that Crippen “willfully” breached the law, in what is known as “mens rea” in legal parlance. The judge noted that the government’s own intellectual property crimes manual concerning the 1998 DMCA says the defendant has to have some knowledge that he was breaking the law.”

Fair enough. Except, the Prosecution’s attempt to meet this requirement practically begged a FAIL tag:

“… during his testimony, Rosario also said Crippen inserted a pirated video game into the console to verify that the hack worked. That was a new detail that helped the government meet an obligation imposed by the judge that very morning, when Gutierrez ruled that the government had to prove Crippen knew he was breaking the law by modding Xboxes.

But nowhere in Rosario’s reports or sworn declarations was it mentioned that Crippen put a pirated game into the console. During the opening statements shortly before Rosario’s testimony, defense attorney Koren Bell told jurors that there would be no evidence of that kind.”

Put simply: The prosecution, faced with a restriction that strengthened the defense’s case, lied, and clumsily, in order to undermine it. And Judge Gutierrez called them out for it. In fact, he so thoroughly humiliated the prosecution that Chiu was reduced to a meek apology for his team’s misconduct. The case was then placed on hold until prosecutors could get their legal act together. And that’s where things stood yesterday. Today, “based on fairness and justice”, the prosecution has dropped all charges.

While this is excellent news for the defendent, and a moral victory for those of us who support the idea that when you buy something, you actually, you know, own it, the question of the legality of console modding remains disturbingly open. During the trial, Judge Gutierrez made the point that the recent exceptions granted to phone owners w/r/t jailbreaking their phones wasn’t extended to game consoles, and that remains true regardless of how Mr. Crippen spends the next ten years. And though it remains to be seen how Microsoft will proceed the next time they catch someone making aftermarket modifications to their precious machines, they will almost certainly pursue the case in a jurisidiction less friendly to the rights of the accused than can be found in California.

Here’s hoping, then, that the Library of Congress comes through before that has to happen.

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