A Juror Explains Why a C.I.A. Hacker Was Convicted

On July 13th, a jury of twelve New Yorkers returned a verdict in the trial of Joshua Schulte, the C.I.A. hacker accused of engineering the largest theft of classified information in the agency’s history. They found him guilty on all nine counts. Damian Williams, the U.S. Attorney for the Southern District of New York, who

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On July 13th, a jury of twelve New Yorkers returned a verdict in the trial of Joshua Schulte, the C.I.A. hacker accused of engineering the largest theft of classified information in the agency’s history. They found him guilty on all nine counts. Damian Williams, the U.S. Attorney for the Southern District of New York, who oversaw the case, described Schulte’s crime as “one of the most brazen and damaging acts of espionage” ever committed in America. This was Schulte’s second trial on these charges; in March, 2src2src, a jury had come to a deadlock on the most significant allegations against him, and a judge declared a mistrial. (I wrote about Schulte, and the revelations of that earlier case, in the magazine in June.) But members of the new jury, which was empanelled earlier this summer, were not aware that he had been tried before. Juror No. 4, Juan Flores, told me over coffee last week, “We knew nothing.” The jurors scrupulously obeyed instructions not to consult any media accounts of the case, Flores explained. “I’ve been in the city forty-seven years, and I’ve been called to jury duty twice,” he said. He feels good about the verdict: “The system worked.”

Flores has intense eyes and a gentle smile. He is a retired assistant principal who spent his career working in the public-school system in the Bronx. Testimony about Schulte’s workplace antics at the C.I.A. gave Flores occasional flashbacks to his years as an educator. “I used to conduct conflict resolution with third graders,” he recalled. “ ‘We’re going to move your desks.’ ‘O.K., you couldn’t let it go, so we’re going to move you to a different classroom.’ Schulte couldn’t drop it. He couldn’t leave it alone.” Flores said that Schulte seemed not to have ever learned “all those things you learn when you’re a kid.”

The government’s argument was that Schulte (whose penchant for disproportionate retaliation had earned him the office nickname the Nuclear Option) stole a huge trove of sensitive hacking tools and disclosed them to WikiLeaks, not because he was critical of U.S. policy but as an act of revenge against his colleagues and his superiors, who had criticized him for being incessantly obstreperous. The jury found the prosecution’s claims about Schulte’s motive convincing, Flores said.

When I was writing my article on Schulte, I reviewed the full record from the first trial, and was quite surprised that the jury had failed to convict him, because the evidence against him had seemed overwhelming and unambiguous. The hung jury in that initial case was a credit to his very capable legal team, in particular the federal public defender Sabrina Shroff. Before the retrial, however, Schulte made the bold decision to dismiss his legal counsel and represent himself. At a glance, this seemed like lunacy: it is difficult even for a team of seasoned lawyers to try a complex federal criminal case, and in this instance the secrecy surrounding the proceedings, along with the technical complexity of the evidence, presented additional challenges. Yet Schulte seemed convinced that he could do a better job than his defense attorneys. He may have felt, as a professional coder, that he was more fluent than any lawyer could be in the idiom of digital forensics, which would dominate much of the testimony. It may also have been the case that, as a hacker confined in a federal holding pen, he was attracted to one of the perquisites of serving as your own attorney: access to a computer.

Another reason for Schulte to represent himself was that the jury would get to know him. Criminal defendants sometimes decide not to testify in their own defense in order to avoid cross-examination, which leaves them playing a peculiar role in the drama of their own trial: while everybody testifies about them, they sit mute alongside their attorneys, like a spectator. In such situations, it may be easier for juries to cast judgment on them. Schulte, by serving as his own counsel, might have aimed to humanize himself in front of the jurors, letting them hear his voice, come to know his mannerisms, and feel that they had developed a relationship with him. In theory, this strategy might make it more difficult for the jury to deliver a verdict that could lead to a decades-long sentence.

It didn’t work out that way. I sat in on the trial one day, and I found Schulte to be an erratic, discomfiting presence. He is tall and lanky, with a dark, full beard, and he would lean on the lectern and badger witnesses, stubbornly asking the same question again and again until the judge in the case, Jesse M. Furman, asked him to move on. Shroff was present at his table, alongside another attorney, Deborah Colson, ostensibly to serve as “standby” counsel. But in practice, whenever Schulte was cross-examining witnesses, Shroff would feed him questions written on Post-it notes, which he would then pose to himself. The impression created was that of an unprepared actor being fed his lines.

“I think Schulte really thought he was smarter than everybody,” Flores said, adding, “There was a level of arrogance.” If Schulte’s strategy had been to humanize himself, Flores continued, then it backfired with the jury. Sure, they got to know him—but they didn’t like him. A major thrust of Schulte’s defense was that the government and its witnesses did not really understand the complex technologies at issue. And it certainly came through in the testimony that the C.I.A.’s appallingly lax digital security had helped make the leak possible in the first place. But, as Flores described it, Schulte’s caustic belittling of one witness after another came to sound like the eye-rolling derision of a smug I.T. guy lording his technical prowess over everyone he encounters. “He thinks everyone’s stupid, in the whole country,” Flores said. “He didn’t do himself a service by defending himself.”

Schulte’s affect might have done him no favors, but it was the evidence that really did him in. The crime was technically complex, but, according to Flores, the jury gamely rose to the occasion. “There was a lot of computer language and coding language that people weren’t familiar with,” he said. “It was like going to coding school and law school for four weeks in the summer.” Some of the jurors took meticulous notes, which they shared with the others once deliberations began. They broke down each of the nine charges, laying out the evidence required for conviction on large pieces of paper, which they posted on the walls of the jury room. In early votes, there was near unanimity that Schulte was guilty, but one juror held out. According to Flores, this person had sons around Schulte’s age, and hesitated to make a decision that might send a young man away to prison for the rest of his life. “We had to tell her: you have to put your empathy aside and weigh the evidence,” Flores said. As it happens, Flores, like Schulte, is a graduate of the University of Texas at Austin, but he said that he did not let this link sway him. When Schulte was in court, Flores listened to everything that he said, but he tried not to look at him directly, lest doing so compromise his ability to be dispassionate. For the same reason, he averted his eyes from Schulte’s family, who were in the courtroom every day. “As human beings, we have to have empathy,” he said. “But if you did the crime, you did the crime.” Eventually, the holdout juror was convinced that the evidence left no doubt about Schulte’s guilt. When the verdict was announced, Flores did not look at the accused. But his fellow-jurors informed him that Schulte betrayed no visible reaction.

Schulte could be given a sentence of up to eighty years. He will also face separate federal charges related to the possession of child pornography. After the jurors issued their verdict, they were finally free to read press reports about Schulte, and they learned about the earlier trial and the child-pornography charges. Flores recalled, “Then we said, ‘Oh, wow. Yes, I think we made the right decision.’ ”

At one point in the trial, Judge Furman complimented Schulte, saying, “You may have a future as a defense lawyer. Who knows?” But, after the verdict, Furman stopped by the jury room to thank the jurors for their service; according to Flores, Furman told them that everyone has the right to serve as their own defense counsel—“but I wouldn’t advise it.”

Once Schulte starts serving his sentence, Flores noted, he will likely be deprived of computer access. “We can’t trust this guy being anywhere near technology,” he reflected. And, for Josh Schulte more than most inmates, “I think that’s going to be his greatest punishment.” ♦

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