H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
Published on:

The High Cost of Too Much Cooperation – “Helpful Witnesses”

Federal authorities on Thursday dropped their prosecution of a southern California man charged with two felonies for modifying Xbox 360 consoles, following a severe berating by a judge and an admission they made procedural errors, Wired.com reported.

The criminal trial against 28-year-old Matthew Crippen was the first to test how anti-circumvention provisions of the Digital Millennium Copyright Act applied to game consoles. The 1998 law prohibits the hacking of technology intended to prevent access to copyrighted material. Matthew Crippen of Anaheim, California, was arrested in 2009 [1] on charges related to modifications he made to the optical disc drives of two Microsoft consoles
According to Wired.com, which was providing gavel-to-gavel coverage of the trial, opening statements were delayed on Wednesday after US District Judge Philip Gutierrez blasted prosecutors for a series of missteps. They included alleged unlawful behavior by government witness Tony Rosario, who secretly videotaped Crippen as he accepted $60 to modify an Xbox. The judge also lashed out at prosecutors’ proposed jury instructions that he said were harmful to the defense.

“I really don’t understand what we’re doing here,” Gutierrez was quoted as telling prosecutors.

The government responded by asking for a recess, but later pressed on with the case.

On Thursday, Rosario, an undercover agent for the Entertainment Software Association, testified that during his 2008 meeting with Crippen, the hacker inserted a pirated video game into the modified console, a key detail in the prosecution that had never been aired before. After defense attorneys objected, the prosecution admitted they first became aware of the new claim on Sunday but had failed to alert Crippen’s defense team.

Assistant US Attorney Allen Chiu then agreed to dismiss the charges in light of the omission and “based on fairness,” Wired.com reported.


H.Michael’s Take

The federal criminal justice system relies, at times, on “paid for” testimony of witnesses with little or no credibility. Despite the best efforts of – what I consider to be – ethical prosecutors — the culture of “cooperation” will lead to witnesses wanting to be so helpful they will slant their testimony or even intentionally “filll gaps” in the DA’s or US Attorney’s case that are obvious weaknesses. Even veteran federal agents and seasoned detectives find this somewhat tempting.

The price – of course – is damage to the entire system of justice and dismisal of the case based on “justice.” Here the US prosecutor had no choice and did the ethical thing.