On February 28, the prosecution in the Martin Gottesfeld case submitted a “motion in limine,” asking Federal Judge Nathaniel M. Gorton to disallow one of Gottesfeld’s primary defenses — that he was reacting in defense of Justina Pelletier, whom he believed was being “tortured.”
Gottesfeld is the hacktivist who allegedly brought down the Boston Children’s Hospital website in April of 2014 with a coordinated DDoS campaign. You can read about his story in-depth here (highly recommended before reading any further).
The motion in limine states in part:
Since his arrest in February 2016, Gottesfeld has publicly taken responsibility for his cyber attack targeting Boston Children's Hospital ("BCH"). See, e.g., "Why I Knocked Boston Children's Hospital Off the Internet - A Statement by Martin Gottesfeld," Huffington Post, Sept. 18, 2016 (Exhibit A hereto). Gottesfeld's explanation – repeated over social media, on websites, in online news articles, and in a telephone interview he gave from jail – is that he attacked BCH's computer network "to save [Patient A] from grievous bodily harm and possible death" and to "dissuade" BCH from a supposedly "well-established pattern" of moving to have the state obtain legal custody of patients in its care.
Although these claims suggest the affirmative defenses of necessity and defense of another, Gottesfeld cannot proffer any competent evidence that meets the legal standards required to present them to a jury. He cannot show (1) that he acted in Patient A's presence to prevent imminent harm to Patient A; (2) that Patient A was subjected to the use of unlawful force; (3) that he reasonably anticipated his cyber attacks would address the supposed harm to her; and (4) that he had no legal alternative but to attack BCH in violation of the law.
Instead, Gottesfeld's own statements demonstrate that he determined for himself – without any firsthand knowledge – that he could better evaluate Patient A's medical condition than the clinicians at BCH; that he knew better than the Massachusetts Department of Children and Families ("MDCF") what was in Patient A's best interests; and that he – not the Massachusetts courts – should make the final determination regarding the custody and care of Patient A. Gottesfeld not only claimed that BCH was torturing Patient A, he acted on this uninformed belief, threatening BCH and then directing an attack that put the care of the hospital's most vulnerable patients at risk.
Because Gottesfeld cannot satisfy the minimal burden necessary to put his so-called "torture defense" before the jury, the Court should preclude him in limine from presenting it, and from presenting evidence that is otherwise irrelevant to the elements of the offenses charged in the Indictment.
Gottesfeld argues, however, that Pelletier was indeed being “tortured,” citing a statement by Justina Pelletier herself, a letter written by whistleblower-nurse Kathleen Higgins, and a letter written by former federal prosecutor and member of the board for the Massachusetts Society for the Prevention of Cruelty to Children, Barry Pollack, who was representing a client who had also allegedly been mistreated in Bader 5 (the psychiatric facility at BCH).
Justina Pelletier described her time in state custody as “torture” during an interview after her release in June 2014. She recounted disturbing behavior on the part of some staff members, and added that she didn’t want what happened to her to “happen to anyone else.”
While Higgins was not working in Bader 5 at the time of Justina’s detainment there, according to Gottesfeld, she claimed in her January 8, 2014 letter that she was “engaged” with the Pelletier family and acting as an advocate.
After detailing Justina Pelletier’s story, Higgins stated in part:
Since April 23, 2013, I have been engaged with Linda, Lou, and Jennifer Pelletier, the parents and eldest sister of Justina Pelletier, to facilitate Justina’s discharge from Bader 5, inpatient psychiatric unit of Boston Children’s Hospital, where she has been unjustly and illegally imprisoned for the past nine months ...
I am submitting this information, which has been made public, in the form of a complaint against Judge Joseph Johnston, Dr. Colleen Ryan and the Massachusetts Department of Children and Families for the emotional and medical abuse Justina Pelletier has suffered for nearly a year. It would be far more accurate to call the “treatment” forced on Justina by its more proper term, “torture.”
The December 21, 2013 letter from Pollack demanded an investigation into Bader 5, stating in part:
Based on publicized reports by several families, there's been a pattern of abuse of children by one or more health care providers at the Bader 5 inpatient unit of Children's Hospital. ...
As reported in the growing number of cases in which allegations are becoming public, Bader 5 healthcare providers, including Gary Gosselin and Colleen Ryan, along with an in-house counsel named Ellen Rothstein, appear to favor hasty accusations of medical child abuse or the like against parents who challenge them. Based on allegations by multiple families, Gosselin and/or Ryan have even taken harsh stances to avoid second opinions that parents wish to seek from other facilities. ...
Furthermore, Children's Hospitals concerted efforts with the DCF has resulted in Bader 5 operating under color of state law, within the meaning of federal civil rights laws, 42 U.S.C. 1983.
As The Daily Wire previously reported, “During a March 2014 interview with WGBH, Lou Pelletier, Justina’s father, spoke about how his daughter was apparently taken off her mitochondrial disease medications for more than a year while in state custody.” According to Pelletier, this caused his daughter to be in a state of “severe” and constant pain.
Gottesfeld disputes the prosecution’s dismissal of BCH’s “pattern of moving to have the state obtain legal custody of patients in its care,” pointing to a Boston Globe piece in which just such a pattern is described, and even given a name: “parent-ectomy.”
These cases are rare, but not as rare as one might think. In just the last 18 months, Children’s — which given its reputation attracts many of the toughest cases from across the Northeast — has been involved in at least five cases where a disputed medical diagnosis led to parents either losing custody or being threatened with that extreme measure. Similar custody fights have occurred on occasion at other pediatric hospitals around the country.
It happens often enough that the pediatrician who until recently ran the child protection teams at both Children’s and Massachusetts General Hospital said she and others in her field have a name for this aggressive legal-medical maneuver. They call it a “parent-ectomy.”
Gottesfeld disputes the prosecution’s claim that he failed to reach out to the proper authorities prior to allegedly waging the DDoS campaign on the Boston Children’s Hospital website. According to Gottesfeld, when his brother-in-law was in a similar situation at Logan River (a youth facility), he attempted to contact the authorities to no avail. Having seen the way in which that played out, Gottesfeld claims that any attempt to contact authorities in the Pelletier case would likely have proven fruitless.
Additionally, according to the Boston Globe, “[The Pelletiers] took their complaints to every authority they could think of: the district attorney, the attorney general, the governor’s office, even the FBI.”
Gottesfeld also claims he did try to reach out to BCH with this March 18, 2014 Facebook review:
Gottesfeld disputes the prosecution’s claim that “he determined for himself – without any firsthand knowledge – that he could better evaluate Patient A's medical condition than the clinicians at BCH.” According to Gottesfeld, he didn’t determine anything for himself, rather, he was following the determination of specialist Dr. Mark Korson from Tufts Medical Center, who was treating Justina Pelletier for mitochondrial disease.
In an email to the Pelletier’s attorney, Korson made clear his concern for his former patient while she was in the hands of a Boston Children’s Hospital team: “I am dismayed...it feels like Justina's treatment team is out to prove the diagnosis [of somatoform disorder] at all costs.” He asked, “Where is the objective scrutiny? Who is asking the team on a weekly basis, for example, for specific updates on Justina's different medical and psychological issues to gauge process?”
Gottesfeld disputes the prosecution’s contention that he “cannot show ... that he reasonably anticipated his cyber attacks would address the supposed harm to her.”
The April 2014 DDoS campaign appears to have been successful if one looks to what occurred afterward. “In May 2014,” reports The Daily Wire, “Justina was moved to JRI Susan Wayne Center for Excellence, a care facility in Thompson, Connecticut. While she was still under state custody, visitation restrictions were apparently more lax at Justina’s new living space.”
Gottesfeld contends that the more lax regulations led to what happened next. “On June 8, a secret video recorded by Justina’s sister Jennifer surfaced online. In the video, Justina appears in her deteriorating state and pleads with Judge Johnston to order her release. Several days after the video appeared on social media, Justina was released from her detainment, and returned home — bound to a wheelchair.” Watch the video here.
Gottesfeld disputes the prosecution’s claim that “he acted on this uninformed belief, threatening BCH and then directing an attack that put the care of the hospital's most vulnerable patients at risk.”
As The Daily Wire previously reported, “On April 27, 2016, Special Agent Jeffrey Williams of the Boston FBI was cross-examined by then-attorney for the defense, Tor Ekeland. In two particularly interesting exchanges, Williams notes that there is no evidence that Boston Children’s Hospital lost all ability to communicate with patients as a result of the alleged DDoS, and that to his knowledge, there had been no investigation into BCH or Wayside Youth regarding possible abuse of Justina Pelletier.”
EKELAND: And you don't have any evidence that any medical records were ever accessed, correct?
WILLIAMS: No, only that, only what was described to us by the, by the hospital, that they had to shut down some of their systems. It caused issues with doctors communicating with each other as well as patients communicating with those systems.
EKELAND: Well, the phone systems were never shut down at BCH, correct?
WILLIAMS: I don't believe so.
EKELAND: So the doctors could call their patients, correct?
WILLIAMS: That's correct.
EKELAND: And the patients could call their doctors, correct?
WILLIAMS: That's correct, but I'm also not certain of the number of patients that they have on, on a daily basis that would need to be contacted, so in terms of the effort or, or whatnot, you know, I'm not sure. It involves feasible, feasible option[s], I'm not certain that, you know, that would be the best –
EKELAND: I'm sorry. Is it your testimony that you have no idea the number of patients [that] Boston Children's Hospital handles?
WILLIAMS: Well, in terms of communicating on a daily basis with all their patients, well, it could be an option, it could be an option for them to do that, yes.
EKELAND: I'm sorry, I didn't, I just didn't hear you.
WILLIAMS: I'm not aware of the number of patients that they communicate with on a daily basis, so while I do agree that it is a good option for them, or one option is for them to call their patients on the phone to communicate with each other, you know, in terms of types of communication and what needs to happen, I'm not certain of, if in practicality that would, that would work.
EKELAND: But you'd agree with me that the DDoS attack, the alleged DDoS attack, did not target the phone system, correct?
WILLIAMS: That's correct.
EKELAND: And it did not target the personal emails of the doctors at BCH?
EKELAND: And you're not aware of any medical records that were accessed for that matter, correct?
EKELAND: And the, I believe the affidavit says that some research was allegedly interrupted, but you can't specifically tell me what research was interrupted, can you?
WILLIAMS: No, we'd have to ask the hospital for that.
EKELAND: It's fair to say it's a very politically controversial case, correct?
EKELAND: Which brings me to June 2014. Are you aware that in June 2014, mainly because of all the controversy surrounding this case and the governor of Massachusetts getting involved, the judge, the state judge, who had...granted custody to Justina, to Boston Children's Hospital, returned custody of Justina to her parents. Are you aware of that?
EKELAND: And to the best of your knowledge, you testified that the FBI never investigated Wayside Youth for any alleged abuse of Justina Pelletier, correct?
WILLIAMS: That's right.
EKELAND: And as far as you're aware, the FBI never investigated Boston Children's Hospital for any alleged abuse of Justina Pelletier, correct?
Lastly, Gottesfeld contends that the judge presiding over the case, Nathaniel M. Gorton – much like Magistrate Bowler before him – has conflicts of interest, and should recuse himself. In a letter to Chief Judge Saris, Gottesfeld wrote in part:
I also need to bring to your attention that Judge Gorton, who has currently been assigned to my case since last summer, is on the board of the Home for Little Wanderers, a 501(c)3 which accepted $50,000 from Boston Children's Hospital in September 2015...
Just before this letter was mailed, Judge Gorton, who presided over the tragic CFAA activism case of Aaron Swartz, granted my attorney only one third of the funding and half of the time which he requested in order to secure defense experts and to prepare motions. Further, after my wife began docketing information about Magistrate Bowler's potential conflicts of interests, including her role at the Boston Foundation, Judge Gorton did not recuse himself and rather he ordered my wife to stop docketing such information.
While the prosecution doesn’t believe that Gottesfeld’s claims reach the minimum standard that would call the court to listen to a “torture” defense, Martin Gottesfeld continues to actively dispute their claims. Judge Gorton has not recused himself from the case.