Martin Gottesfeld, the “guardian hacktivist” who allegedly initiated a Distributed Denial of Service (DDoS) campaign on Boston Children’s Hospital in protest of the hospital’s alleged medical kidnapping of Justina Pelletier, has filed his first appeal.
For approximately the last two years, Gottesfeld has been serving his prison sentence in FCI Terre Haute’s Communications Management Unit (CMU) in Terre Haute, Indiana.
There are only two know CMU facilities in the United States. According to the Center for Constitutional Rights (CCR), these special prison units reportedly house “dangerous terrorists and other high-risk inmates,” the vast majority of whom are Muslim.
Last week, I had the opportunity to speak with Gottesfeld’s attorney, Brandon Sample. During our brief interview, Sample discussed the primary points of Gottesfeld’s appeal, which was filed in July — including the Speedy Trial Act, alleged judicial conflicts of interest, and more.
Prior to reading to the following interview, it would be beneficial to read the pieces listed below:
The full text of the interview is below:
DW: Mr. Sample, you are Martin Gottesfeld’s attorney, and you just recently issued his appeal. Can you first give us a little bit of background about yourself and how you came to be where you are?
SAMPLE: I am a federal criminal defense attorney. I handle federal criminal cases around the United States. My office is located in a tiny town in Vermont, and prior to becoming an attorney, I was on the other side of the law. As a young man, I got into trouble and actually spent time in a federal prison, but committed myself while I was there to college and other productive activities.
And after my release, I [studied] for the LSAT to get into law school, was accepted to law school, finished law school, graduated magna cum laude, and passed the bar, and became an attorney. So I’ve been doing that for a number of years now.
DW: So how did you come to be associated with Martin Gottesfeld?
SAMPLE: I was referred. They were referred to me, actually, I think through another one of my clients that I represented, and I agreed to take his case on.
DW: You recently filed the appeal. When did you file that appeal?
SAMPLE: I filed that at the end of July.
DW: Can you walk me through the basic tentpoles of what the appeal is alleging, and what you’re trying to do with it, starting with the first major point of the appeal?
SAMPLE: Sure. There are several issues that are within the appeal, but a lot of them will seem technical in nature. There is a provision within the law called the Speedy Trial Act that requires the government to indict someone or bring them to trial within a specific period of time.
We are asserting that the Speedy Trial Act was not complied with in his case. That they took too long to indict him; that they utilized a process to purportedly permissibly extend the time period for [them] to file that indictment that was this secret process that the federal courts in Massachusetts have used for some time; and that that is not consistent with the Speedy Trial Act itself.
DW: Going further, what’s the next major issue that you’ve written about in the appeal?
SAMPLE: The next big issue deals with whether or not the magistrate judge who issued the search warrant in the case was neutral and detached, because her husband, who is a physician, was connected with some of the hospitals there in Boston. And since this whole case has to do with the attack on the computer infrastructure that was used not just by one hospital, but really there’s a lot of hospitals that participate. Harvard has a network that they make available to the other hospitals in Boston.
And so, the assertion there is that the judge should not have been involved in issuing that warrant in the first place—and any of the evidence that was obtained as a result of that warrant has therefore been improperly obtained.
DW: That’s Magistrate Judge Marianne Bowler, correct?
DW: And so the next piece, I think, if I read the appeal correctly, was about Judge [Nathaniel] Gorton.
SAMPLE: Yeah. There’s several things that intertwine with Judge Gorton, some of which deal with his closure of the courtroom repeatedly. Marty would oftentimes, when there would be disputes or disagreements between him and his counsel, and the lawyers would want to talk about those things privately without the presence of the government or anybody else—and when Judge Gorton presided over those proceedings, he would accede to the request by the attorney and close the courtroom.
Marty’s asserting that that violated his right to a public trial. He’s also asserting that he had made a motion to recuse Judge Gorton on the basis that he wasn’t an impartial decision-maker—and that the judge, rather than actually substantively consider whether or not he should be recused, he had already made his mind up before those filings were ever really tendered.
In fact, there was a hearing, or a transcript of proceeding, where there was some suggestion that this is going to be denied when it’s ultimately filed, and then it ultimately was denied.
DW: And further, there’s the issue, if I recall correctly, of the inability to use the “defense of another” as Gottesfeld’s primary defense?
SAMPLE: So that issue also was raised, and, yes, the court had precluded him from raising that defense. And so, we are also arguing that that was improper; that the jury should have been allowed to make a determination of whether or not the defense of others excused Marty of any criminal liability.
DW: Are there any other major arguments that are at the thrust of this appeal—other than what we’ve talked about?
SAMPLE: The only other one deals with the judge’s refusal to allow one of his attorneys to withdraw from the case. And the lawyer had told the court in no uncertain terms that he didn’t believe that he could represent [Gottesfeld] effectively, that he wasn’t getting along with Marty, and that he wanted off the case—and the judge kept him on the case anyway.
In fact, that lawyer had told the court that he hadn’t talked to Marty, that he did not want to talk to him, that he could not represent Marty zealously, and that he did not have Marty’s full and undivided loyalty. So, I’m not sure what defendant would really want to have a lawyer like that, but the judge would not let him off the case.
DW: What do you think of this appeal? What do you think the timeline is going to be, and what do you think the strength of the appeal will be?
SAMPLE: I think the strengths in this appeal are really the Speedy Trial Act arguments. I think all these arguments are of course good, but I think that this Speedy Trial Act issue—while it would seem like most people would think of it as a technicality or something like that—is a very interesting issue, and it has a reasonable chance of success.
The timing of all of this, though, is going to show to be pretty lengthy, I believe. We filed our brief, the government is going to have an opportunity for them to respond. I think it’s going to take several months for them to get their responsive brief in. And then we will have the opportunity to file a reply.
Given the issues that have been raised in the appeal, I suspect that the First Circuit Court of Appeals will have oral argument. So very likely there wouldn’t be a decision in this case until some time next year.
DW: Do you speak with Marty regularly about the case? How is your communication with him given that he’s in the CMU (Communications Management Unit) at Terre Haute?
SAMPLE: We do communicate via email, and we have phone calls. And as of late, the Bureau of Prisons has allowed us to do WebEx meetings. But even then, the communication that I’ve had with him has been, I think, without question, the most challenging that I’ve ever had with any other client. And I say challenging not in the sense that his communication personally from Marty is difficult, but that when I would send, and when I do send him letters, for whatever reason, those letters sometimes don’t reach him for two and three weeks.
And I have other clients that are also in Indiana where he’s at in the CMU. They’re not in the same prison, maybe they’re at a county jail or something like that. They don’t seem to have any problem getting my mail. When he sends me things, they get lost, or they take forever to get to me—and it’s like some kind of black hole.
DW: This whole situation seems peculiar, to say the least. Not only the whole trial and the lack of recusal for the judges and the different alleged violations that took place, but the fact that they put him in such a high-security setting for the crime that he allegedly committed. Can you talk about the bizarreness of that?
SAMPLE: Yeah. Where he’s confined is where they put people who are typically terrorists. These are people that they want to watch every little move that they make, monitor all their communications.
He’s explained to me that in the CMU, when you’re there, they have rows of microphones that are out in the common area to capture everything that’s being said. And I don’t understand why someone who was convicted of breaking into some computers—doing this denial of service attack because he’s trying to help a sick little girl—why you would put them in this type of really, really restrictive housing.
It’s essentially one step below the administrative maximum, the ADX that’s in Florence. There’s not very much difference except that he’s not confined to his cell 24 hours a day. So, it does seem to be overkill, to say the least.
DW: What do you expect if this appeal is successful; what happens after that?
SAMPLE: If the court agrees with our arguments, for example, on the Speedy Trial Act, then that would result in dismissal of the indictment against him. And so, he would have no conviction at that point.
There’s a variety of different outcomes that could potentially flow from the arguments that have been raised in the appeal. If he wins, say for example, the argument that his lawyer should have been allowed off the case, well, then that would undo the conviction as well, and he would be entitled to another trial.
If the indictment is dismissed, then the government is going to have to make a decision about whether or not this is really a case that they want to prosecute all over again.
DW: Yeah, is it worth retrying?
SAMPLE: Yeah. Is it worth retrying, or do they feel that they’ve got their pound of flesh through everything that they’ve put Marty through over the past several years?
DW: Do you see this being successful, a strong case?
SAMPLE: The appeal? I think we have a really good chance. I do.
I’d like to thank Brandon Sample for taking the time to speak with me for this interview. For more information on Martin Gottesfeld’s case, you can visit the FreeMartyG website, or follow the FreeMartyG Twitter.
The appeal can be read in its entirety here.