The federal judge overseeing the criminal computer hacking case involving former Deadspin video editor Timothy Burke has issued a rare reprimand of his legal defense attorneys after they filed a motion to dismiss certain charges that contained numerous inaccuracies.
On Thursday, Judge Kathryn Mizelle directed the clerk of the U.S. District Court in the Middle District of Florida to strike the motion filed by attorneys Michael Maddux and Mark Rasch that sought to dismiss eight criminal counts against Burke, after finding that their motion contained “unprofessional misrepresentations of legal citations.”
In an accompanying order, Mizelle said the 26-page motion filed by Maddux and Rasch on May 13 was riddled with errors to the point that it was entirely unreliable.
“Burke cites the authorities…as saying things that they do not say — and for propositions of fact and law that they do not support,” Mizelle wrote.
The motion was the third such effort by Burke’s defense attorneys to have his criminal case tossed or significantly reduced.
Federal prosecutors accuse Burke of working with a Washington state resident to scour the Internet for usernames and passwords belonging to broadcasters, sports leagues and news media organizations, with Burke subsequently accused of misappropriating those credentials to access videos that were not readily available to the public. Those videos include unaired footage connected to Fox News programs, which Burke later provided to Media Matters for America and Vice News.
In court fillings and news interviews, Burke’s defense attorneys do not dispute the core conduct of what prosecutors allege, but argue that Burke was committing acts of journalism by obtaining, then distributing, newsworthy materials. They also claim the video feeds connected to Fox News were available to the public because they were not directly encrypted.
Prosecutors say Burke was able to watch and record certain Fox News video feeds because he used a password that didn’t belong to him. They dispute the notion that the feeds were publicly available, noting that Burke could only discover them if he first had a password, which he obtained and used without authorization from Fox or anyone else.
Months after federal investigators conducted a raid on his home, Burke was charged by a federal grand jury with more than a dozen counts related to computer hacking, cyber trespass and conspiracy. He entered a plea of not guilty and was released under minimal supervision and with few computer restrictions. His co-conspirator, Marco Gaudino, reached a plea deal with prosecutors last year and is awaiting sentencing.
Over the past two years, Burke has tried numerous times to reclaim custody of more than a dozen computers and related electronics that were seized from his home; since being charged, the effort has also included attempts to have the criminal case against him tossed out of court.
His legal victories, so far, have been extremely limited. Last year, a court required federal investigators to return non-contraband items — devices and files not related to his criminal case. But district and appellate court magistrates and judges have rejected every request to have his case dismissed.
On May 13, Burke’s attorneys tried for a third time to have certain charges tossed out of court. In their motion, Maddux and Rasch argued that the Eleventh Circuit Court of Appeals held that when a law co-mingles criminal and innocuous actions, that the statute must “clearly delineate the line between permissible and prohibited conduct and cannot constitutionally require the defendant to prove facts that exculpate him” in order for the law to be constitutional.
But Mizelle wrote in her order on Thursday that the Eleventh Circuit case in question, U.S. vs. Ruiz, “contains no such quote and does not support the stated proposition.” She also took issue with more than a dozen other citations and quotes that were either attributed to the wrong court or case, or appeared to be wholly made up.
Rather than dismissing the motion, Mizelle gave Burke’s defense attorneys a second chance by directing the clerk to strike it from the record — a move that allows the motion to remain in the court docket, but otherwise can’t be relied upon or referenced in Burke’s case or any other legal proceeding against him.
Mizelle said Burke can re-file his motion with the errors corrected or omitted, but if his attorneys take that opportunity, they also must file a short brief that explains “how these unprofessional misrepresentations of legal citations occurred and what counsel will do to avoid filing any similarly unacceptable motions again.”
An e-mail seeking comment from Maddux and Rasch was not returned by Friday afternoon. The inquiry was also sent to Burke, who did not respond.
The order issued this week marks a rare occurrence of a federal judge issuing a strongly-worded reprimand that calls into question the professional integrity of attorneys involved in a matter before the court.
It was also a stunning rebuke against two white collar criminal defense attorneys — Maddux and Rasch — who promote themselves with impressive legal pedigrees.
Both have positioned themselves has highly capable of defending Burke, — each worked as prosecutors early in their careers and were tasked with charging individuals accused of similar criminal conduct as their current high-profile client.
But legal experts who spoke with The Desk for this story said the recent motion filed by Burke’s attorneys were not representative of good criminal defense practice.
One lawyer said it appeared Burke’s attorneys used generative artificial intelligence tools to conduct legal research, but didn’t scrutinize the cases or the legal citations before inserting them into their motion.
Another defense attorney said the filing “looked like something ChatGPT wrote,” referring to the conversational robot that answers questions and performs other tasks.
It isn’t clear if Burke’s attorneys used generative AI to form some or all of the problematic motion. But a recent survey found nearly four out of five lawyers have used AI tools in some capacity in their law firm, and legal experts say their prominence in the industry is growing.
Companies that market AI solutions to the legal profession typically caution that their products are intended to serve as a starting point and are not meant to substitute legal research.
Mark Reichel, a criminal defense attorney in Sacramento and a legal contributor to the cable news channel NewsNation, said courts have seen an increase in briefs submitted by lawyers that contain minor errors attributed to generative AI tools.
Reichel — who, full disclosure, has represented the author of this story and the parent company of The Desk in prior legal matters — took no position on whether the brief filed by Maddux and Rasch was written using AI or whether the attorneys engaged in other egregious acts of accidental or deliberate behavior. But he affirmed that it is rare for judges to issue written public criticism that challenge the professional qualifications of attorneys involved in their cases.
“The lawyers should refuse to answer the judge’s request and need to hire lawyers for themselves,” Reichel said. “They are in big trouble.”
In prior social media posts, Burke has praised his legal defense team, and encouraged his tens of thousands of online followers to donate to his legal defense fund. He has not addressed the matter concerning his latest motion publicly.
The outcome of his latest motion may actually benefit Burke in an unusual way: It is not uncommon for criminal defendants to lose at trial, then attempt to have their criminal convictions overturned by claiming that their lawyers failed to represent them to the best possible extent.
Such claims of ineffective assistance of counsel are rarely upheld by courts, because the defendant usually bears the burden of proving that their attorney or legal team acted negligently, recklessly or otherwise unprofessionally.
With the judge’s order on his latest motion, Reichel says Burke comes “closer” to meeting the burden of proof for an ineffective assistance of counsel claim, should he take his case to trial and lose.
Burke’s criminal trial is currently scheduled for September.
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Editor’s note: This story was updated early Friday evening to correct the spelling of an attorney on Burke’s legal defense team.
