A former Deadspin video editor who was criminally charged with stealing Fox News video clips from a hacked computer system has asked a Florida judge to permanently dismiss the case against him.
In a court filing this week, attorneys representing media and political consultant Timothy Burke said the government spent too much time appealing an earlier court decision that ultimately went nowhere, which deprived the accused hacker of his constitutional rights under the Speedy Trial Act.
Burke was charged by a federal grand jury two years ago with conspiring to break into online computer systems used by media outlets and professional sports organizations. Prosecutors said he worked with a Washington man, Marco Gaudino, to look for passwords on the Internet and trespass into computer systems without permission.
One system called LiveU Matrix ultimately gave Burke access to raw video transmissions of Fox News programs. Prosecutors say Burke crossed a legal line by misappropriating a password found online to access LiveU Matrix; his attorneys say the Fox News video clips were unencrypted, meaning anyone could access them if they simply knew where to look.
Burke cultivated a number of supporters during his legal case, including the Freedom of Press Foundation, which filed amicus briefs in support of Burke’s attempts to dismiss certain charges. In an e-mail conversation with The Desk earlier this month, FPF’s Chief of Advocacy Seth Stern continued to defend Burke, saying his use of a password that was accidentally published to the website of a CBS News Radio affiliate shouldn’t be a crime.
“Once (the password was) posted publicly, it’s not Burke’s burden to discern whether that was a mistake,” Stern said. “It may have been a mistake, and he may have even suspected it was, but it’s a slippery slope to require journalists to stand down when they suspect that they’ve found something someone wouldn’t want found. It’s not surprising that the people who screwed up would try to shift blame, but that doesn’t make Burke a criminal.”
At the time of his activities, Burke did not work for CBS News, and no one from the network gave him permission to use the account. The radio station also did not have knowledge that Burke had used their password, according to a manager who spoke with The Desk.
But prosecutors went too far, charging Burke with wiretapping that didn’t pass muster when challenged. Last year, a federal judge overseeing his case tossed seven of the 14 criminal counts against him, preserving only the conspiracy and computer trespass charges.
The Justice Department sought to restore the dropped charges on appeal, but couldn’t secure written approval from the Office of General Counsel to move forward with that part of the case, according to court records reviewed by The Desk. Earlier this month, prosecutors withdrew their appeal on the dismissed charges, more than a year after the appeal was filed.
Burke’s defense attorneys now claim that the year-long delay deprived the former journalist of his right to a timely trial. They say prosecutors wrongfully sought extensions to file an opening brief in appellate court that never came, and the undue delay left Burke in legal limbo.
Burke’s attorneys have not responded to multiple requests for an interview. More than once, publicists hired by Burke’s defense team to arrange interview with members of the media were later withdrawn without explanation.
Under the law, a criminal case in a lower court can be delayed if one or both sides file appeals, but Burke’s attorneys contend that only counts if an appeal is prosecuted. The lack of an opening brief means it wasn’t, according to them.
“We can’t determine if the appeal was frivolous or not because there was, ultimately, no appeal,” the attorneys wrote. “There was simply a notice.”
The issue could be complicated by the fact that Burke’s own legal defense team have agreed to waive his rights under the Speedy Trial Act more than once before the court dismissed some charges, which added to the amount of time he had to spend on pre-trial release.
In their motion, Burke’s attorneys complain that his legal rights and purported work as a journalist has been impacted by this delay, though his pre-trial restrictions have been substantially reduced over that same period of time, allowing for him to travel out of state for a friend’s funeral and to take care of his wife, Tampa City Council Member Lynn Hurtak, who is recovering from cancer.
Nonetheless, his legal defense team says the one-year, drawn-out appeal — which accounts for less than half of the time spent on the case — justifies a permanent dismissal of the indictment.
That motion comes just a few weeks after the government notified the court that it intended to seek a superseding indictment against Burke that correct the legal errors made in the original one from two years ago.
If Burke is successful in having his indictment dismissed, the only person who will have faced punishment for the computer trespassing crimes is Gaudino, who reached a plea deal with prosecutors last year and is expected to testify against Burke if his case goes to trial.
