RIAA angers the judge at trial

Day 2 of Round 2: Dr. Oops

IT’S A RARE TREAT for a member of the public to be able to walk into a regular, everyday federal courtroom and watch veteran attorneys make mistakes that would have Johnnie Cochran rolling over in his grave.

The treat in question was provided by the erudite and gentlemanly Dr. Doug Jacobson, favored gun-for-hire of the RIAA and a consultant, in his words, for “roughly 300 or so” RIAA lawsuits.

Starting shortly after 8am on a cloudy day in Minneapolis, Dr. Jacobson testified for nearly three hours about Peer-to-Peer networks, IP addresses, and MAC addresses. He broke down the technical into easy chunks that could be swallowed by the squarejohns and squarejanes of the jury. His presentation was masterful, obviously well-practiced, and the RIAA team knew exactly which questions to loft his way and when to loft them. Dr. Jacobson was a man in his element, and one could almost see his performance slowly crushing the life out of the defense’s case like an anaconda.

Until, that is, Dr. Johnson and the RIAAers tripped over a hard drive and turned their case into something for law professors everywhere to use as an example to teach their Civil Proceedure 101 students exactly what not to do.

SemiAccurate doesn’t claim to be a site dedicated to the ins and outs of legal nuance. Our opinions are blunt as often as they are sharp and our editorial philosophy is summed up just as well by Conan the Barbarian as it is by Hammurabi. But even we, with legal training sharpened through countless viewings of My Cousin Vinny, know that you never, ever pull surprise evidence out of your hat during a trial.

But that’s exactly what Dr. Johnson and the veteran RIAA law team did, presenting during testimony that Dr. Johnson had “A couple days ago” found “a data log” that showed that Jammie Thomas-Rasset had copied files from an external hard drive to the hard drive that he had been given for forensic examination. All fairly pedestrian until defense lawyer Joe Sibley said during cross-examination that this was the first that the defense had ever heard of any log file. Outraged by Johnson’s excuse that he’d just found the log “late last week”, Sibley snarled out, “No further questions!” and stalked back to his seat.

The jury was promptly removed and a heated bench counsel followed with Sibley visibly upset, Tim Reynolds the RIAA shark visibly shrinking, and Judge Michael Davis visibly exasperated. Dr. Jacobson was called back to the stand and asked to account for what happened.

Turns out that Dr. Jacobson wasn’t certain that he remembered all of the details of the case since it had been a solid year since he’d taken a look at any of the evidence that he’d collected. So he decided sometime last week to shake off the dust and come to trial prepared. This was when he found the log file in question, which he mentioned to the RIAA team who promptly forgot to pass it on to the defense. A mistake so elementary that even first year law students know better.

Before recessing for lunch an annoyed Judge Davis said that the RIAA’s “behavior in this case” was pushing him towards tossing out all of Dr. Jacobson’s testimony, and with that the court recessed.

After the unexpected drama of that morning, the afternoon was anti-climactic by comparison. Judge Davis’ anger had visibly cooled by the time he returned from the recess. Tim Reynolds outdid himself by apologizing to the court and the defense four times and all but offered to commit seppuku. He insisted that the mistake was not made in bad faith, and, despite Joe Sibley’s delightfully folksy accusation that the plaintiffs had “thrown a skunk in the jury box”, the judge was not inclined to strike a major part of the RIAA’s case from the record.

Most of that morning’s testimony would stay, Judge Davis decided, but the jury would be instructed to ignore the part related to Jammie Thomas-Rasset having hooked up an external hard drive to her current hard drive sometime in early 2005; not a major axis of the plaintiff’s case. After some squabbling over language the jury was recalled, instructed, and the case could finally proceed.

At that point the plaintiff’s called in Jammie Thomas-Rasset’s ex-boyfriend, Kevin Havemeier. Havemeier proved a problematic witness for both the plaintiffs and the defense. The plaintiffs because he was so ill prepared and nervous that he needed to read by rote out of his previous deposition in order to remember his facts correctly (an action that earned an admonishment from Judge Davis), and the defense because he remembered quite clearly that the few times he’d used Jammie’s computed while they were dating he’d needed help to log on; making it very hard to claim that someone else could’ve downloaded the files onto her computer.

Next came the unlikely figure of Ryyan Chang Maki, manager of the Geek Squad at the Best Buy, Duluth store. Pushing through a sea of pressed suits in his black pants and tennis shoes with a Geek Squad badge clipped firmly to his hip. His testimony, however, was clear and concise, and poked holes in Thomas-Rasset’s defense.

Shortly after (or shortly before) she received a letter from her ISP in March 2005 informing her of her freshly sued status, Thomas-Rasset had brought her computer into Best Buy for service. Her hard drive had died, and was replaced under warranty.

This was the opening salvo in the RIAA’s assault on Thomas-Rasset’s credibility. She swore under oath (twice!) that she had replaced the hard drive on her computer no later than early-2004. In fact, as Ryyan Maki testified, her drive had been changed out a full year later, which she neglected to tell the forensic experts for either the plaintiffs or her own on the defense.

Redirect produced few results by comparison, with Joe Sibley getting Maki to testify to the fact that the hard drive on Thomas-Rasset’s computer had really been broken when she brought it in, and that she was a good customer to Best Buy, racking up plenty of video game and DVD purchases.

Next up was Eric Stanley, an electrical engineer who had been retained by Thomas-Rasset’s previous attorney as an expert witness and who analyzed her hard drive for the defense. Stanley had originally supplied a report that stated that the hard drive had not had any of the incriminating software that the plaintiffs were looking for. However, Stanley submitted the report while operating from the assumption that the drive had last been replaced in early 2004, when in fact (as Maki testified) the drive was installed by Geek Squad in March 2005. Something at one of the depositions made Stanley decide to take a second look, and he found a sticker on the new hard drive giving its date of manufacture as 1/22/05, well after the date that Thomas-Rasset supplied.

Since he wasn’t in the courtroom for Mr. Maki’s testimony, Stanley said that he had no information as to when the hard drive had actually been installed and was dismissed.

Finally, Jammie herself was called to the stand.

Sparring ensued between Tim Reynolds and Jammie over the remarks that she’d made in the two initial depositions, with Reynolds reading directly from the transcript and Thomas-Rasset countering that he was misconstruing her testimony. The direction of his questions soon became apparent when he began to hammer on the discrepancies between her previous statements in which she swore that her current hard drive had been installed in 2004 when it was installed in 2005.

Thomas-Rasset did a good job of fending off attacks from that direction, admitting to nothing. But she did admit several key facts. She admitted that the only computer in the house was in her bedroom, that she did not have a wireless network, and that the “tereastarr” screen name was the same one she’d used for 16 years.

She also claimed to never have heard of KaZaA, although the evidence clearly shows that someone with her screen name and linked to her cable modem certainly had.

Finally, for a shot in the dark, Tim Reynolds wondered if the hard drive turned over to investigators wasn’t the same hard drive that was in the computer at the time of the alleged downloads.

“That’s true” replied Thomas-Rasset.

Defense declined to redirect at that time, leaving some drama for Wednesday’s proceedings.

The last witness of the day was Betsy Brown, a contract administrator from Warner Brothers records who was there to establish that someone under the RIAA banner had had their music downloaded and thus had the right to sue for damages. Those present were subjected to a short piece of Green Day’s “Basket Case” and threatened with more of the same from the Goo Goo Dolls and Linkin Park, but plaintiffs decided to be merciful and leave it at Green Day.

In the closing proceedings, the defense revealed that the trial could be over as soon as tomorrow afternoon. Twitter reports will start at 8am Wednesday with summary and final thoughts as the trial wraps up.S|A


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