More on Joshua Schulte’s Attempted Hack of the Justice System

A few weeks ago, I described what I believed was an attempt by Joshua Schulte to hack the judicial system — not by using computer code, but by exploiting legal code. In a status hearing, he claimed that he had informed prosecutors that he wanted to proceed pro se (representing himself). The sole remaining member of the prosecution team, David Denton, said he hadn’t heard of it.

A letter submitted by Denton and AUSA Michael Lockard today, who has joined the team, explains why: after they reviewed one of many appeals Schulte had filed (this one a demand for the judge in this case to recuse), he actually informed of his purported decision Judge Paul Crotty ex parte, before he sent a contrary filing, also ex parte. Crotty, having gotten no unequivocal indication that Schulte intended to proceed pro se, did nothing, which is part of the basis for Schulte’s mandamus filing.

On June 9, 2021, the defendant filed a pro se petition for a writ of mandamus in the Second Circuit seeking to recuse the District Court, claiming, among other things, that the defendant “petitioned [the Court] to represent himself in multiple letters throughout November 2020,” and that the Court “did not hold a Faretta hearing as required by law.” In Re: Joshua Schulte, 21-1445, Dkt. 1 at 10 (2d Cir. 2021). At the status conference in this matter on June 15, 2021, the Government noted that no such request appeared on the docket for this case, and that the Government was not aware of the defendant expressing “an unequivocal intent to forego the assistance of counsel.” Williams, 44 F.3d at 100. At the conference, defense counsel, at the defendant’s apparent request, stated that this was incorrect, and the defendant did wish to proceed pro se. Following the conference, defense counsel forwarded the Government a copy of a letter dated November 6, 2020, in which the defendant indicated his desire to proceed pro se, and informed the Government that the request had been submitted by the defendant to the Court ex parte. Defense counsel further explained that, in subsequent ex parte communication with the Court following the defendant’s November 2020 letter, defense counsel had advised the Court that the defendant intended to continue with counsel.

Much of the letter submitted today is routine process for when a defendant claims to want to represent himself. Among the precedents the government cites are two (one in this circuit) holding that a defendant cannot be co-counsel with his defense attorney, which is effectively what Schulte has done.

(4) a defendant who elects to proceed pro se “has no constitutional or statutory right to represent himself as co-counsel with his own attorney,” United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989); see also Schmidt, 105 F.3d at 90 (“[T]here is no constitutional right to hybrid representation.”).

And while at the hearing Sabrina Shroff had suggested she and Deborah Colson serve as stand-by counsel, the government rightly notes that in his mandamus petition, Schulte raised conflicts reviewed before his first trial, which is something amounting to advice from Shroff that Schulte write down everything he wanted to leak in his prison notebook. They’re using that to ask that Crotty appoint someone besides Shroff (though they don’t name her) as standby counsel.

With regard to the appointment of standby counsel, the Government notes that the defendant’s recently filed pro se mandamus petition reiterates his prior claims that he wishes to call as witnesses certain of his prior and current counsel from the Federal Defenders of New York, although that claim is framed in the context of arguing that the Court’s prior rulings on this issue demonstrate bias that requires the Court’s recusal, rather than seeking relief from the Court’s orders themselves. See In Re: Joshua Schulte, 21-1445, Dkt. 1 at 4-9 (2d Cir. 2021). Accordingly, in order to avoid later claims alleging any purported conflict-of-interest, the Government respectfully suggests that it would be prudent for the Court to appoint as standby counsel one of the defendant’s current or former attorneys not implicated in the defendant’s claims asserting conflict or implicating the attorney-witness rule.

So the letter explains what, in a normal court room, is going on. But I maintain that Schulte is (and has been, for some time) attempting to do what he did with CIA’s computer systems: send a bunch of conflicting messages to get the machine to operate in a way entirely unexpected. Indeed, one tactic he’s using is one he used several times at CIA, the same tactic small children use when one parent gives them a response they don’t like: Schulte is bypassing his criminal docket (both through the use of the ex parte letters and the non-associated dockets, to ensure the government didn’t learn of this ploy until all the Speedy Time would, if the ploy is successful, have elapsed).

If I were the government I’d have some good hacking investigators review the docket to try to understand it all from a hacker’s brain. Because, at the very least, I suspect Schulte plans to claim that the government simply forgot to hold his second trial.

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23 replies
  1. Rugger9 says:

    Were the contents of Schulte’s ex parte discussions with the court released? As it is this gambit reads more and more like the murderer who kills his parents and claims to be an orphan to get pity points. We already learned from the last post about Schulte that the Government is not bound by anything back channel that they did not agree to in writing. Since this case is in active trial mode, I would think anything that the court was required to consider had to be docketed. That would include removing Shroff for pro se representation since the dual-headed monster model is not supported by precedent as noted by EW.

    If I were Judge Crotty, I would think now would be an appropriate time to rule that the two contradictory ex parte communications did not advance any coherent claim and therefore the court has no cause of action to consider with judicial notice. This would go to Shroff as well, and perhaps a briefed hearing would be calendared to settle the question of representation for the rest of the proceedings. Would the appellate level intervene like the DCC did for Flynn’s mandamus? That’s a question to be answered, because I would guess that Schulte’s legal antics have to have some purpose to prevent him and his counsel from being sanctioned for wasting court time.

  2. Silly but True says:

    Great dissection.

    So the first, most interesting hurdle is jumped: the pro se filing does indeed exist in albeit atypical form. Schulte wasn’t exactly then talking completely out of his butt.

    The lynchpin to Schulte’s hack is the contrary later filing, which isn’t exactly all that clear whether it speaks from Schulte’s mandate or not (emphasis added):
    “Following the conference, defense counsel forwarded the Government a copy of a letter dated November 6, 2020, in which the __defendant indicated his desire to proceed pro se__, and informed the Government that the request had been submitted by the defendant to the Court ex parte. Defense counsel further explained that, in subsequent ex parte communication with the Court following the defendant’s November 2020 letter, __defense counsel__ had advised the Court that the defendant intended to continue with counsel.”

    Schulte’s gambit is then: he clearly filed pro se, and the Court then did not receive any contrary direction, because the court should have simply ignored defense counsel’s later/contradicting filing if it came from anyone besides Schulte.

    So now will that ploy have any traction.

    • bmaz says:

      This is complete baloney. A CDL once an atty of record, remains an atty of record until not an atty of record. You and Schulte don’t get to blithely erase that. Tried to explain that to you before, apparently to no use.

      And, no, Schulte did not “clearly file pro se” until a court so determines. I do not yet know what your angle is, but you are misrepresenting things to people here.

      • Silly but True says:

        Lol. Calm down: I’m seeking to divine Schulte’s ploy.

        If it is to work then the prosecution has already fallen prey: DoJ has requested Faretta hearing to weigh Schulte’s argument, already legitimizing Schulte’s argument to a degree.

        But _if_ Schulte’s Nov. filing deserves a hearing — and DoJ is appearing to argue it does — then why didn’t it get the hearing already in timely manner?

        DoJ for obvious reason is acting like Schulte is asking pro se today; Schulte maintains it was in Nov.

        At the DoJ’s requested Faretta hearing, if one is granted, and if court concludes that Schulte did make an intelligent request and can effectively represent himself, why shouldn’t Schulte then argue the court’s determination should apply retroactively to Schulte’s Nov filing rather than starting now going forward?

        • bmaz says:

          Yes, I am aware of what a motion for determination of counsel/Faretta determination is. YOU are acting like there has been one when there has not been. So maybe you should chill out and “calm down”, “Silly”.

          • Silly but True says:

            Defense says there has been that motion and for its part, prosecution says it’s not clear if such a motion was made or not but requested the court hold a hearing as if there’s been such a motion.

            If the court concurs with prosecution’s request to hold the hearing, who filed that motion and when?

                • bmaz says:

                  Is there a court determination? No? Then this is baloney. A party, even a crazy asshole like Schulte, can submit anything (see, eg, Sid Powell), but until it is determined by a court, it is what it is, and until then it is not much.

                  • Silly but True says:

                    Right. But he’s already hooked DoJ into his pro se cause.

                    Why should DoJ do anything here other than maintain that Schulte is conniving?

                    I suppose they might have a case in seeing hearing through that while Schulte is intelligent and of clear mind, he still can’t act as effective counsel?

                    • emptywheel says:

                      bmaz’ point, I think, is that Schulte will be unsuccessful claiming that he has been operating pro se since November, which is what, I think, Schulte was attempting.

                      DOJ is now responding in the normal manner, Shroff will respond, they’ll hold a hearing and only then will Crotty make the determination that Schulte is henceforth pro se.

  3. Peterr says:

    What are the rules around making ex parte filings?

    I’m familiar with them in national security cases where the prosecution wants the judge to rule on something, but the evidence to support it is classified and not something they want to reveal to the accused spy at the defense table. My sense is that these are exceptional filings, and not done lightly.

    But Schulte’s motion is nothing remotely like that. Why would a simple motion asking to proceed pro se be done ex parte?

      • Peterr says:

        But why wouldn’t the court simply say something like this: “You can’t make this motion ex parte. There’s no reason for this to be kept from the government, nor any reason to preclude them from responding to it before I rule. Come before me at your next hearing, and I’ll hear the motion then. In public.”

        ???

        • bmaz says:

          We’ll see. But simply filing junk by crazies does not carry the day. When the court rules, in whatever direction, then fine.

        • Silly but True says:

          At this point it’s not clear whom Schulte is more irate at: U.S. government or his appointed defense team.

          He blames them for his superceding MCC indictment, and the whole conflict-of-interest business is all tied to that belief.

          (Yes, he still may also be trying to connive the prosecution) but is this particular ex parte communication his attempt to get around his own counsel since there’s already long history of a contentious relationship in this case already?

          That is: is Shroff the one he tried to hide his act from here, not DoJ?

          • emptywheel says:

            There’s no reason to believe he’s *actuallly* irate at Shroff. He’s pretending to be for legally convenient reasons.

            • Silly but True says:

              Ha! Good point. Too much games have been played by Schulte to date to know if he’s serious or not.

    • Rugger9 says:

      There is also the question of whether the court received it (i.e. is there proof of delivery like certified mail?) which incidentally is why the notice to government filings were highly likely to be bogus. There was and is no evidence that the government received the pro se requests much less agreed to them.

      At least in CA, to do what Schulte’s pulling here requires a petition to the court because of where they are in the trial process. SBT seems to forget about that important detail.

      • P J Evans says:

        Yeah, you should have delivery receipts for legal docs like that. If not certified, then registered with a return receipt requested.

        • bmaz says:

          As I have said a couple of times, once a CDL of record, you remain so, until formally removed by the court, irrespective of what a crazy ass client does. There is a process, but the court has to determine that.

          • P J Evans says:

            Not arguing that. But he claims he sent stuff to the court/government, no proof it ever even existed.
            (My brother at one point was dealing with his draft board registered, return receipt requested. He had better sense than Schulte. And got his CO status.)

  4. Balifarthelost says:

    So how does the legal system respond to such abuses?

    I seem to remember some copyright trolls who tried similar motion abuse / legaljamming (is that a word?) who managed to jam things up for awhile but they got smacked around quite entertainingly, though it took awhile to get there.

    Prenda law is the name, entertaining and terrible saga, well written up over at Techdirt.com .

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