Published On: Wed, Jan 8th, 2020

Motion brought forth to reopen Long’s detention hearing

 

By JONAH LOSSIAH

ONE FEATHER STAFF

 

Tribal Court was brought to order just after 2 p.m. on Wednesday, Jan. 8 to hear motions brought forth by the defensive attorney of Benjamin Cody Long. It is the first action taken since the detention hearing on Dec. 11, 2019.

Brent Smith, Long’s attorney, brought forth a motion to compel, as well as a motion to reopen the detention hearing of Long. Smith says that with new information and a third party involved in the case, that he believes the case has changed and that Long should be allowed bond.

Judge Thomas Cochran opened with the motion to compel, which is used to ensure that both parties have access to necessary information on the case.

An issue that Smith brought up is that the Federal Bureau of Investigation (FBI) has apprehended material aspects of the case, and because of that the defense would not be allowed to progress with any independent investigation. He also cited the “Martinez case”, where the FBI withheld materials for 18 months on a trial that was eventually dismissed. He said that he did not wish to have Long sit in detention for an undetermined amount of time while waiting for a response from the FBI.

Cochran said that while he is sympathetic of Smith’s situation, that the same issue is hindering the tribal prosecutors. He continued by saying neither he nor the Tribe (Eastern Band of Cherokee Indians) could compel the FBI to hand over any of those materials until they conclude their investigation. Cochran says that he does not know when the FBI received them, but he expects that the investigation could take at least another month.

Moving forward, Cochran did order that tribal prosecutors share any information that they currently have with the defense. Cody White, who spoke for the prosecution, said that they are still attempting to collect all of their information for the case. The prosecutor said they would have no problem sharing what they had at this time. Smith said that he would be able to come by this afternoon to recover those materials.

It was also decided that the parties will reconvene on March 11 for a status hearing regarding any new information provided by the FBI. If the prosecutors receive this information before that date, they are expected to share it with the defense.

The motion of reopening the detention hearing was then considered. Smith said that with significant new information in the case, including possible misinformation provided at the original detention hearing, that it would make sense to reopen the hearing.

Tribal prosecutors said that while it does add to the evidence involved in the case, that the new information doesn’t materially alter what was heard on Dec. 11, and therefore the court should maintain with detention without bond. White also said that it would be premature to allow Long to have bond.

Smith said that, from his understanding, the Tribe has since had an interaction with a third party in regards to the ransomware, and that the Tribe has paid the ransom in order to receive the keys to get to their files. He said the emergence of this third party completely alters the case.

Smith continued by looking at the testimony of Bill Travitz on Dec. 11. Travitz testified then that there were just three individuals that had access to the “servadmin” account that was used to begin the cyberattack on Dec. 7. Smith says there is reason to believe that there were more than three people with access, and that the account’s access had not been altered in the last three to five years.

After hearing from Smith and the prosecutors, Cochran decided to extend the motion to reopen the detention hearing. He said that the prosecutors had until Jan. 17 to respond to anything said at the hearing on Wednesday. He also set the date of Jan. 24 for the motion to reopen the detention hearing, that time being offered to allow Smith to review the materials he will be provided with today.

Important dates moving forward:

  • Friday, Jan. 17 – Tribal Prosecutors Deadline to Respond.
  • Friday, Jan. 24 – Motion to Reopen Detention Hearing.
  • Wednesday, March 11 – Status Hearing.
  • Wednesday, April 8 – Schedule date for trial
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