Judge raises eyebrow over Xbox modifying case

The first criminal case against a bloke who ran an Xbox modifying business is suddenly not going very well for US government prosecutors.

It was expected that the government prosecutors would win hands down after the Judge in the case refused to allow to hear Matthew Crippen’s “fair use” defence.

However US District Judge Philip Gutierrez launched a 30 minute tirade at prosecutors saying that he had serious doubts about the government’s case and he really wondered what “we’re doing here.”

Gutierrez waded into the prosecution over everything from alleged unlawful behaviour by government witnesses, to proposed jury instructions harmful to the defence.

According to Wired, when the verbal assault subsided, federal prosecutors asked for a recess to determine whether they would offer the defendant a deal, dismiss or move forward with the case that was supposed to be the first jury trial of its type.

The judge said that prosecutors were planning to put onto the stand two witnesses who may have broken the law.

Entertainment Software Association investigator Tony Rosario secretly video-recorded defendant Matthew Crippen allegedly performing the Xbox mod in his Los Angeles suburban house. This is against California privacy law.

Microsoft security employee Ken McGrail analysed the two consoles Crippen allegedly altered, despite the fact that McGrail admitted that he himself had modded Xboxes in college.

So two of the four government witnesses admitted that they have committed crimes and the government had fought to keep the witness keep a secret from the jury. Apparently Gutierrez was not going to let the government get away with that.

After hearing the opening arguments the judge backtracked on an earlier ruling that had prohibited Crippen, 28, from raising a “fair use” defence at trial.

Prosecutor Allen Chiu’s proposed jury instructions included the assertion that the government need not prove that Crippen “wilfully” breached the law.

However the judge noted that the government’s own intellectual property crimes manual concerning the 1998 DMCA says the defendant has to have some knowledge that he was breaking the law.

He said that he was “getting more riled”and he went through a laundry list of complaints over the prosecution.

Apparently the unusual judicial rebuke was so interesting that a dozen prosecutors and defence attorneys popped in from other courtrooms to hear it.