By JONAH LOSSIAH
One Feather Staff
Following a hearing called on Friday, Aug. 6, Tribal prosecutors have dismissed five of the seven remaining charges against Benjamin Cody Long.
The One Feather had requested that the Court provide public notice of any hearings concerning Long, but in the case of this hearing, the reporter was not notified, so no first-hand observation by the paper was possible. During this meeting, Tribal prosecutors dismissed five counts of misusing Tribal money or property [Cherokee Code Section 14-70.42 (c)(1)]. Charges 20 CR 0466 through 20 CR 0470 were dismissed, leaving Charges 20 CR 0464 and 20 CR 0465.
The hearing held on Monday, Aug. 9 was to a motion to limine by the defense. Attorney Robert Saunooke was the leading voice of the defense on Monday. He argued that evidence involving ‘Microsoft Azure logins’ used by the prosecutors was incomplete, and therefore was unfit for use in the upcoming trial. He said that the evidence being used was ‘cherry picked’ from a huge list of possible login information. That ocean of information is now gone.
According to Saunooke, and confirmed by called witness Doug Chase, Microsoft has a feature that will delete all of this information after 90 days. This has led the defense to question whether the chosen documents should be used as evidence, for there is no more exploring that can be done by either party at this point. Saunooke pointed out that since his client was initially charged, it has been discovered that there were multiple attempts to log into Cody Long’s account when he was in custody. He said that there very well could have been more information that the is now erased that could be used to clear up this case.
Saunooke said that the responsibility to acquire and protect this information lies with the Tribe, and that the defense didn’t even have access to the information until after the 90-day period had passed and the information was unavailable.
Doug Chase, information security officer for the EBCI Office of Information Technology (OIT), was called to the stand for questioning. While on the stand, he explained how and why he exported the files that were being used as evidence. He also explained that he did not have any direct or consistent contact with the operators of ransomware or Coveware, the company that the Tribe hired to negotiate the ransomware issue. He said those discussions were dealt with by OIT Director Bill Travitz.
After hearing the cases offered, Chief Judge Monty Beck said that there were three pieces that the arguing parties needed to answer through a written briefing. He said that one of them was more or less answered, and that was the authentication of the evidence. He said that he felt that Chase could properly authenticate the pieces involved.
The two issues that he needed most to judge were addressing the Brady Rule and Hearsay evidence. The Brady Rule ‘requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense’. The defense is arguing that by not procuring all of the possible evidence, the prosecution did not address their burden in the case and therefore were not abiding by the Brady Rule.
The third aspect of Hearsay evidence addresses whether the documents provided by the prosecution are official ‘business records.’ The defense argued that because the Tribe does not own the information provided by Microsoft, nor do they have direct control over the handling of those logs, that they should not be deemed official records. If this was the decision of Judge Beck, the evidence could be considered inadmissible for trial.
Judge Beck set a deadline of Sept. 1 for these briefs to be submitted to him, and he said that he could be offering a decision on Sept. 8.
The defense initially had nine charges brought against them. On Feb. 17, two felony charges were dismissed. These were 19 CR 4505 Felony Tampering with Public Records (In violation of Section 14-70.12(a)(3)) and 19 CR 4606 Felony Obstructing Government Functions (In violation of Section 14-70.14 (a)(2)).
The hearing of EBCI vs Benjamin Cody Long was set to be begin trial this week. However, one of the ‘essential witnesses’ for the Tribe’s case tested positive for COVID-19. After consideration from the Court, it was deemed that due to a lack of network connectivity the witness could not attend the trial virtually. Because of this, a motion to continue by the Tribe was granted.
The scheduled trial date is now set for Monday, Oct. 11. Judge Beck requested that if either party had any further motions, they should have them submitted and heard by Sept. 8 to ensure they do not impact the trial date further.
