Judge William Alsup, U.S. District Court for the Northern District of California (Photo: Jason Doiy/ALM) Judge William Alsup, U.S. District Court for the Northern District of California (Photo: Jason Doiy/ALM)

Faced with a key witness expressing concerns about coming to court to testify during the coronavirus pandemic, a federal judge in San Francisco has again postponed the resumption of a criminal trial against a Russian man accused of hacking Silicon Valley technology companies.  

U.S. District Judge William Alsup of the Northern District of California on Thursday said the trial of Yevgeniy Aleksandrovich Nikulin, who has been in custody for 41 months awaiting trial on charges he hacked into computers belonging to LinkedIn, Dropbox and Formspring, would resume on May 4. The date falls after "shelter in place" orders and general orders currently governing court procedures across the Northern District are currently set to expire.

Alsup, noting that the U.S. surgeon general has referred to this week as the nation's "Pearl Harbor" week in respects to the COVID-19 pandemic, said that he hopes that the situation will be more stable by then. But he also said that he, the lawyers, and jurors, who had originally been set to return on April 13 to hear the case, were doing "essential" work and should prepare to move forward on May 4 with the necessary safety and social distancing protocols in place. 

"We are an essential function, and we've got to stand up and do our job. That's my view," said Alsup. The judge noted the time that Nikulin has already been in pretrial detention could possibly be longer than any sentence that might result from his conviction. "For his sake if nothing else, because he's the one whose liberty has been deprived," the judge added.

Although federal prosecutors had indicated they were prepared to move forward with trial on April 13 as originally planned and Nikulin's lawyers indicated that was his preference, a lawyer for Ganesh Krishnan, a former LinkedIn security official set to testify, indicated he had a health condition that made him uncomfortable with coming to a crowded courtroom during the current state of the pandemic.

Appearing by telephone Thursday, Laurie Mims of Keker Van Nest & Peters, who represents Krishnan and LinkedIn, did not reveal the witness' health condition, but said that he believes it has resulted in him having a compromised immune system. She said that LinkedIn, which as a hacking victim has a right to have an observer in court for the proceedings, would not be sending anyone should trial resume next week. "LinkedIn is not willing to risk the health of its employees and legal representatives to have a representative at trial," she said.

Alsup asked Assistant U.S. Attorney Michelle Kane, one of the federal prosecutors trying the case, if the law allowed for Krishnan to testify remotely by video. Kane said that such an arrangement raised issues with the defendant's constitutional right to confront witnesses testifying against him, but that the U.S. Supreme Court has allowed remote testimony in instances where there's been a "case-specific" finding of necessity. She said the high court has allowed remote testimony in instances where child victims have testified against those charged with exploiting them. Kane asked Nikulin's lawyers to waive his confrontation right in this case.

But Adam Gasner, one of Nikulin's lawyers, said that being able to confront a witness and see his or her behavior on the stand is important to any defense case. Gasner said that Nikulin shouldn't be forced into a "Hobson's choice" of leaving his constitutional rights at the door in order to move forward with trial. "His constitutional rights should be preserved," he said.

Alsup ultimately said that the parties should figure out arrangements for the witness to testify remotely, but that he wasn't ruling out ordering Krishnan to appear in person when trial resumes. Regardless, Alsup said trial would move forward in a way that preserved any potential defense objections.

Alsup also noted that Nikulin, who is now 33, has spent about 10% of his life now waiting to get to trial. Although part of that is the result of delays in his extradition and concerns about his competency to stand trial, Alsup still said that delay was weighing on him.

"Ten percent of his life down the tubes—if he's acquitted, down the tubes for nothing." said Alsup. "That's why we need to have this trial."

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