In a move that surprised the courtroom, the defense in the trial of U.S. v Jitesh Thakkar rested its case shortly before 1:00 p.m. on Thursday afternoon. Thakkar’s attorney, Renato Mariotti, had called no witnesses in his defense.
For the benefit of the jury, Mariotti played about 12 minutes of excerpts from the recordings of the FBI’s two early morning surprise visits to the defendant’s home. In these recordings the jury heard, among other things, FBI Agent Brent Potter reassure Thakkar that he need not be worried, that he was not under investigation. Under cross-examination on Tuesday, Potter had testified that that had been a lie.
And then the defense rested. Judge Gettleman informed the jury that the conspiracy charge had been dropped and that closing arguments in the trial on the remaining two charges of aiding and abetting would be heard on Monday.
Outside the presence of the jurors, the day up until then had been action packed. The first item on the schedule for the day was a motion hearing to start at 9:30. Mariotti had filed a motion to dismiss all charges at something like 1:00 a.m. Wednesday morning and Gettleman gave the defense the rest of the work day to prepare its response. Moving to dismiss all charges is a not uncommon gambit by the defense – “in light of the paucity of evidence provided by the prosecution the judge should find that the jury could not find the defendant guilty beyond a reasonable doubt.” In scheduling the motion hearing on Wednesday, Gettleman had noted the unusual timing of Mariotti’s submission. Gettleman, echoing Mariotti, also said that while such motions are usually pro forma there were issues raised in this defense motion that merited discussion and consideration.
Gettleman began the hearing by complimenting the quality of the work that the lawyers had produced in such short time frames and under stressful conditions. He seemed especially respectful to the prosecution, whom he had given relatively little time to respond. Mariotti argued energetically that the case against his client had not been made. The prosecution attorneys argued legal theories and precedents. The judge said he would take it all under consideration.
After a brief recess, Gettleman announced that he had decided to throw out the conspiracy charge because Navinder Sarao, the government’s own witness, had persuasively testified that he had had no agreement with Thakkar other than for Thakkar to produce the software. While he would allow the jury to decide if the evidence supported the charges of aiding and abetting, Gettleman warned that the prosecution’s case was “thin.”
After a long recess intended to afford the defense team time to confer and recalibrate its strategy in light of his decision, Gettleman conferred with the attorneys, called Thakkar to the bench and asked him if he wanted to testify. Thakkar said he did not.