Jury In Paused Hacking Trial Has Some COVID-19 Concerns

By Hailey Konnath
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Law360 (April 27, 2020, 11:07 PM EDT) -- Nine California federal jurors on Friday expressed concerns with resuming the trial of a Russian man accused of hacking three tech companies, with one telling the court they are a physician "on the front-lines" battling COVID-19 and others citing age, underlying health concerns or close contact with high-risk family members.

The jurors were responding to a 10-item questionnaire that asked them about their health, commitments and how they feel about resuming the trial in the midst of the coronavirus pandemic. Last week, U.S. District Judge William Alsup approved the poll, which was proposed by federal prosecutors and attorneys for defendant Yevgeniy Nikulin.

On Friday, several jurors said they themselves were high-risk for coronavirus-related complications or that they lived with family members who were at an elevated risk. Ultimately, nine of the 14 jurors and alternate jurors said they'd prefer to delay the trial until after shelter-in-place orders were lifted or eased. Four members said they'd prefer to resume the trial May 4 no matter what, and another said it didn't matter either way.

One juror said their wife was high-risk due to underlying medical issues and traveling to a densely populated area like San Francisco "has caused me a lot of concern and anxiety."

"I am extremely concerned about exposure to COVID-19," they said.

The doctor-juror said they worked both in a clinic and in the hospital admitting patients. The physician mentioned concerns "about how to do basic activities without contamination," like having coffee, eating, going to the bathroom and conferring with colleagues during the trial.

Another juror said they would have trouble understanding people wearing masks during the trial because they rely a lot on lip reading. And another said they had potentially been exposed before California went into lockdown, adding, "I'm pretty sure everyone's been exposed." That juror also said their immune system "has not been very strong," but as long as everyone kept their distance from one another, "it should be okay."

One juror said they were 63 and concerned their age put them at higher risk. They remarked that "with all that is going on around me and my family, my health is way more important than this trial at this time."

Nikulin was arrested in Prague on a nine-count indictment charging him with using stolen identities to illegally access computers owned by LinkedIn, Dropbox and defunct social networking site Formspring during a three-month span in 2012. He's accused of potentially exposing sensitive data on up to 100 million users.

He pled not guilty to hacking charges in March 2018 after he was extradited to the U.S. against the wishes of Russia, which wanted to prosecute him for separate allegations.

The trial began March 9 of this year but was paused March 18 at Nikulin's request. In an April 9 order, Judge Alsup pushed the trial to early May, saying the court lacked information technology staff to resolve technical hangups and noted that the scarcity of COVID-19 tests meant there was no surefire way to keep the virus from the courtroom.

Several witnesses, including a LinkedIn representative, have said they aren't comfortable with traveling to San Francisco for the trial in the midst of the pandemic.

Also this month, the parties submitted a memorandum outlining proposed courtroom safety measures. Specifically, the proposal calls on participants to maintain six feet of distance at all times, meaning the courtroom gallery would likely need to serve as overflow seating for jurors.

Adam Gasner, counsel for Nikulin, told Law360 on Monday that many of the jurors raised valid concerns about safety protocols. A criminal jury trial, by its nature, requires many people to convene in relatively close quarters, he said, adding that it's "a system that was never designed to be conducted remotely."

"The defendant, the lawyers and in many ways most importantly, the jury, has to be able to look the witnesses in their eyes and judge their credibility by their demeanor and body language while being cross-examined in open court," Gasner said. "In this way, wearing masks and physical distance really hinder a search for the truth."

A representative with the government didn't immediately return requests for comment Monday.

The government is represented by Michelle J. Kane of the U.S. Attorney's Office for the Northern District of California.

Nikulin is represented by Adam G. Gasner of The Law Office of Adam G. Gasner.

The case is U.S. v. Yevgeniy Aleksandrovich Nikulin, case number 3:16-cr-00440, in the U.S. District Court for the Northern District of California.

--Additional reporting by Dave Simpson and Jack Queen. Editing by Bruce Goldman.

For a reprint of this article, please contact reprints@law360.com.

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October 20, 2016

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