Hutchins is in Milwaukee in the US state of Wisconsin, awaiting trial on charges that he wrote and helped distribute a banking trojan known as Kronos.
He was arrested by the FBI in Las Vegas on 2 August after he had boarded a plane to leave the US after attending the annual DEFCON security conference.
Hutchins gained the attention of the world when he stopped the spread of the WannaCry ransomware by accident in May last year.
His legal team — Brian Klein, Daniel Stiller and Marcia Hoffman — filed the motion on Friday seeking:
- all materials and communications relating to Hutchins' arrest;
- similar information about the unnamed co-defendant;
- similar information about "Randy", the pseudonym for a government co-operator; and
- portions of the grand jury transcripts dealing with legal instructions for crimes mentioned in the pending indictment.
The legal team asked for information on whether the US Government had been tracking Hutchins before his arrest. They pointed out that though the agents who arrested him claimed to have read him his rights, there was no audio record of them having done so.
My assessment: DOJ is trying to figure out how to dig out of a ginormous hole they've created for themselves. But withholding all this ain't gonna cut it.— emptywheel (@emptywheel) 5 January 2018
They said that they intended to argue that Hutchins' statements made after his arrest were involuntary and in violation of his Miranda rights.
"The defence intends to argue that the government coerced Hutchins, who was sleep-deprived and intoxicated, to talk. As such, his decision to speak with the agents was not knowing, intelligent, and made in full awareness of the nature of the right given up and the consequences of giving up that right, as the law requires," the motion said.
Seeking information on the unnamed co-defendant, with whom Hutchins is alleged to have worked to create and distribute the banking trojan Kronos, the motion pointed out that only one of six counts in the indictment related to conspiracy to commit computer fraud and abuse.
The other five counts all claimed Hutchins and the unnamed co-defendant were acting in concert, the motion said, adding that despite this the government had produced only limited materials about the co-defendant that it had obtained through a request made under the mutual legal assistance treaty between the US and the UK.
It said the defence was entitled to information that was material to preparing its case. Additionally, the government could be well holding back information that could exonerate Hutchins.
With regard to "Randy", the co-operating witness, the motion said the defence had only received a heavily redacted FBI document of an interview with this individual. "But the government refuses to produce anything more, including 'Randy's' real identity, or even the name of his or her attorney, claiming such information is protected by the confidential informant privilege. The government is wrong."
The legal team sought the legal instructions provided to the grand jury to ensure that the latter had received the right instructions. This, it claimed, was because the government had shown a fundamental misunderstand of the laws that surrounded the indictment.