The judge said he had "serious concerns about the government's case" against Crippen for running a small business out of his Anaheim home which opened and modified the firmware on Xbox 360 optical drives so they could play pirated games. The case is the first to have a criminal jury examine the legality of jailbreaking a game console.
"I really don't understand what we're doing here," Gutierrez said according to Wired. "Maybe two of the four government witnesses committed crimes. I think it is relevant and the jury is going to hear about it â- both crimes."
Gutierrez was especially concerned that the prosecution planned to use two witnesses who have allegedly broken the law themselves. Crippen's defense lawyers argued that one of the government's witnesses, Entertainment Software Association investigator Tony Rosario, violated privacy laws when he secretly video-taped Crippen allegedly mod an Xbox at his Los Angeles home. The second witness, Microsoft security employee Ken McGrail who analyzed two Xboxes Crippen allegedly modified, admitted to modding Xboxes himself in college. The government fought to keep the witness conduct a secret from the jury but the judge decided against doing so.