A New York judge couldn’t decide yesterday whether or not to acquit Tornado Cash co-founder Roman Storm on conspiracy charges relating to his role in the creation of the non-custodial crypto mixer. 

Storm was convicted last year of conspiracy to operate an unlicensed money transmitting business, however, a jury was unable to come to a decision on more serious conspiracy to launder money and conspiracy to evade US sanctions charges.

As such, the question of whether or not to acquit Storm fell to Judge Katherine Polk Failla.

“This is a lot,” she said after hearing arguments from both Storm’s defence and government prosecutors.

As reported by The Block, Storm’s defence argued that Tornado Cash is legal, and that his work to update and maintain his legal business used by ordinary people doesn’t make him guilty of abetting the criminal money launderers who also use it.

General Counsel of Solana Policy Institute, Patrick Wilson, called this expansive claim “alarming,” and noted that, “Once criminals use a noncustodial tool at sufficient (though unspecified) scale, even otherwise lawful activity can be recast as illegitimate.”

Government prosecutors argued, however, that his work means he not only helped but profited from money launderering. One prosecutor caused a brief stir in the courtroom after implying that anyone whose funds were mixed with criminal funds via Tornado Cash may also be liable.

The CEO of the DeFi Education Fund, Amanda Tuminelli, attended the hearing and claimed that the government “still does not understand the tech at issue.”

Read more: Ethereum dev arrested in Turkey ups Roman Storm donation to $500K

“The lack of nuance, the misrepresentations about how a UI functions, and the equivocation between different technologies is really disheartening at this point in the case,” she said.

“It was good to see the judge digging in and asking detailed questions, but there is no way to predict how she will rule on Storm’s motion. Given that she was focused on dates for retrial at end of 2026, I think we can expect to see the case continue,” Tuminelli added.

The Rage reports that the topic of the First Amendment was barely touched upon, as well as the subject of unlicensed money transmission. The choice of New York as the venue was debated, however.

The prosecution claimed that the location of a Tornado Cash hacker, investors, and an attorney acting on behalf of a hacked crypto exchange, are all based in New York. Storm’s defence hit back, claiming that the investor’s funding was irrelevant and that the hacker didn’t use Tornado Cash for illegal purposes.

Prosecutors further claimed that an Ethereum cloud service used by Tornado Cash, which used a Manhattan bank, also constituted a New York venue.

Storm’s defence argued, however, that the payments to this cloud service cannot constitute an act aiding criminal conspiracy.

Roman Storm faces an October retrial

After last year’s trial, Storm filed for a pre-trial motion under Criminal Rule 29 that would acquit him on all counts. 

His defence argues that the prosecution’s evidence wasn’t legally sufficient, and claims that, if his acquittal isn’t granted, the government “would criminalize the publication of decentralized software in violation of the first amendment.”