Attorney Mark D. Rasch took responsibility for the writing of the motion to dismiss on constitutional grounds. Fellow attorney Michael P. Maddux admitted that he had not written or reviewed the filing, though a signature block form was carried over from the previous pleadings in the case.
Rasch said substantial legal research and writing was done using Westlaw, Westlaw's AI features, Google, Google Scholar and the Pro version of ChatGPT version 4.5. Also, Westlaw Quick Check was used several times, though the final version of the memorandum was not ultimately put through the software, the attorneys said.
"During the editing and revision process, certain corrected and properly verified portions of the memorandum were inadvertently replaced with portions from multiple earlier drafts which had not undergone verification," Monday's filing said. "This included research, which had not been reviewed, being retained, while arguments and research that had been vetted being deleted. This resulted in the retention of unverified and erroneous citations."
On Friday, U.S. District Judge Kathryn Kimball Mizelle of the Middle District of Florida castigated Burke's counsel for filing a litany of erroneous case citations but offered the defendant a chance to refile his motion, without the errors, if the attorneys explain "how these unprofessional misrepresentations of legal citations occurred and what counsel will do to avoid filing any similarly unacceptable motions again."
"Both counsels deeply regret and formally apologize to the court and opposing counsel for the situation before the court," the defense counsel said Monday.
Burke, a former journalist who released unaired video of Fox News star Tucker Carlson interviewing the artist formerly known as Kanye West, was charged in a 14-count indictment in February 2024 with conspiracy and computer fraud for allegedly using credentials to access an unaired archive of footage. Burke has pleaded not guilty.
The attorneys described work on the case as being "handled from a team perspective" across different geographies. The two also pointed to the time deadline and outside priorities for their "mistakes and ill-advised reliance on AI." The defense added that better team communication, an extension to file the motion, and full awareness of how the pleading was drafted would have prevented the issues.
"There was no intention to mislead the court or opposing counsel, nor any intention to delay these proceedings or advance arguments or cite cases unsupported by law or precedent," the filing said. "Retaining credibility with this honorable court is essential, and both attorneys recognize the seriousness of this obligation. Both attorneys would like to remain on the case."
Neither party immediately responded to a request for comment Tuesday.
Burke is represented by Mark D. Rasch and Michael P. Maddux.
The government is represented by Adam John Duso, James A. Muench and Jay G. Trezevant of the U.S. Attorney's Office for the Middle District of Florida.
The case is U.S. v. Timothy Burke, case number 8:24-cr-00068, in the U.S. District Court for the Middle District of Florida.
–Additional reporting by Frank G. Runyeon. Editing by Karin Roberts.
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