He's also never been tried and convicted so the judge is out of order treating him as if he has been tried and convicted.
The judge made a finding of fact that the machines contain data that doesn't belong to Love. She is then perfectly correct to use that as a basis for the conduct of the rest of the case. The courts would be paralysed with a neverending merry-go-round of hypoethetical arguments if that wasn't the case. The court explores an issue, the judge makes a determination and then the case proceeds on that basis.
Biting the hand that feeds IT
