Referring to the ruling in United States v. Garcia (9th Cir. 2003), Friedman argued that there were "exceptional reasons" warranting Tubbs' release. In particular, Friedman argued that Tubbs' cooperation as an informant was exceptional, that he began cooperating immediately upon his arrest, and that this probably played a substantial part in both new charges and defendants. Friedman also argued that Tubbs was not a flight risk, and that Tubbs had abandoned the "movement" many years ago. Unlike the last detention hearing for Tubbs, which occurred in February 2006 before Judge Coffin, Tubbs at this time had entered formal "guilty" pleas to nine arsons he participated in.
Kirk Engdall of the US Attorneys' Office countered that Tubb's cooperation was significant, but that it was not "exceptional," in that people facing charges offer statements against each other all the time. Engdall attempted to maximize Tubb's role in over a dozen incidents of sabotage, and quoted tapes made by informant Jake Ferguson containing hyperbole. Engdall also suggested that two of Tubbs' friends offered their house as bail for Tubbs due to their alleged indirect involvement in a 1995 animal liberation action. Engdall dramatized Tubbs as a flight risk, citing false identification discovered at the time of Tubbs' arrest, as well as Tubbs allegedly having knowledge of how to secretly enter Canada.
Friedman, for Tubbs, countered that Tubbs had little support in any activist community since becoming an informant, and that his client had neither the desire nor the means to flee. He stated that Tubbs had cooperated without limits for the authorities, and that Aiken should exercise her broad discretion and release Tubbs.
Tubbs then spoke on his own behalf, stating that Engdall was exaggerating his involvement in several crimes, and also that he was not a terrorist. Tubbs stated that he was truly sorry for his past acts, that he was "young and idealistic and caught up in the movement," and that the only reason he did not come forward earlier regarding the crimes was that he feared losing his family. Tubbs then pleaded to be allowed to see his fiancée, friends and family on the outside before he goes for formal sentencing, when he will receive appropriately 14 years.
Engdall made a brief response to Tubbs and Friedman while inappropriately glaring at Tubbs, stating that Tubbs had been linked to sixteen arsons, and that he still had not realized the "full gravity" of what he had done. Engdall argued that there were no exceptional reasons that would justify Tubbs' release, and that he should therefore be held in detention for the remainder of time until sentencing, approximately 14 years.
Aiken, upon hearing all these arguments, noted that the law states that a defendant facing ten or more years "shall" be detained unless exceptional circumstances are proven. She ruled that the exceptional circumstances cited by Friedman had not been proved sufficiently, and that both individually and collectively they would not suffice. Therefore, Aiken denied Tubbs' motion, returning him to detention as he awaits sentencing.