Not disagreeing, but I suspect in practice this is what will matter. Would this prosecution really have any legal leg to stand on if they had only created the contract and walked away? It seemed like almost all of what the prosecutors published focused on the side activities, although you're 100% right that somewhere they framed it as "they could have changed it but they didn't". That last part is clearly the most dangerous of all to software developers, but it's hard to believe that that will stand up on its own?
Discussion
So the Dutch prosecutor seemed to back and forth on this over the months. At the worst times they would say: hey, it was your choice to remove control over the smart contract so you're responsible for the consequences. But most of the time the argument was that Tornado Cash / Peppersec was run like a business and it's *not* about merely writing code.
But even the latter is not comforting. Not being allowed to make money from a privacy-friendly product is a massive disadvantage in the market dominated by ad fuelled surveillance tech.
I think this makes it worse! You’re totally right that it changes the “feel” of the case (which absolutely changes the outcome for a jury or even judge) but the facts are the facts and that makes the precedent of the case (which matters here in the us and most of the commonwealth) all that much worse!