From the article: For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge.
Once again we see the true nature of criminal prosecutions: the prosecutor's tactic is to bring outrageous charges that could result in decades in prison, bankrupt the defendant one way or the other (seizing assets or making the case so complex it bleeds him dry), and then use that to coerce a guilty plea. It's no wonder that trials by jury are becoming so vanishingly rare that even the Supreme Court has written that "in today’s criminal justice system, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant." 
Do we really want to live in a country where your right to a trial is an empty right?
Edited to add: many people in this thread want to name and shame the individual prosecutor in this case. That is seriously misdirected effort that is not going to solve the systemic problems. It may even exasperate them, as it falsely implies that the problem is with individual overstepping prosecutors rather than a system in which it's the norm.
Approximately 97% of indicted federal defendants plead guilty before trial because of three aspects of our system:
1) US Attorneys routinely routinely overcharge defendants to an almost absurd degree;
2) The most commonly used federal statutes, such as the Wire Fraud statute, are so broadly written that people with no criminal intent could reasonably be found guilty; and
3) The maximum sentences for convictions under these broad statutes are so absurdly high that no one in their right mind would dare risk a trial.
These factors, combined with often merciless prosecutors, add up to a recipe for a potential disaster such as the one we have seen here. The system is very much geared to send to prison anyone that is charged with a crime, based on the system's trust in the concept of prosecutorial discretion. Unfortunately, many prosecutors abuse their discretion, and there is no way to inject uniform sanity into our system as it currently exists. Sadly, the prosecutor in this case likely won't even offer as much as an apology to Aaron's family, as most of them seem to feel justified in their behavior.
No, it actually isn't. You have to look at convictions, acquittals, and dismissals to form an accurate assessment of the outcome of criminal prosecutions. When you factor in dismissals, the conviction rate, whether by a plea of guilty or no contest, or as a result of a trial, drops to 90-91%.
So 97% is "absurd" but 90-91% is well within reason?
Moreover, in many cases the cause of a dismissal is that the prosecutor requested it, e.g. because the entire charge was a farce meant to intimidate the defendant and it by that point had either failed or (more likely) succeeded to do so and no longer needed to be maintained.
What would you prefer it be, 50/50? Would you prefer the US charge more innocent people with crimes to bring down the conviction rate?
If someone is formally charged with a federal felony, that means they have been indicted by a federal Grand Jury; i.e., a majority of the 23 Grand Jurors felt that there is probable cause for charging the defendant(s) with the alleged offense(s). People indicted by Grand Juries should end up getting convicted the vast majority of time, otherwise Grand Juries (and the prosecutors that bring cases before them) aren't serving their function, and their findings of probable cause are erroneous.
I actually don't think a conviction rate of 9 out of 10 is too high; rather, too many things are illegal (and felonious in particular), and the penalties are too severe. But I don't think the actual trial and pretrial systems are irredeemably bad, as many of the posts here are suggesting.
> If someone is formally charged with a federal felony, that means they have been indicted by a federal Grand Jury; i.e., a majority of the 23 Grand Jurors felt that there is probable cause for charging the defendant(s) with the alleged offense(s). People indicted by Grand Juries should end up getting convicted the vast majority of time
This is profoundly ignorant. As a Grand Juror, you will have a mountain of documents dumped on you, alleging or suggesting various crimes. The validity, accuracy, or even meaning of those documents, isn't debated or even examined.
A Grand Jury will indict anyone where the law enforcement officers have done a minimal amount of investigation and have gathered something. The process is there to prevent mass prosecution, in other words, to make sure the government does some minimal amount of work at least.
It does not, in any way, suggest guilt of any sort.
They could present a Grand Jury with documents from another case and not a single Grand Juror would be the wiser. Obviously that would be illegal and grossly inappropriate, but the fact that this could easily be done suggests that the process isn't there to determine any realistic "probable cause" ... just to make sure a minimal amount of work was completed.
>Would you prefer the US charge more innocent people with crimes to bring down the conviction rate?
Don't be ridiculous. What I would prefer is that more of the innocent people who are currently charged not be convicted or coerced into a guilty plea by the prospect of outrageous penalties and soul-crushing legal fees.
>People indicted by Grand Juries should end up getting convicted the vast majority of time, otherwise Grand Juries (and the prosecutors that bring cases before them) aren't serving their function, and their findings of probable cause are erroneous.
It is pretty obviously the case that they fail spectacularly at this function.
"a grand jury would 'indict a ham sandwich,' if that's what you wanted." - New York State Chief Judge Sol Wachtler
And until that changes (if it even can), the conviction rate should not be anywhere near as high as it is.
>too many things are illegal (and felonious in particular), and the penalties are too severe.
> What I would prefer is that more of the innocent people who are currently charged not be convicted or coerced into a guilty plea by the prospect of outrageous penalties and soul-crushing legal fees.
Swartz was guilty. Even Lessig's post decrying Swartz' treatment intimates as much. Again, perhaps the things he did shouldn't have been crimes, or at least not felonies, and the penalties shouldn't have been so severe, but you need to distinguish between innocent people being wrongly prosecuted for things they did not do and bad law making criminals out of good people.
> "a grand jury would 'indict a ham sandwich,' if that's what you wanted." - New York State Chief Judge Sol Wachtler
Judges, prosecutors and legal academics in general exhibit hostility towards juries, grand and petit alike. There are rare exceptions, such as Antonin Scalia. But in general, the legal profession resents the continued involvement of the common man in the judicial process, especially in as crucial a role as pre- and post-trial arbiter of fact.
Whatever perceived defects exist in the grand jury process, such as its secrecy or the absence of the accused, these can be remedied while still keeping intact the basic structure of 23 average citizens making, by majority, a determination of probable cause.
In fact, rather than being part of the problem, if juries were so emboldened, they could mitigate many of the injustices of our system themselves through the use of jury nullification.
>Swartz was guilty. Even Lessig's post decrying Swartz' treatment intimates as much.
I didn't read it as such. I read it as Lessig saying that what prosecutors accused him of doing was a crime, but that Swartz may have informed him of contrary facts in confidence which he was not at liberty to disclose.
Moreover, we don't know that someone is guilty until after they have been convicted, right? Swartz was never convicted (and obviously at this point never will be), so he is innocent until proven guilty.
But your point about distinguishing between guilt under the law and moral culpability is well-taken. I much more strongly care to ensure that the sort of thing Swartz was accused of doing not be illegal than care whether Swartz in actual fact did the thing that I believe should not be illegal.
>In fact, rather than being part of the problem, if juries were so emboldened, they could mitigate many of the injustices of our system themselves through the use of jury nullification.
I don't disagree with that, and it isn't the jury I blame for the outcomes, it's the process. As you mention, the Grand Jury hears from only one side in a sealed proceeding. The outcome of that is entirely predictable. And changing it would be quite welcome, but unless and until we change it, we can't assume that as-implemented it works as the theory says it should, contrary to all available evidence.
It seems pointless to talk about conviction rates in isolation. In a perfect world, prosecutors would bring charges exactly when they had enough evidence to prove that the suspect committed the crime, and they would be found guilty at trial due to that evidence. One could also imagine a horribly imperfect world where prosecutors routinely charge innocents and achieve convictions in every case regardless due to kangaroo courts. In both cases, the conviction rate is 100%, even though one world is great and one is awful.
Without knowing why the rate is what it is, it seems pointless to talk about it at all. A 99% rate could be great, and a 50% rate could be great, depending on why it happens.
Perhaps the triangulation with dismissal rates here is informative -- cases the end in dismissal sound like they are a sizeable portion of those that don't get pled. I don't know the exact numbers in our world, but that number ought to be virtually insignificant in the 'great' world.
The sole purpose of a grand jury is to determine if there is sufficient evidence that a crime may have been commited to justify an expensive investigation, filing charges, or proceeding to trial (depends on the jurisdiction).
The grand jury hearings have no bearing on the determination of guilt, much less on the adequacy of the prosecution's case.
Right - dismissals of some counts often happen as part of a guilty plea.
Still, wording is important: both I and the parent poster should have said 97% was the percentage of convictions which resulted from pleas, not the percentage of indicted defendants which plead guilty. I think taking percentage of convictions is the correct metric to use - given the ideals of innocent until proven guilty and the right to trial, you would hope that most convictions were the result of a trial rather than a vanishingly small (and getting smaller) 3%.
It's also quite telling that even with statistics haggling, the anonymous poster still conceded a whopping 90%.
Including dismissals, I suppose you are in the ballpark. However, are you saying that a 90-91% conviction rate, in a system that publicly claims to offer so many protections to those within its grasp, is a positive thing? Many of our federal courthouses have inscriptions of Blackstone's formulation ("better that ten guilty persons escape than that one innocent suffer"). That is hardly the case in practice in our courts today.
If more people knew about it, do you think "we the people" could reign in out of touch congress critters that write these laws (don't repeal or change them) and the over zealous executive branch (prosecutors and police) that attempt to rack up and level up charges.
The most prominent and continuous use of jury nullification occurred in the American South in the 20th century to nullify murder charges against those who had lynched black people or killed them by burning down their homes and churches.
Didn't change the law in the direction they wanted, and didn't achieve justice either.
I understand that. Isn't that why the Federal government came up with federal "civil right violation" laws to combat this to remove the jury of peers from the immediate locale [of racist jurors]?
Also, one "short coming" of jury nullification is that it doesn't actually nullify the law, just the outcome of individual trials which, yes, can be abused as it was in the South. The precedent it can create, if enough juries nullify similar trials, is reducing over zealous prosecution and prosecutors. So, when a true RICO case comes up the law can appropriately be used. But when RICO is used in a case just to trump up charges, prosecutors will be less apt to pursue if its going to hurt their record of convictions and careers.
What would happen if the 97% of cases that don't go to trial actually were to go to trial? It would seem that the prosecutors wouldn't have the resources to try everyone and would be forced to reduce or drop charges entirely. Not sure if this would be possible, but by coordinating this tactic among all federal defendants could discourage prosecutors from tacking on unnecessary charges.
Perhaps it is the system's fault because it is not set to find the truth, but rather as a sports event between the defender and the prosecutor. Each one does their job and at the end, the winner takes all, whether for right or for wrong.
I have a friend who is a prosecutor and I had heard him talk about his work before. Everything he said was focused on winning. He was proud that he was able to dig out cases from the past where people went free, and then send them to jail. He was proud how good he was at prosecuting people. For all I know, he kept a score.
Is being so driven by the end goal a good thing? Sure it is, when you are prosecuting an actual bad guy. But, as it was my impression from my friend, it didn't really matter to him how bad the guy; all that matters is whether he can win. In that case, the system is at fault for allowing this kind of competition with human lives, but the individuals are at fault for playing the game.
Naming and shaming Carmen M. Ortiz for destroying the life of a young man is exactly what is necessary. She brought 13 felony counts against him for downloading articles that should be freely available, after JSTOR itself had dropped the charges. Destroying her career and seeing her fired in disgrace will send a message to all other overzealous prosecutors, in the same way that she surely thought her prosecution of Swartz would have a "deterrent" effect.
Seeing her dismissed and disgraced is in fact the only thing that will send such a message to such Javerts, as they have disabled the voice of the people by routing around jury trials and they are appointed rather than subject to elections. Carmen M. Ortiz is running for higher office on the backs of high profile prosecutions, and now on the body of Aaron Swartz. It is incumbent upon us to see that she does not get there, that this behavior is NOT rewarded.
Lyons is the first defendant in the U.S. to be charged and
convicted of violating the Unlawful Internet Gambling
Enforcement Act (UIGEA). The statute was enacted by
Congress in 2006 to deter the use of the U.S. banking
system to pay Internet gambling debts incurred by U.S.
Unites [sic] States Attorney Carmen M. Ortiz said,
“Today’s convictions should serve as a message to those
involved with illegal gambling schemes that the government
will apply the full weight of its resources to identify,
investigate and prosecute individuals who seek to profit
from offshore gambling.”
The defendants face up to 20 years in prison on the RICO
charges; five years in prison on the illegal gambling
charges; and two years in prison on the wire act charges.
Lyons also faces three years in prison on the tax charges,
five years in prison on the interstate travel in aid of
racketeering and UIGEA charges and 20 years in prison on
the money laundering charges.Additionally each count also
carries three to five years of supervised release and
fines up to $250,000.
"Today's convictions should serve as a message" over online gambling, which was just made illegal by fiat in 2006 in a rider tacked on to the Dubai Ports World Bill! This woman is routinely involved in travesties of justice related to online activities and thinks this means sending "a message". The Internet needs to send a message back, and force her resignation in disgrace.
The trouble is, if Obama hasn't shut down Guantanomo, let Bradley Manning be held in conditions amounting to torture, et bloody cetera, what in hell makes you think he's going to fire and shame one of his best US Attorneys over a tragic death that she contributed to? It's probably more likely (though not very) that she will resign of her own volition.
The second petition will never be granted. I can say this with certainty because it is legally impossible to grant a pardon when someone has not been convicted (or plead guilty to) a crime to finality (i.e., the exhaustion of appeals).
As with the Enron fellow who died during his appeals, Aaron will never legally be guilty of whatever it was he was specifically charged with because his case was never adjudicated to finality.
It's obviously very important to stay on the bright white side of legal here, as we are dealing with a prosecutorial bully. Emailing her directly is unlikely to produce results and likely to get your name on some kind of terrorist watch list. But going to her superiors and the Boston media to call for her resignation in disgrace over an overzealous prosecution is the right tactic.
Looks pretty senior. Runs the federal government's DOJ office in Massachussetts, with an office of 200 people. By no means the SecDef or anything, but senior enough that serious pressure will need to be brought to bear.
How to do this?
1) Research her past cases and start blogging them/analyzing them. Almost certainly she has a history of extremely aggressive prosecutions. Find any statements from her on this or past cases that are factually inaccurate; highly likely as we are talking about a technical matter where "series of tubes" comments are likely. By the end of this you will have a profile. Perhaps you can show that she disproportionately pursues excessive sentences, or perhaps you can show that she makes technical mistakes about the internet. There are few records that will stand up to deep critical scrutiny. Maybe a bit of statistics to see if she is an outlier relative to other US Attorneys or to her immediate predecessor.
2) Go to LinkedIn. Find your closest contact at the Boston Globe. Work with them to write a story on Ortiz. Tell them they are the only ones that can do it. It is important to actually get a reporter to get Youtube video of Ortiz either answering questions or running from them, as they have much more license to get in the face of a US Attorney. A guy on the street who tries Michael Moore-ing Ortiz with an ambush interview on her way to work is likely to get cuffed for harassing a peace officer or something.
3) Repeat the above step for anyone in Boston with a media credential. A good step is to find anyone who has gotten Ortiz on the record before, e.g. Elizabeth Murphy from the Boston Herald (http://www.mainjustice.com/2013/01/07/mass-u-s-attorney-carm...). Tell them the truth, which is that only the press can hold a prosecutor like this accountable. They need to push for quotes on the record and press conferences, and ask over and over whether she believes her actions were right and her conduct was justified.
4) Determine who her technical superiors are. These are the people in DOJ who are above her on the org chart:
Looks like US Attorneys report to the Deputy Attorney General (James Cole), who reports to the Attorney General (Holder), who reports to Obama. A direct top-down attack is going to be tough as these are national figures.
5) Determine who her political superiors are. This is a much broader list. Everyone from the mayor of Boston to the governor of Massachusetts to both MA Senators to the chair of the MA Democratic party can take a swing here. Those are all players within the MA political establishment that she needs to listen to. Might be obvious, but it's critical (and easy) to make the case to other Democrats, as Swartz was a Democratic activist and this was truly blue-on-blue violence (though Ortiz is hardly a "Democrat" in the sense of mercy and fairness). Undercutting her political support and making her realize she has no more political friends in the world will cause her big problems.
6) Relatedly, go through the press and make a list of everyone who has ever endorsed her in public for anything, from the local Latino/a groups to the people who got her on Obama's shortlist to the local Democratic politicians. Call them up, explain that her overzealous prosecution led to the suicide of a 26 year old computer wizard (and Obama activist!), and ask them on the record whether they will support her for higher office. Ask them whether Ortiz shoudl resign. Blog this, with SEO for the headline: "X declines to support Carmen M. Ortiz for further office." or "Y calls on Carmen M. Ortiz to resign for spurious prosecution of Aaron Swartz."
7) Asymmetric warfare. This one is not illegal, but you would want one of your law school friends who worked in the US Attorney's office or in the press to do it (especially the latter as they will have some immunity). The concept is to interview as many of the 200 people in the MA Attorney's office as possible to determine how many of them feel good about these events, think Ortiz was in the right, or feel like Ortiz has been a good leader. It is quite possible that someone will describe a political or even personal scandal known only to subordinates or immediate associates. An Eliot-Spitzer-Client-9 level scandal uncovered in this fashion would absolutely knock her out of the ring, though it wouldn't be as satisfying as seeing her forced to step down for pursuing this case. But getting Capone for tax evasion is still getting Capone.
8) Swartz's friends. Anyone who has blogged or written about this case is someone who can likely be counted on to amplify the messages above and keep the pressure on.
EDIT: Aha. Looks like this same person went after online gambling under UIGEA to "send a message".
I do like these tactics and... I am in favor of naming and shaming. I think she should be made the poster child for overzealous prosecution of a outdated law.
However, it is a story that could serve a larger purpose than just ruining this woman's career. I would like to this effort put into something more constructive like the decriminalization of copyright infringement. It could be relegated to a civil issue, especially online (versus manufactured goods).
There will be other overzealous prosecutors to replace her, but if the law is changed. It could serve a greater purpose.
You need to understand that US Attorney is a stepping-stone job, especially if she is very vocal in her role. Ego-maniacs like Rudy Giuliani use it to bypass the normal political machinery to get a mayorship, congressional post or cabinet/justice appointment. Others use it as a path to the ultimate job -- lifetime prestige and employment as a Federal judge.
"Naming and shaming" gives her name recognition and boosts her credentials as "tough". Any publicity is good publicity for a politician.
Instead, you and your friends should be asking the Senators and Governor of Massachusetts (aka the gatekeepers to this person's career path) why someone who demonstrates such contempt for the concept of justice is representing the United States government. You should ask President Obama and the Attorney General why their administration tolerates that contempt.
If you want the law changed, you need to attack those who are perpetrating injustice.
Even if there are other overzealous prosecutors in general, getting rid of this one would be an important message. So this is an important step, even in the absence of practically impossible outcomes like decriminalizing copyright infringement.
I don't think that would really do it here. The problem is not (just, or even primarily) the laws against criminal copyright infringement. The problem is the Computer Fraud and Abuse Act, the Wire Act, RICO and the complete set of federal laws passed during the heyday of organized crime that are so broad and with such disproportionately insane penalties that they can be used to put just about any arbitrary subject of Her Majesty the Queen Prosecutor in prison for the rest of their natural lives.
Fixing one statute isn't going to cut it; they'll just keep on at it with the ones remaining. The fix has to be systemic or it's nothing but a band aid on a gunshot wound.
Changing the law is the aim, no doubt, but as with anything, progress is much easier when you're seen as having strength and being on the side of the angels. Having legally and properly dispensed with a conspicuously abusive US Attorney does a tremendous amount to discredit the opposition. And it puts other attorneys on notice that their preferred tactic—hitting people with a raft of charges the freezing or exhausting their assets before a trial—is on the public radar as a deeply illigitimate and almost certainly unconstitutional approach to handling what are, increasingly, political crimes.
I completely agree that we should make every legitimate effort to have this prosecutor removed from her position, along with anyone who uses similar tactics. You have to start somewhere.
My point is simply that this is a systemic problem. We can't have one prosecutor removed and then stop. We have to make this entire model of prosecution illegitimate. It's going to take a sustained, organized movement to make real change.
Which isn't to say it can't be done. It damn well has to be done. But it isn't going to be easy.
That's not how politics works. It's never been how politics works. This is why most people simply ignore Silicon Valley and the Internet when it comes to political issues.
If the likes of 4chan or reddit attack a federal prosecutor personally, all they will do is spur political action against reddit and 4chan. The underlying cause of their action will be ignored and forgotten.
(Note: SOPA is not an exception; major Silicon Valley companies spent serious amounts on lobbying to get that bill dropped. The internet opposition had exactly zero impact on its political fate.)
Key words: "legally" and "properly". In other words, the opposite of what Anon or 4chan could be expected to do.
Identifying the tactics used to effectively strip people of their rights to open trials is the object here. Juries exist specifically to guard against abuses like this. If the DOJ has found a way to make getting in front of one exceedingly risky and certainly ruinous, then they should be called to account for what is a clear subversion of basic Constitutional protections.
We can't get Aaron back. But we can make sure that everyone understands why he found himself in such a desperate situation in spite of having done nothing to warrant the insane penalties he was facing.
I unfortuantley do not know how I would even start doing one, but some comments have data like "97% of all people plead guilty" we could see what the average number of time in Jail is, pull out some quotes.
How much would it cost to run a full-page ad near the front of The New York Times and Boston Globe, and some local tv ads in Boston? A targeted media campaign and the resulting echoes could easily put a stop to any political aspirations (I'm thinking 60 Minutes, Anderson Cooper, and the like).
Unless Anon pursues the course of action outlined above, I strongly suspect they will do more harm than good. Even a hint of illegitimacy on the part of Ortiz's opponents will be exploited ruthlessly. Keeping one's own hands clean is a vitally important part of bringing attention to the dirt that others have on theirs.
I wasn't personally familiar with Aaron, but from what I've read of him, I really don't think he was the type of person who would want everyone to go on a witch hunt the day it's announced he's committed suicide.
So how about you save your emotionally charged call for an internet brigade until everything has settled down, yes?
Great post, and I hope everyone on HN follows your suggestions for bringing this to the attention of the public. But ultimately, it's the law that comes out of the legislative process that not only enables, but prescribes these prosecutions.
Because of this, advocates for reform risk playing right, straight, smack into the hands of the system by resolving to do nothing more than stop one out-of-control public official. Soon enough, others will rise (in fact, they already have). And what will happen when the unlucky victims of malicious prosecutions don't have "the Internet" to back them up? To protect the public at large, the system itself must also be changed.
"Seeing her dismissed and disgraced is in fact the only thing that will send such a message to such Javerts, as they have disabled the voice of the people by routing around jury trials and they are appointed rather than subject to elections."
Could the real cause be that federal criminal statutes are too broad, and often shoved into bills at the last minute or for no good reason, and that mandatory minimum sentences for poorly-defined crimes litter every major piece of legislation to come out of Congress recently?
Before casting blame for malicious prosecutions entirely on prosecutors who are merely enforcing laws passed by Congress, let's look inward at ourselves, and wonder how we could be so stupid as to vote for people whose philosophy it is to write criminal statutes so broad that all justice is left to prosecutorial discretion. It could be argued that it is the American public who are ultimately responsible for malicious, pointless prosecutions.
But that's not the whole story. Currently, the public is totally cool with voting for people who write criminal statutes so broad that falling out of favor with the government can mean prosecutors can jail you for the rest of your life for no reason any empathetic person would agree with. It is also the public that is voting for people who appoint prosecutors incapable of using appropriate discretion.
"It is incumbent upon us to see that she does not get [to higher office], that this behavior is NOT rewarded."
And this is why your post is good and useful. Let's just remember that the legislative process, and therefore voters, are ultimately responsible for the lack of empathy and discretion in our judicial system.
I wish the Bush daughters had quit talking to their dad in the run-up to the Iraq War II. Those two girls maybe could've saved 100K lives. But highly unlikely Bush would've killed himself. His life wouldn't have been inextricably ruined like Aaron's was. He could get his life back just by stopping the run-up.
Regarding Mr. Aaron Swartz, one hopes the Massachusetts Attorney's heavy handed actions will be the subject of a wider broadcast. Certainly, the attention afforded to Mr. Swartz by the DOJ (mind you, MIT long since has lost interest in the case) should now be focused, in the court of public opinion, towards the Honorable Carmen Ortiz and the choice to pursue this case, using extreme measures, leading to answers from a specific inquiry...namely: "Why? Why pursue an individual so harshly?" Insufficient answers from her or her office (apparently she's considering a run for Governor) should immediately result in her receiving administrative action, and the consideration for removal from office and disbarment.
I really can't beleive how naive such people like Mrs. Ortiz are...
Beleiving in fighting for something like a greater good seems to make people pretty ruthless. I really cried for the internet community loosing one of the people who really felt responsable for fighting for the net's freemdom.
I hope some time justice will also spread in judiciary...
From a practical matter a prosecutor might decline to prosecute if they can't get the cooperation of someone (needed to testify or provide evidence) but this should have no bearing on whether to prosecute or not.
You could have a crime committed and the crime is worthy of prosection. The fact that someone believes (as an extreme example) that a person who committed assault against them shouldn't be prosecuted doesn't and shouldn't really matter (keeping in mind of course the practical nature of prosecuting without cooperation). Unless of course they say "no assault occured" which is different then "assault occurred but I don't want anything done".
>but this should have no bearing on whether to prosecute or not.
"We were just following orders" and "We were just doing our jobs" and "We were doing what the law told us to do" aren't the indefensible moral positions you seem to think they are. Laws are written by men and enforced by men. Just the idea that all prosecutors are slaves to these laws is so incredibly naive I almost don't know what to say to you, but I'll try to sum it up:
At best, this was a simple copyright issue that the two parties chose to work out. At worst, this was a white collar crime, and with all white collar crimes, your political capital determines what happens to you. Aaron had no political capital. The support of people like Lessig or Doctorow or the EFF is meaningless in DC. Carmen Ortiz understood this. Now here we are.
> "We were just following orders" and "We were just doing our jobs" and "We were doing what the law told us to do" aren't the indefensible moral positions you seem to think they are.
Careful; that's a double-edged sword. Would you prefer that individual prosecutors have the authority to ignore the law? That didn't work too well in the pre-civil-rights South, when lynchings went unprosecuted.
It's far better to have a government of laws and not a government of men; then you can assign responsibility where it belongs, with the people who write the laws.
>It's far better to have a government of laws and not a government of men
Who do you think decided to tell JSTOR to shove it and prosecute him anyway under a federal computer crimes act? All prosecution is political and white collar crimes doubly so. Men decide to be vindictive, men decide which laws, and the men who prosecute knowing it takes millions of dollars to successful defend from a false accusation from the federal government.
We don't live under laws. We live under men. There's no politically neutral AI calling the shots. Its people trying to get promotions and making names for themselves and who knows what other motivations. The selfless prosecutor exists only in movies and TV.
All prosecution is political and white collar crimes doubly so.
No, all laws are political. Enforcement of the law, especiallly at the federal level, is apolitical. White collar crimes are not special; indeed, white collar crimes are by far the worst types of crimes because they strike directly at the foundation of the system itself (i.e., trust).
There's no politically neutral AI calling the shots.
Exactly. Letting prosecutors pick and choose which statutes they enforce would make prosecution political. This is what happened in the South for 100 years when blacks were prosecuted aggressively and white defendants were not (especially in cases with black victims). It's also the reason why prosecutors at the federal level generally do not have discretionary authority to decide what crimes they will enforce absent a presidential directive or a directive from the head of their agency.
No, no, no. The point of an AG is to act as a first line to determine which cases are worth pursuing and which are not. They absolutely are granted and should exercise frequently the right to not prosecute!
I have had several friends prosecuted for trumped up nonsense that should have been slap-on-the-wrist misdemeanors at the most.
I would prefer to see an AG exercise their privilege to not prosecute in cases where, even assuming the facts in the complaint are true, it is unclear that a crime has been committed. Particularly where there is no individual who has been harmed.
"Tough on Crime" is a messed up way to operate a justice system. "Fair on Crime" should be the standard we hold our officials to.
The United States Attorney, within his/her district, has
plenary authority with regard to federal criminal matters.
This authority is exercised under the supervision and
direction of the Attorney General and his/her delegates.
The statutory duty to prosecute for all offenses against
the United States (28 U.S.C. § 547) carries with it the
authority necessary to perform this duty. The USA is
invested by statute and delegation from the Attorney
General with the broadest discretion in the exercise of
The authority, discretionary power, and responsibilities of
the United States Attorney with relation to criminal
matters encompass without limitation by enumeration the
Investigating suspected or alleged offenses against the
United States, see USAM 9-2.010;
Causing investigations to be conducted by the appropriate
federal law enforcement agencies, see USAM 9-2.010;
Declining prosecution, see USAM 9-2.020;
Authorizing prosecution, see USAM 9-2.030;
Determining the manner of prosecuting and deciding trial
Recommending whether to appeal or not to appeal from an
adverse ruling or decision, see USAM 9-2.170;
Dismissing prosecutions, see USAM 9-2.050; and
Handling civil matters related thereto which are under the
supervision of the Criminal Division.
Having carefully reviewed all of the facts and
circumstances of this matter, as it does in every case
involving firearms-related offenses or any other potential
violation of D.C. law within our criminal jurisdiction, OAG
has determined to exercise its prosecutorial discretion to
decline to bring criminal charges against Mr. Gregory, who
has no criminal record, or any other NBC employee based on
the events associated with the December 23, 2012 broadcast.
It would have been nonsensical to go after Gregory. He only got the benefit of the doubt because he was a DC political journalist who was literally interviewing Obama last week. And it was nonsensical to go after Swartz. But he did not get the benefit of the doubt.
"Just the idea that all prosecutors are slaves to these laws is so incredibly naive I almost don't know what to say to you"
You are implying things that I did not say.
Please quote specifically what I said that gives you the impressions that I am "so incredibly naive". In other words indicate where I said or implied that prosecutors don't have discretion and what that has to do with what I did say which had to do specifically with the person "harmed".
Or, you know, you could just call your local Congressperson and complain. This is far more likely to have a direct impact on her job (performance of, or continued employment) than some random internet "naming and shaming." It is also far more likely to bring about the structural changes necessary to prevent this from happening again.
...as they have disabled the voice of the people by routing around jury trials.
Aaron had the option of going to trial. It was his constitutional right. He chose to kill himself instead.
...and they are appointed rather than subject to elections
The history of the South should provide enough justification for why federal prosecutors are never elected. You do not want enforcement of federal crimes subject to popular whims or to political pressures. Too often, political pressure leads to overzealous enforcement of criminal statutes, not reasoned enforcement (see, e.g., Maricopa County).
> Or, you know, you could just call your local Congressperson and complain.
Isn't that part-and-parcel of naming-and-shaming?
Most of the commenters seem to think that name-and-shame means "write about it on your blog" or "retweet something", I guess. A tweet doesn't get someone fired; calling your local congressperson is definitely the thing to do.
Robert Morris created the first worm on the Internet and was the first person prosecuted under the Computer Fraud and Abuse Act. He was convicted and sentenced to probation. He's now a tenured MIT professor and was a co-founder of Y Combinator.
For someone of Aaron's talent and reputation there is no reason that he could not have gotten past a felony conviction and lived a successful life.
I can only interpret Lessig's post:
"...the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept..."
I don't know what the government actually offered, but it doesn't seem unreasonable that Aaron would have been able to get a deal with a relatively light sentence, maybe just probation. It sounds from Lessig's post like his hangup was that he wasn't willing to accept a felony conviction. I hope that's not the case because even with a felony record he most likely would have lived a long and successful life.
> but it doesn't seem unreasonable that Aaron would have been able to get a deal with a relatively light sentence
Being sentenced and getting a record for doing something you feel is right is not something everybody takes equally lightly. Personally I couldn't care less but I can see how someone with stronger principles would react much stronger to this.
In some jurisdictions (most I believe) felons aren't allowed to vote. If someone believes in democracy and the freedom to vote and have a voice, how do you think they would feel about being so marginalized?
That's a crapshoot. Either they will get the local media to care about it for a day or two, then fizzle, or they will get the local pizza place really pissed off, or someone will do something drastic and a bunch more arrests will start being made.
Getting 4chan to apply the right amount of pressure to the right place seems to be like trying to get an apathetic redneck to remove a tree stump for you. Chances are he's either going to whack it a few times with an axe and declare it unmovable, or blow it up. (To be fair, blowing it up works great, but can get people in trouble rather easily)
It's not just getting her fired, but also the public shaming as an end in itself. Political figures, who are in a position of an incredible amount of power/leverage over the rest of us, need to know that they must do only what "the public" thinks is acceptable and not whatever day-to-day tirade they get off on.
The goal must be to get her fired for abuse of power. Getting the press involved is the only way to accomplish this. Calling a Congressman by itself will only help if done in a huge and coordinated way. That kind of suggestion on its own is a safety valve, the sort of futile thing that people who don't want see justice served would suggest. As for the justification of putting prosecutors beyond elections because of "the South": Reconstruction and Jim Crow have somehow become the excuse for birthing a class of invulnerable prosecutors that threaten a young Jewish kid in Boston with 35 years in jail for downloading some history PDFs! We really licked Jim Crow now, good job! I am sure that burning the democracy to save it makes some sense in some universe, but not this one.
No matter. The fact that this woman cannot be disciplined by electoral measures is what necessitates the use of the Internet and the press:
Actually, I believe that the biggest bee in bin Laden's bonnet was the Americans' use of Saudi territory for military bases. The story of the US withdrawal ( http://en.wikipedia.org/wiki/United_States_withdrawal_from_S... ) reminds me a lot of the resolution of the Cuban missile crisis, where the US quietly agreed to withdraw similar missiles from Turkey and Italy.
To the extent that bin Laden's ultimate goal was to cause severe financial damage to US interests, there's no question but that he succeeded grandly. Sure, 99% of the damage that resulted from 9/11 was self-inflicted by the Bush administration, but the outcome was the same as if bin Laden had destroyed trillions of dollars in US wealth himself.
Ortiz is a generic, replaceable cog in the prosecution-prison complex. She was not "inappropriate", she was doing her job exactly like the American public wanted her to. You could no more end her career over this than you could keep Obama from being reelected. Killing her wouldn't even have any effect—another cog would be slotted into the case before her body was even in the ground. Even blowing up the entire Federal building where she works would be useless, they would just fly in replacements from the hundreds of other offices.
That's the lesson of Timothy McVeigh: if blowing up an entire building full of your opponents has no effect, then writing a stern letter to your Congressman is laughable.
As far as bin Laden being a good role model, he won didn't he? He got inside Washinton, D.C.'s decision loop and systematically turned it against its own interests. Trillions wasted on war, distracted from fixing economic problems, Turkey handed to the mullahs on a silver platter, occupation of ungovernable territories, etc.
First off, the connection between forcing a political firing and committing an act of mass murder is unclear. Why did you pick McVeigh as the metaphor? Why not Osama, or Jared Loghner, or Russia?
Second, that you think calling the poster a "loser" is important is telling. What do you think that will accomplish? Has insulting people ever won them over to your position, in your experience? Or were you banking on everyone's agreement, effectively forcing an internet shaming?
Dang. I meant to say that it was loser-style thinking.
Nobody has ever won against Washington, D.C. by scoring a symbolic personal victory against a few minions. Even if you are like McVeigh and willing to accept a certain degree of collateral damage, it has no effect. It turns out that blowing up a Federal building is the political equivalent of putting itching powder in Uncle Sam's shorts.
So if that is the case, sending an outspoken email is a pre-defeated strategy. It is the action of someone who lost before they started, a loser.
> This is Timothy McVeigh thinking, and it makes you a loser just like it did to McVeigh. You can never kill or destroy enough people to defeat Washington, D.C.
What? McVeigh murdered innocent people. The parent is proposing investigating the prosecutor for breaching the mores and laws that govern her profession using the legal system already in place. These are not exactly equivalent.
I have no interest in defeating Washington, D.C. I have no desire to "win" if "winning" requires me thinking "like Osama Bin Ladin" (or do you mean not thinking? because I think he's dead, last time I checked).
There's no worse fear for a bureaucrat than to be hoisted by their own petard, to face a misconduct investigation, and possibly criminal and civil charges. A lot of harm can be prevented if her public service career is ended early on the count of what she has done to Aaron (and presumably others): I'd rather her career end as an associate in a think-tank (or whatever), rather than as the next Rudy Giuliani (who also started his career as a DA).
I agree naming and shaming is a good idea. It puts a name and a face to the story... not just some nebulous "the system is broken." People need a narrative to humanize the situation and it can serve as a warning to other prosecutors.
Yes...as much as hacker-minded people want to think that it's about the data (which I won't argue that it isn't), things happen because of individual stories.
Rosa Parks was not the first person to be denied a seat on a bus. The mishandling of rape cases has been a problem in India for a long time and it took the tragic case of the (so far, anonymous) woman who was brutally gang-raped to spur international furor. And think of the numerous laws named after victims...Megan, and so forth
I was actually thinking about Rosa Parks when I made that comment. The reason that Rosa Parks became a well known civil rights figure was because she was well known and liked, not because she was the first... Just like Aaron
Which just adds to the tragedy of all this. I think Aaron is someone the tech and non-tech community could have backed together, for any reasonable civic cause. His name is already attached to Reddit and all of his other accomplishments make him as much a non-consumer-facing media tech darling as you could hope for.
Federal prosecutors are appointed, not elected, which makes the effort to name and shame them even more tenuous. Trying to fight the culture of overzealous prosecution as a whole would make it more likely that the elected official who appoints them (the president) does a better job.
I can imagine and believe that defending yourself against the US government is costly, what I don't understand is what the breakdown of all expenses would look like.
What services do you need to purchase/hire that you wouldn't get in a normal court case?
Is it because you spend a lot more time in court or in preparation?
Do you need to choose among lawyers with special certification? What type of paperwork do you need to produce?
In the Latin America (where I am) I could easily see the biggest expenses being bribes and it is in general what I think of when you need a problem solved. (Not a good thing at all...)
P.S. Making an infographic about a case like this vs a regular court case would be an interesting project and could help us make the case for Aaron...anyone want to help by looking for data / making one on your own?
> many people in this thread want to name and shame the individual prosecutor in this case. That is seriously misdirected effort that is not going to solve the systemic problems. It may even exasperate them, as it falsely implies that the problem is with individual overstepping prosecutors rather than a system in which it's the norm.
There's a good essay on exactly that point, descriptively entitled "Fix the machine, not the person". Written by... Aaron Swartz.
Yes, I agree with this, having been the subject of unreasonable scrutiny in the past myself and having had friends who have similarly been abused by the "justice" system.
This kind of thing is far too common. The prosecution may be allowed to presume guilt, fine. But the law should prevent an overzealous prosecutor from rendering moot the 5th, 6th, 7th, and 8th amendments (not that I'm a constitutional scholar, just applying the "common sense" rule here).
Seizing assets is wrong in 99% of cases, and eliminates the right to mount an effective defense. It is morally bankrupt.
"Making an example" of someone is complete garbage. That is not justice, it is cruel and unusual punishment. It seems to more often be used by DA's with political aspirations than for legitimately egregious crimes.
This is why I vote against anyone who lists "tough on crime" as a credential. It's not. "Fair on crime" is a virtue, "tough on crime" is bullying and an abrogation of justice. Citizens should have an expectation that punishments for doing something wrong will suit the offense. Anything otherwise is a violation of the 8th amendment.
If there is doubt over whether or not an action is even a crime, a DA should be using their discretion to NOT prosecute. When the "victims" of a "crime" don't even want to press charges, you have to question the motives of a DA that pursues the case anyway.
I agree, we should be careful not to confuse justice with vengeance and focus on the root cause by improving the framework so that this kind of behavior by prosecutors is simply not possible. “An eye for an eye will only make the whole world blind.” MG.
What will we say if this prosecutor commits suicide next week?
unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge
This is such a disgusting violation of power it makes me want to vomit blood. Why on earth do judges have the right to prevent people from appealing to the court of public opinion? That's immoral, abusive, and absurd. If people can't disclose what is happening to them, then abuses of power become frequent.
I'm reminded of a saying, "the strong do what they can and the weak suffer what they must." Well, "..what they must" is a strong phrase, but you get the idea. The general population isn't bothered about these kind of issues. The best they can do, if they notice an issue, is post their views on internet or express some strong views to their friends. If we need to clean shit, we need to go to the top and change it. Sadly I too don't see this happen anytime soon.