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.
The wording of the petition should be as strong as possible. I'm off with my children now, but if I get back tonight and I see a decent petition on this, I will definitely sign it.
Edit: D'oh, the petition has already been written. I just had to sign it.
And a second petition to pardon Aaron:
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.
http://en.wikisource.org/wiki/Proclamation_4311 is a famous example disproving that.
0) Start with background:
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".
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.
"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.
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.
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.
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.)
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 still like the idea of doing something bigger to help keep this situation from happening again.
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.
I posted abt it here http://news.ycombinator.com/item?id=5048729
and the types of question we would need to figure out relating to court costs and things like that.
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".
"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.
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.
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.
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.
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.
It's also the reason why prosecutors at the federal level
generally do not have discretionary authority
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.
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.
Pull the other one now.
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".
So how about you save your emotionally charged call for an internet brigade until everything has settled down, yes?
What I do know is that the issue is larger than Aaron himself.
And what part of forcing a single attorney out of her job is "greater change"? What part of that is being "proud"?
Hey guys! You might be effective if you do this now, so don't do it! Wait for no one to care before you start trying!
Agreed. She should lose her friends and family too, if they are good people. They should drop her out of their lives.
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 hope some time justice will also spread in judiciary...
...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).
No matter. The fact that this woman cannot be disciplined by electoral measures is what necessitates the use of the Internet and the press:
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.
It was not a real option. He had run out of money for an expensive, complex case. He was sure to lose.
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.
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.
Almost certainly zero impact for this. Easily ignored. The prosecutor in this case, however, probably could not easily ignore her friends and family dumping her.
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)
You talk to her friends and family about her, and you'll just make her a hero in their eyes, the same way Aaron's actions made him a hero to reddit and 4chan.
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.
To win you have to think like Osama bin Laden: turn the system against itself. Wholesale, not retail. Scale up, not one off. TSA, not EFF.
It's appalling that your criticism of Timothy McVeigh is that he wasn't enough like Osama bin Laden. Do you really think either one of these should serve as a model?
(Shrug) bin Laden got shit done. McVeigh did not.
They both ended up exactly where they deserved, but you can't ignore the fact that one of them was an effective political strategist while the other one was nothing but a plain old mass murderer.
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.
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.
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?
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.
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).