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.
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.
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.
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.
On this we agree.
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.
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.
He may have been guilty of something. It sounds like the charges against him were at the very least trumped up far beyond what would have been reasonable for the actions he is known to have taken.
The grand jury hearings have no bearing on the determination of guilt, much less on the adequacy of the prosecution's case.