Even if that was the case, penalties should be suggested proportionally to the crime -- not inflated to scare people.
For one, an inflated penalty makes the person more likely to want to avoid trial and take a plea bargain EVEN if he is innocent. "Should I risk 13 years with a trial or go for 2 years?".
Second, the role of the prosecutor is not to scare people and score points, it's to try to punish a crime appropriately.
Third, the inflated penalty also changes the perception of the judge and the jury, and makes them more likely to take the case as more serious than it is. E.g something that should actually be punished with something like 6 month probation, when inflated to a "13 years in jail" scare, can appear much more serious (and the offender much more dangerous) to the jury.
Who is more likely to be punished with, say, 6 years in jail? Someone for which the prosecutor suggested a 13 year penalty, or someone for which the prosecutor suggested 2 years?
Yeah, if the real "deserved penalty" is 6 months probation, starting at 13 years anchors that number in people's heads, and the sympathetic jury will feel great for only giving him 1 year in prison, when that is a sentence double in length and immeasurably worse in magnitude compared to the deserved penalty.
You know what else people should learn in school? how to recognize a bullshit news article on a site that traffics in conspiracy theories.
Judge the article by itself, not by what else the site that has it might show. Not to mention the obvious fact that you can find independent confirmations of the same story elsewhere.
Except if you believe the story in the article is a conspiracy theory itself.
Like, you know, the "conspiracy theory" about Aaron Swartz, who committed suicide after facing a disgusting case of "prosecutorial discretion"?
Or tons of people who were "made an example" or used as a stepping ladder for a political career by some prosecutor?
The quality of stories on the site are a very good indicator of the low editorial standards there.
Not to mention the obvious fact that you can find independent confirmations of the same story elsewhere.
No, it's all just reprints of the same RT article (and RT is well known for poor journalism). This is called churnalism: http://en.wikipedia.org/wiki/Churnalism
The story itself is flawed because it misleads its readers. It doesn't include any fact-checking on California law, any link to the case, or any kind of meaningful context, like why the judge would have (correctly and appropriately) told Olson's attorney not to bring up the first amendment to the jury - because trial juries are finders of fact, not arbiters of law, and the first amendment does not confer a right to damage or destruction of other people's property, so it wasn't a valid defense.
We have a common law legal system in America. Legal questions are decided by judges (whose decisions can be appealed) and factual questions are decided by juries. A responsibly reported article would have explained why Olson's attorney had no business trying to make a first amendment argument to a jury: the law in America does not work that way, it has never worked that way, and Olson's lawyer could never have passed the bar if he actually thought it worked that way.
Bullshit. He was facing a 6 month sentence, a very light penalty for actions that were obviously illegal and which he knew to be illegal. I don't know why Swartz killed himself and neither do you.
You want to a story about bad prosecutors and injustice? Try this one: http://www.law.cornell.edu/supct/html/09-571.ZO.html
First, who excluded death penalty cases from this discussion?
Second, the jury still determines if the accused is guilty or not. A prosecutor asking for a huge penalty can (and will tend to) sway them to think the accused as "more guilty".
After all, "he wouldn't ask for such a high penalty if the guy was all innocent", they'd think (that they could be advised not to judge by that is BS too).
What you did here, is you've taken several pedantic technicalities on this thread and run with them as far as you can.
This technique, and such contempt to the actual spirit of the law and justice (the issues under discussion), makes one assume that you are a lawyer or something close.
And it seems all of our institutions are suffering from a crisis of legitimacy.
Our justices care not for justice; our law makers are so bought and paid for they should be logo'd up like race cars, and the executive branch... has become everything it said it would fight against during the campaign.
When what's left of the middle class begins to defect from the norms that keep society intact; what then?
Do we flee to the countryside and try to take up farming while being hunted by the landowners drones?
Die in cities torn by strife and insurrection?
Live in fear of debt collectors who can turn any life upside down with an impossible to fight "computer error" not in your favor?
Never underestimate the potential of society to quickly disintegrate under the right conditions. And I'd argue that the US, with 10% of the people suffering greatly, 10% astounded and shocked, and 80% paying no attention whatsoever, while our "leaders" lead us to slaughter, is at high risk for significant civil strife.
More like news stories like this are corrosive to the credibility of the media.
The anti-intellectualism of HN on "Your Rights Online" stories is galling. On threads like these, people often seem to want to be told things that confirm their biases, and get angry when new facts are introduced. You just called 'anigbrowl (of all people) "worse than a troll". You should be embarrassed. But you're not, because the most vocal people on the thread agree with you. In other words, you're a bully. Go to hell.
I'm nearly 40. I don't "troll". I tell it like I see it, whether you agree with it or not. Believe it or not, there ARE people with legitimate totally different opinions than yours or his. To the point that they see the "legalism" expressed in his comments as not only absurd but also insulting to the very notion of justice.
I also find the "trolling" accusations immature and idiotic -- they belong to discussions between teenagers.
I never assume anybody is trolling, just because I don't like their viewpoints -- which is something some people on the internet do a lot. Perhaps the net is the only place where they learned to discuss. Because in actual face to face discussions nobody calls the other a "troll".
>The anti-intellectualism of HN on "Your Rights Online" stories is galling.
What "anti-intellectualism"? I, for one, am all for Kant, Hegel, Plato and their ilk. Up to good ole Teddy Adorno, Christopher Lasch and George Steiner.
Disagreeing with letter-of-the-law interpretations is not anti-intellectualism. If anything, it's the opposite. It goes contrary to the mechanistic, by-the-books justification of the status quo.
>You just called 'anigbrowl (of all people) "worse than a troll". You should be embarrassed. But you're not, because the most vocal people on the thread agree with you. In other words, you're a bully. Go to hell.
You tell me that "I should be embarrassed" and I should "go to hell" and It's me who is the "bully"? Who the fuck do you think you are?
I called anigbrowl "worse than a troll" in the context of the conversation, in that he was a "pedant". One (troll) is a BS accusation, the other (pedant) is something that seriously screws discussions by focusing on inconsequential details.
You also conveniently sidestepped anigbrowl's constant condescending and mocking comments to me and other commenters in this thread.
Perhaps you identify with such abuse, and his stance of the "wise man, who has to educate the ignorant masses". It's, after all, what you do all the time too.
Before all the NSA leaks you told people, time and again, how it's totally implausible and conspiracy theory to believe they do those kind of things. And mocked them with a "wiser than thou" stance.
You consistently come out as a cold-war patriotic bigot who accepts the official government line hook-line and sinker.
Just a week or so ago, in the thread about Hastings, you mocked people considered a possible foul play on his death, dismissing them as conspiracy freaks, and adding condescendingly that "I only encouraged them".
Then, a few days later, the laters of Hastings with relation to FBI chasing him hit the press.
And we also got this tibbit:
>Former U.S. National Coordinator for Security, Infrastructure Protection, and Counter-terrorism Richard Clarke told The Huffington Post that what is known about the single-vehicle crash is "consistent with a car cyber attack." Clarke said, "There is reason to believe that intelligence agencies for major powers" -- including the United States -- know how to remotely seize control of a car. "What has been revealed as a result of some research at universities is that it's relatively easy to hack your way into the control system of a car, and to do such things as cause acceleration when the driver doesn't want acceleration, to throw on the brakes when the driver doesn't want the brakes on, to launch an air bag," Clarke told The Huffington Post. "You can do some really highly destructive things now, through hacking a car, and it's not that hard." "So if there were a cyber attack on the car -- and I'm not saying there was," Clarke added, "I think whoever did it would probably get away with it."
Hindsight's a bitch, right?
Except I don't think they're inconsequential at all, but rather key to understanding why this story is a crock. You started out in this thread with a pre-emptive finger-wagging rant; my suggestion is that you shouldn't dish out criticism if you can't take it.
As for your example of Hastings, the possibility of a conspiracy isn't evidence of a conspiracy. You don't appear to understand the difference.
Excuse me, I'm the one that can't take criticism? You came with guns blazing against everyone with an opposite opinion (ignorants, etc), focusing on the technicalities but never addressing the larger picture. You even invoked reasons about why the piece should never even be posted (the news outlet violates HN quality criteria, and such), and you even wrote that I should not even be allowed to make an initial comment (in your words, a "pre-emptive rant"). Perhaps you think your criticism is the only valid one, and everything else is the ramblings of idiots.
>As for your example of Hastings, the possibility of a conspiracy isn't evidence of a conspiracy. You don't appear to understand the difference.
I never said it was "evidence". I just said it was an indication -- instead of openly mocking everyone even considering it.
How about the constraint not to put things in my mouth?
I'm also of the opinion that in real life (as opposed to government issued statements), the context, motive and feasibility (not to mention past track record), are good enough to seriously consider the possibility. People expecting "evidence" of such things are naive in the way governments work -- a study in anti-activist and anti-dissident history will give them tons of examples of shameless power abuse by such agencies, from dealing drugs to support Contras, to openly killing dissidents.
A 2 line response. So classy.
1) It avoids discussing any particulars of what I said. You're so above that.
2) It repeats the BS accusation of me being a bully. Now, wouldn't me being "a bully" require that I somehow have a "lot of power" over someone and harass him with that? What kind of power would that be? The "power" of writing my opinion?
It's ludicrous, tptacek , THE top HN dog (and, I dunno, somebody with hell-banning powers) accusing someone else of being "a bully". For all I know, my account could be killed for speaking my mind against your opinion. You can't say the same about me.
3) It adds a new strawman, that I "equate you with the NSA". I only said you are a sucker for the government party line. Not that you're NSA or do it on purpose.
4) The "long wall of text" accusation. People use it when somebody responds in detail, to casually dismiss him as a rambling lunatic. (Of course your own "walls of text" in other comment threads are just detailed responses, nothing bad with them.). Subtle.
That's the theory. Now look at any prosecutor and tell me he/she does not try to score points.
What the fuck does that even mean?
Should the poster of an article not add his opinions on the article he posted?
I posted it because I found it interesting. Including interesting enough to comment on.
>Why bring it up here? We've already hashed out this entire discussion, as you can see in my other comment that you've downvoted.
Huh? I didn't downvote anything. In fact, when I left this thread, mine was still the only comment. I just come back and was pleasantly surprised to see 9 more comments added. Paranoid much?
Finally HN guidelines are that you should be selective about the quality of your submission; 'topinfopost.com' is a news aggregator (bad) that's chock full of conspiracy theories (worse). Other front page store is include photographs of ghosts and that the civil war in Syria is a Zionist plot. Seriously? This is your idea of a reliable news source? Stop wasting our time with this bullshit. The maximum penalty for vandalism in California (which is what this case is about) is 3 years. It isn't possible to get a 13 year sentence for vandalism in California. In fact, since the defendant has no previous convictions for vandalism that I'm aware of I'm pretty sure the maximum penalty that can be imposed under CA law (CA PC 640.5/6) is community service and a $1000 fine.
Says who? Because, if anything, HN users seem to agreed with and voted for my comment (or "rant").
>Finally HN guidelines are that you should be selective about the quality of your submission; 'topinfopost.com' is a news aggregator (bad) that's chock full of conspiracy theories (worse). Other front page store is include photographs of ghosts and that the civil war in Syria is a Zionist plot. Seriously? This is your idea of a reliable news source?
I don't follow topinfopost, and could not care less what else it has on it, as long as the story I submitted is OK. Which is. You can corroborate it in other, no conspiracy outlets.
Not to mention that some of the very same issues emerged in the well known Aaron Swartz case -- and your arguments here are so generic that they also trivialise that instance of prosecutorial abuse.
>Stop wasting our time with this bullshit. The maximum penalty for vandalism in California (which is what this case is about) is 3 years. It isn't possible to get a 13 year sentence for vandalism in California.
Which is beside the point. You shouldn't be threatened with outrageous charges in the first place, no matter what you will actually get.
He isn't being threatened with outrageous charges. There is a law against graffiti , the prosecutor claims to have evidence that he broke it repeatedly, and he's being charged with that.
What are you outraged about? That he's being charged for writing it on the sidewalk? Sorry, in CA the sidewalk is considered the property of the building owner, who is also responsible for its upkeep. That he wrote it in chalk? chalk still needs cleaning up, but since the effort involved in down that is actually trivial his sentence will be adjusted accordingly. That he is being charged with 13 counts? Well it seems he went and wrote his messages critical of the bank at least that many times during a 6 month period.
Is it bad that the prosecutor is wasting time on what is essentially a frivolous case? Yes. Is there any risk the guy is actually going to jail for 13 years? No.
But also making a more general point against those kind of threats.
How am I not getting it?
How can you even say that in court and retain your position as a judge?
I am not a lawyer, but if the judge was wrong that the First Amendment is not relevant to the crime and the law Olson is being charged under, then the defendant should be able to make that case in appeal (i.e. that the defendant was guilty of the crime, but that it is unconstitutional for this to be a crime).
It is someone of a legal philosophy debate: is the role of a jury simply to return a verdict of guilty or not guilty, or does the jury have the right to decide on the law itself?
In modern legal practice in the US, the law itself is not argued before the jury. What the judge seems to be doing here seems to be standard legal practice.
Circumventing the 5th amendment by granting immunity then imposing contempt of court.
Sounds like great grounds for appeal.
E.g. in this case the accusation is that Olson vandalized BoA for 6 months, causing the bank to have to continually pay to have the chalk cleaned off and risking further property damage.
Olson has a free speech right to protest, but that does not mean that he can unilaterally choose means that infringe on the rights of others.
You are right that foreclosing the issue may make great grounds for an appeal though, it's possible an appeal court could rule that the First Amendment is relevant and cause the case to be re-tried.
To not even be able to reference his right to free speech, if it's upheld I'm quite worried.
If his right to free speech is indeed being violated by applying the law, then modern legal practice does not consider this to be an issue for the jury itself to consider (it is considered in a separate manner, by the judge and by appeal).
In both circumstances, participants must follow the speaking rules or be subject to penalties of various sorts (contempt of court, censure, etc).
Attempting to utilize 1st amendment rights in order to bypass those procedures seems like the wrong approach. A more logical avenue might be appeal based on the 6th Amendment right to a fair trial and/or due process arguments.
There are certainly cases of vandalism of private property where it may even be an issue (if the property involved was owned by people acting as agents of the state/federal government, etc), but this isn't one of them.
Honestly, the fact that this question is being asked repeatedly proves the judge's point: People don't understand where and when the first amendment applies, and where it clearly doesn't, the only possible outcome is to confuse the jury.
Under the American judicial system, juries are often the trier of fact when they serve in a trial. In other words, it is their job to sort through disputed accounts presented in evidence. The judge decides questions of law, meaning he or she decides how the law applies to a given set of facts.
The jury instructions provide something of a flow chart on what verdict jurors should deliver based on what they determine to be true.
Often they are much more complex, although certain elements frequently recur. For instance, if a criminal defendant chooses not to testify, the jury will be often be instructed not to draw any negative conclusions from that decision.
Summary: There's really no chance the dude's going to get all 13 years strung out. Hyperbolic writing at best. It's not a free speech issue because he wrote it on private property.
It's a classic example of America's aggressive police state in action. One year for this crime would also be outrageous.
1. This is a graffiti case where the defendant is alleged to have engaged in the conduct on 13 different occasions. The trial judge has already held that, under California law, it is still graffiti even if the material can be removed with water. Most graffiti can be removed. Also, the judge and a different pre-trial judge held that the First Amendment is not a defense to vandalism/graffiti.
2. The defense is trying to make this case into a political statement, which it is not. This is just one of some 20,000 criminal cases that are referred to us annually by the police department. We have prosecutors who decide whether to issue cases. They are professionals. The City Attorney was not involved in deciding whether to issue this case as is typical practice in prosecution offices for most cases. He hadn't heard of this case until it was in the media.
3. The defense is whipping up hysteria about the prospect of 13 years in custody. This is not a 13 year custody case. It is a standard graffiti case compounded by the fact that the defendant is alleged to have done it on 13 separate occasions. Because there were 13 different occasions when the defendant allegedly engaged in the conduct, the law requires them to be set out separately in the complaint. This increases the maximum sentence, but it still is a graffiti case and nothing more. The courts routinely hear graffiti cases and handle them appropriately using judicial discretion.
4. It is not unusual for victims to contact police or prosecutors about a case. Our prosecutors are trained to focus only on their ethical standards in deciding whether to file a case.
5. We prosecute vandalism and theft cases regardless of who the perpetrator or victim might be. We don't decide, for example, based upon whether we like or dislike banks. That would be wrong under the law and such a practice by law enforcement would change our society in very damaging ways.
Did you ever walk up someone's driveway and scribble on their house?
Chalk can stain the side of a building if repeatedly used in the same place. Washing the building will reduce the chalk to a faint smudge, but restoring the side of the building to its original state before the offending still requires repainting/resurfacing in the same way cleaning spraypaint would.
In regards to limiting the use of the First Amendment - the right of the defendant to express his views have not been violated. The First Amendment has nothing to do with the vandalism charges he faces. He could have expressed his views over a medium that wasn't illegal, allowing him to defend himself via the First Amendment, but then he wouldn't have a need for defence, would he?
From one of anigbrowl's comments on here:
The maximum penalty for vandalism in California (which is what this case is about) is 3 years. It isn't possible to get a 13 year sentence for vandalism in California. In fact, since the defendant has no previous convictions for vandalism that I'm aware of I'm pretty sure the maximum penalty that can be imposed under CA law (CA PC 640.5/6) is community service and a $1000 fine.
"In fact, since the defendant has no previous convictions for vandalism that I'm aware of I'm pretty sure the maximum penalty that can be imposed under CA law (CA PC 640.5/6) is community service and a $1000 fine."
seems to imply that at least in this case it is slightly more than "just arithmetic".
This is a human we're talking about, too. Arithmetic, bleh.. speaking of that, if society gets to pay for the ill-meant fuckups of banks, why can't it pay for the well-meant fuckups of individuals?
Who would even mention 13 years, even as a joke, in this context? I think that's my question. I understand that such idle threats are used to get people to give in without trial, and that's bad enough, but in this case, I still can't fathom someone saying or writing it with a straight face. Without stopping to think for a second. That it would not actually come to such a punishment is a small, but not sufficient consolation for me, I'm still puzzled.
A lawyer, to drum up sympathetic media coverage for his client (and increase his own public profile).
a reporter, to get eyeballs on a story.
Seriously, just because you read it on a news site does not mean it is true.
It also means it doesn't, so I don't see your point?
Aaaaand: a prosecutor, to intimidate. Just because you leave out an option doesn't mean it's not one.
I've been caught by cops twice with chalk. In Berlin I drew a silly heart flying above clouds. at night while talking on the phone and paying zero attention to anything else for like an hour, as somone taps me on the shoulder and says "don't be scared, plainclothes police". I told them what it was and that it was chalk, one tested it with his finger, and then when I took a photo of it he even said "oops sorry" for having smeared it a little before I could take that photo. Friendly doesn't even come close to describe it, it was unreal. They said I should wash it off, because if it was still there the next day, the owner might complain to them and then they would have to act. They also asked why I did it, I truthfully answered "heartache", they wished me good luck and we parted with ^_^ faces.
The second time was in South Germany, in a rather rich little town, where I basically attempted to fill out with chalk a red heart outline someone else had sprayed there (onto a the wall of a small bank, too). They were all "well well well, look what we have here", and even took my chalk to "send it to the state attorney's office for analysis". But 1-2 hours later they called me up and asked the same thing the Berlin cops asked of me: just wash it off and it never happened. I guess they realized that in this case it just wasn't worth the paper work, or needlessly mean - but their first instinct was of the stereotypical bored police who found someone they could have authority over.
And to think, I actually tried to encourage others, for a while I was convinced everybody should carry chalk with them and paint little things everywhere. Oh well, don't try this in police states I guess. Oh, I know, people like to say it's not their decision, it's the law, yadda-yadda, but that's just not true:
Criminals do not die by the hands of the law. They die by the hands of other men. --- George Bernard Shaw
The same goes for rather innocent people, and prison or fines instead of death. Saying it's okay per definition because it's on the law books doesn't make it okay, it makes you a you-know-what.
Most of the outrage porn that gets posted to HN is very poorly founded in fact.
I'm not arguing for the prosecution here. I'm arguing for the inclusion of relevant context in news reporting, and for people to engage their critical faculties in discussions of legal issues.
Don't rely on drive-by one-liners that point out some random point at best to be anything but transparent. If you have any additional facts, what are they? If you don't, what is this?
I made experiences with chalk and cops that have actual criminals to catch, and cops that have big fat property and malls to patrol. Anecdotal, yes, random, maybe, but still mostly for those who get the point, or have experiences of their own to contribute; anything more than just cheap shots from cheap seats to stifle discussion you don't like to see others having.
What legal claims did I even make? What exactly is that supposed to be a response to?
This previous case will tell you exactly where he stands on those "hippie types" he despises.
This man is an affront to justice.
Now, I have got up in front of a city planning commission to advocate for medical marijuana clinics (which were subsequently approved). I'm heartily in favor of medical marijuana. But if you have an amount of marijuana growing on your property that exceeds the amount you are allowed to grow for medical purposes, then you can't rely on the medical defense as a matter of law. That's why smart marijuana growers take the advice of their lawyers and establish a growing cooperative which allows them to pool their legal growing allocation in a shared facility.
There are rules about how much pot you can grow for medical purposes, just like there are rules about how you can sell alcohol and tobacco. If you ignore those rules then you're liable to get fined or even jailed. You can't break the rules and then invoke those same rules as part of your defense - this is criminal law 101.
Rather than him being an affront to justice, it's you who have no understanding of how criminal law operates.
The appropriate punishment would have been to force him to clean the chalk off.
That's also the appropriate punishment for any vandalism. A written apology and reparations for the vandalized property.
What I don't agree with is the idea that using chalk makes it "not vandalism" -- it still is vandalism. The punishment is absurd, though. Obviously BOA has heavy influence over the authorities in this case.
So, yes, the constitution applies only when permitted by it's own words.