Slashdot Mirror
After Aaron Swartz's Death, the Focus Now Falls On the Prosecutors
Marcion writes "Journalists and commentators are now questioning the role of Massachusetts prosecutors Carmen Ortiz and Stephen Heymann in the suicide of Aaron Swartz and whether they levied disproportionate charges in order to boost their own political profiles, despite being warned he was a suicide risk. Meanwhile White House petitions to remove Ortiz and Heymann have already received tens of thousands of signatures. Should these prosecutors be investigated for their actions regarding Swartz?"
Wow. From what you're saying, you really know absolutely nothing about this story at all, do you?
Whether the person is a suicide risk should not be a factor in the charges that are brought.
Focusing on those two (whose behavior does indeed seem pretty despicable) is going to accomplish very little in the long term. Instead, lets revamp some of the fundamentals of our so-called Justice System. Stop letting prosecutors pick and choose who to charge at their own whim, with little to zero oversight. Punish prosecutors who bring charges in bad faith. End the system of plea-bargains and return to the jury trials that are supposed to be the core of our criminal law.
Putting the actual tragedy aside; it's great that people are talking about the bully tactics from US prosecution. However people need to understand that this probably is fairly systemic with a system that cares about results more than it cares about justice. It's great that people are discussing the subject, but making an example of two of the players is just a cheap trick that stops people taking a long and hard look at the game thats being played.
Let's not use the unknowables of the suicide in a rush to judgement. Let's wind back the clock to the day before Aaron killed himself and ask a very simple question: WTF?! As so many have already pointed out, there are so many individuals involved in so many schemes that have had REAL NEGATIVE CONSEQUENCES that it is just unimaginable that they would have prioritized this case as they had, and that they would be threatening to lock up somebody whose actions were much more like civil disobedience than criminal mischief, and even less like criminal behavior.
When prosecutors prioritize cases based on their ability to really trounce the little guy, rather than to take down the big guy, we have a problem and need a new batch of prosecutors. Aaron's suicide, if it was related, only makes this case the more tragic, but no less relevant.
Well, even though he was young at 26, he was facing 35 years in prison. So he would have possibly gotten out when he was 61, maybe earlier with good behavior, but who knows.
options:
a) End your life at 26, you'll be remembered well by your accomplishments and won't have to suffer.
b) A stressful slog through a court case that will leave you in jail for a very long time. In jail the boredom is broken periodically by suffering. If you survive jail, you'll get out, when you're elderly, and then maybe you'll be able to re-acclimate to society after you've spent more than half your life a prisoner.
The main issue is that the prosecutor was an asshole bully and threatened Swartz with 35 years in the big house for downloading publicly-funded scientific articles, and proceeded full speed ahead even after JSTOR asked them to drop it. There was no prosecutorial discretion -- they were threatening to throw the book at him for what was at best a trespassing misdemeanor. Those are the actions of a compassion-less psychopath, and I for one don't think anyone like that deserves to be a Federal prosecutor. We deserve better. So to a certain extent, Swartz's suicide is a completely separate issue.
It's a material fact about our criminal justice system that prosecutors put people they know to be innocent away for life. Check out the Innocence Project for the grotesque details.
The reason I bring that up is because it dramatically illustrates the power and fearlessness of ever being called to account that all DAs have. The immunity from any fear of prosecution of their own crimes basically puts them above the law- a fact that doesn't go unnoticed by them. They can literally do anything they want no matter how unbalanced or depraved so long as they can dress it up as prosecutorial "zeal".. They know that the general population doesn't track on the details of cases and ALL families of accused say their prosecution is unjust , so that doesn't matter either. They can do whatever they want, however they want for any reason they want. They suppress exculpatory evidence as a matter of course- basically they play the role of good ole' Buford T Justice where they decide who's guilty and create through whatever means necessary the evidence to prove it.
Try being a minority caught in the clutches of our system. Why do you think so many poor African Americans are so totally checked out, fatalistic, knowing and cynical when it comes to matters of criminal justice? Because they know no one cares if they see anything like justice or not and that there is no real justice or just cause , there's "just us" and "just cuz" for them.
So Aaron got caught in THAT system and the video of him attempting to hide his face with a bike helmet enraged and incensed one of these DAs who had the full cooperation of the sociopaths in the upper administration of MIT.
It's a good reason to never convict / indict anyone for anything that might lead to jail. Jail is basically sado-hell where society throws people it's mad at without a shred or a care about what happens to them in there or when they get out either.
The only people you should ever indict or convict are very violent people who just cannot control themselves and will surely re-offend the first chance they get. Everyone else should walk.
As a side note, it's a fact also that they won't put scientists or programmers on juries because they are too good at thinking up potentially exculpatory alternative hypothesis and more immune to DAs wide-eyed narratives of moral outrage strung together with circumstantial doo-dads and character assassination. Juries are largely composed of retirees and gung ho Law and Order fans.
Just the threat of jail surely turned Aaron around a long time ago. Did that DA give a shit? Oh fuck no- he's bucking for bigger office, a better job, maybe political office. Anyone who puts a bike helmet over his face knows he (age what??? 24?) is doing something naughty , and now, as Lessig said, "we get to nuke you. "
No indictments. No convictions. Not until things change in this fucking country. Fuck you Conn. Fuck you asshole DAs. Too bad you need us to rubber stamp your dirty work before you can kill again. Denied. Denied denied denied denied. Fuck you.
People have a tendency to behave in ways that give them the most recognition, whether that recognition is stature, monetary reward or both.
For whatever reason prosecutors seem to be rewarded based on a win percentage, which is objective, vs. a justice served percentage which is subjective. Combine this reward system with an overcrowded judicial system and we end up with a bastardized incentive system that rewards over-charging suspects and attempting to get the suspect to plead down to a lesser charge. Either the person deserves to be tried for the higher charge or not. Using the potential of serious punishment in order to convince a defendant to accept a lesser charge does not serve justice.
I think Elliott Spitzer was a great example of this type of prosecutorial abuse. He developed a model where he went after many people who had committed no crime but were willing to plead down to lesser crimes to avoid the potential punishment and drawn-out legal process of facing a daunting legal challenge. Spitzer's final year or so when he was getting ready to run for governor was quite disgusting in that there were many people indicted during his run for governorship and the charges were dropped after the election because they weren't fully baked. I've argued that prosecutors should not be allowed to run for another office until at least two years after their last stint as a prosecutor to avoid the conflict of interest associated with running up prosecutorial win rates while running for another office.
I saw Spitzer on his CNN show after his fall from grace and he said as much when he promoted, in order to stop behavior with which he disagreed, of indicting a group of people for a crime. He said that they would never have to get a conviction because the mere threat would be enough to stop the behavior. This is a person willing to abuse his power in order to change the otherwise legal behavior of people with whom he disagreed.
Ted Stevens (Senator Internet Pipes) had prosecutors who were sanctioned and had his conviction overturned as a result. Unfortunately, his conviction was overturned after his death and cost him an election. Whether you liked Senator Internet Pipes or not doesn't change the fact that using federal prosecutors to intimidate citizens is unacceptable.
These aren't the only two cases. I seem to recall a number of prosecutorial misconduct cases over the past few years and it's a crying shame that it continues and costs so much pain for ordinary citizens.
Combine prosecutorial misconduct with the avalanche of new laws and regulations coming our way and we can expect this trend to continue mainly because we never know when we've run afoul of some law or regulation with which we are unfamiliar.
The prosecutors brought charges far out of proportion with the "crime" of...downloading a bunch of papers in order to "set an example" for other people who might want to do something on computer networks they don't understand yet somehow find threatening.
This seems to happen a lot. Massive overreactions to harmless pranks. Say something critical about the TSA or the FBI online and get put on some watch list for being a "cyberterrorist." Change your MAC address and download some freely available research papers and get 35 years and a million dollar fine for "hacking."
Perhaps it's time another example were made. Hey prosectors and government dipshits: if you don't start employing some common sense, then you're going to lose your career.
Fire 'em. Make an example out of them.
We don't have a state-run media we have a media-run state.
Oh, you see no wrong with prosecutors charging a person with 35 years for what Aaron did? You see no wrong with a system where a federal prosecutor can bankrupt a person and ruin his life even if he is innocent by just charging him with something? You see no wrong with a system that allows prosecutors to blackmail innocent people into deals because the sentences for even minor crimes can be stretched into decades, and with psychopathic people in positions of power, like this prosecutor, abusing this system for personal promotion? You need to open your eyes wide, my friend, you may be impressed by what you will see.
I know I'm going to burn some karma for saying this, but Slashdot readers need to get a grip. I remember similar calls for investigating the prosecutors when Hans Reiser was indicted, and how the Slashdot crowd was screaming for blood about the injustice when he was found guilty ... right up to the point where Reiser led the police to his wife's body.
Aaron Swartz made two big mistakes. The first was using MIT's network to download the JSTOR documents, and evading their attempts to stop him. Stop and think why MIT didn't try to curtail the Feds' prosecution: Swartz betrayed their trust by doing what he did. How would you feel if you suddenly learned that someone you trusted, and allowed access to your system, was using your network to download material in a way that was guaranteed to get some powerful people up in arms? If you're going to involve other parties in your act of civil disobedience, you should show them enough respect to ask them first.
His second mistake (in my opinion) was listening to the sort of faux bravado that is so prevalent on Slashdot. "Fight them, Aaron! Information wants to be free! Don't cop a plea!" I've read that he was offered a six month sentence in a plea bargain. Rather than take that offer (which would have given him maybe four to five months in a minimum security facility) and come out smelling like a rose for his act of civil disobedience, he decided to fight it out against an opponent with essentially unlimited resources. And where are all the armchair cheerleaders when you're the one walking into the courtroom? Nowhere to be found.
I'm reminded of the vicious attacks on George Hotz (Geohot) by the armchair brigades when he backed down from Sony's threats. Hotz was smart; he realized how futile it would be to ruin his life in a battle he could not win. Sony offered him an easy way out, and Hotz wisely took it. Too bad Swartz (or his attorneys) didn't see fit to do likewise.
Swartz had a history of severe mental depression. Did his impending trial impact his mental state? No doubt. But when you turn down a plea bargain from the Feds, you can bet your bottom dollar they are going to put you through the wringer. In the end, it was Swartz's decision to abuse MIT's network, Swartz's decision to turn down the plea bargain, and Swartz's decision to end his life - not theirs.
Aaron Swartz was a bright and talented guy with a history of mental depression who made some bad choices, the worst of which was to commit suicide. And the ultimate irony? The JSTOR papers that "wanted to be free"? At any time, anyone could have gone to a local public university library, sat down in front of a terminal, and read those articles to his or her heart's content. That's what so ultimately ridiculous about this whole unfortunate mess.
US Federal prosecutors have a vast array of methods they can employ to make it difficult for a defendant to exercise his rights. They can freeze assets, making it nearly impossible to hire proper lawyers to present a case. They can "throw the book" at the defendant, listing dozens or hundreds of individual charges which each must be rebutted. They can do massive "document dumps" in the millions of pages to make it extremely difficult for the defendant's legal team to analyze them all. They can use their position to intimidate the defendant's insurers and/or corporations to compel them to withhold legal assistance, as was done in several high-profile white-collar prosecutions. It takes a great deal of money to mount an effective defense against prosecutors with nearly unlimited budgets, as Federal prosecutors are.
And then of course prosecutors have qualified immunity, which means that it is very difficult to make any kind of charges stick against them, no matter how egregious their behavior. We also see this with police officers in the infamous wrong-address SWAT raids.
Only 3% of the defendants dop not accept a plea bargain. Do you know why? Because the possible sentences are ridiculous. Decades of punishment for relatively small crimes. In the face of the possibility of spending decades in jail and bankrupting yourself trying to defend your case, chances are you will accept a deal, even if you are innocent.
When was the last time the government (or anyone else for truth's sake) was right 97% of the time? Do you really think US prosecutors are? Isn't it more likely that a lot of innocent people are in jail right now because of this rotten and distorted judicial system?
It is no wonder that US has the highest incarcerated population in the world, per capita and in absolute values. Much more people are caged there than in other "blooming democracies" like China, North Korea or Iran.
This was originally posted on ThinkProgress but I will post it here to put that 35 years into perspective for those who don't quite get it. He also was reported to have refused the plea bargain so the full book would have been thrown at him so to speak.
Manslaughter: Federal law provides that someone who kills another human being “[u]pon a sudden quarrel or heat of passion” faces a maximum of 10 years in prison if subject to federal jurisdiction. The lesser crime of involuntary manslaughter carries a maximum sentence of only six years.
Bank Robbery: A person who “by force and violence, or by intimidation” robs a bank faces a maximum prison sentence of 20 years. If the criminal “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device,” this sentence is upped to a maximum of 25 years.
Selling Child Pornography: The maximum prison sentence for a first-time offender who “knowingly sells or possesses with intent to sell” child pornography in interstate commerce is 20 years. Significantly, the only way to produce child porn is to sexually molest a child, which means that such a criminal is literally profiting off of child rape or sexual abuse.
Knowingly Spreading AIDS: A person who “after testing positive for the Human Immunodeficiency Virus (HIV) and receiving actual notice of that fact, knowingly donates or sells, or knowingly attempts to donate or sell, blood, semen, tissues, organs, or other bodily fluids for use by another, except as determined necessary for medical research or testing” faces a maximum of 10 years in prison.
Selling Slaves: Under federal law, a person who willfully sells another person “into any condition of involuntary servitude” faces a maximum prison sentence of 20 years, although the penalty can be much higher if the slaver’s actions involve kidnapping, sexual abuse or an attempt to kill.
Helping al-Qaeda Develop A Nuclear Weapon: A person who “willfully participates in or knowingly provides material support or resources . . . to a nuclear weapons program or other weapons of mass destruction program of a foreign terrorist power, or attempts or conspires to do so, shall be imprisoned for not more than 20 years.”
Violence At International Airports: Someone who uses a weapon to “perform[] an act of violence against a person at an airport serving international civil aviation that causes or is likely to cause serious bodily injury” faces a maximum prison sentence of 20 years if their actions do not result in a death.
You didn't answer his question.
What kind of punishment do you think Aaron Swartz deserved? When answering, please remember that JSTOR's opinion was "none".
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In case you missed it...JSTOR, the injured party in question, asked them to drop the case.
Charging people with felonies when the victim said "no dude, it's cool, no harm no foul" shows a stunning lack of discretion.
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I just saw it here: ...Prosecution of the case continued, with charges of wire fraud and computer fraud, carrying a potential prison term of up to 35 years and a fine of up to $1 million.[50][51] One of Swartz's lawyers revealed prosecutors told him two days before Swartz’s death that "Swartz would have to spend six months in prison and plead guilty to [all] 13 charges if he wanted to avoid going to trial."[52] After Swartz's death, his attorney Marty Weinberg told press that he "nearly negotiated a plea bargain in which Swartz would not serve any time", but that bargain failed because "JSTOR signed off on it, but MIT would not."[53]
http://en.wikipedia.org/wiki/Aaron_Swartz
Here are the links 50 and 51:
http://crln.acrl.org/content/72/9/534.full
http://www.techdirt.com/articles/20120917/17393320412/us-government-ups-felony-count-jstoraaron-swartz-case-four-to-thirteen.shtml
True, he might not have gotten the full 35. I would even feel fine placing a $20 bet that he would get a shorter sentence. For him the stakes were much higher. To me the threat of such a sentence seems like a form of psychological warfare.
Crimes against one's person, and crimes against a nebulous - at best intellectual property concept are and should be treated very differently.
It must be really hard to get around in a world when you can only see black and white and nothing else.
In what way does this case parallel a battered spouse situation?
Who had more money: JSTOR/MIT or Defendant?
Who had more power: JSTOR/MIT or Defendant?
How bruised was JSTOR/MIT by Swartz' actions?
What kind of future threat to JSTOR/MIT's physical safety did Swartz represent?
Seriously man -- your comment is a symptom of what's wrong with the Feds -- no sense of proportion, no sense of reality, no sense of fairness. It's either black or white.
But beware -- when you start to lock up people for the rest of their lives based on trivial things, those people might think stuff along the lines of "what the hell, might as well bring a gun and shoot someone if I'm caught making this photocopy of a magazine because if I'm going to do that kind of time, might as well do a crime to fit it."
What changed under Obama? Nothing Good