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The End of Carmen Ortiz’s Political Career

[ 245 ] January 19, 2013 |

It looks like Carmen Ortiz will not live down her role in the suicide of Aaron Swartz. The fact that she’s still defending the prosecution and the legal process is another sign that she should never, ever be considered for political office. And it sounds the general consensus is that she is finished:

I think it’s fair to say that any political career that Carmen Ortiz may have been contemplating is, as Margery Eagan wrote yesterday, “done. Finished. Forever linked to bringing the full and frightening weight of the federal government down upon a 26-year-old computer genius — and a suicide risk.” Perhaps Ortiz could overcome that eventually, but it will take many many years for her to do so.

Good.

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  1. Mo says:

    Same as Martha Coakley. She wasn’t a great candidate, but her refusal to accept that the Amiriault convictions had no factual basis and were part of the “Satanic Panic” raging through the nation at the time meant that people just weren’t willing to make calls for her or do get out the vote. When it appeared that Scott Brown was going to win, there was a great deal of soul searching among folks who had sworn they would never vote for her. I did in the end, but I wasn’t happy about it.

  2. blowback says:

    Another scapegoat for a faulty fucked up system?

  3. First thing Ortiz has to do if she wants a career is to forbiid her husband from opening another Twitter account–or at the very least ask him to not question the motivation of the bereaved when he does.

  4. Decrease Mather says:

    If only there were another political party where this sort of thuggishness wasn’t a drawback.

  5. Jeremy says:

    I noticed yesterday that the front page of the Boston Globe had a big picture of her office showing off the results of some huge drug bust. I couldn’t help but think it was more of a PR effort for her political career than anything else.

    • snoey says:

      It was career PR, but it is also a legit case of doing well by doing good. This was a long term federal state effort that targeted career criminals who were carrying guns, dealing on the streets, screwing up residential neighborhoods and otherwise doing all the things we don’t want our drug dealers to do.

  6. cpinva says:

    that ortiz considered the copying (and that’s what it was) of articles, that should have been (for the most part) freely available to the general public, because the general public paid for them, was a more heinous crime than trying to rig elections, says buttloads about her judgment, none of it good.

    in a way, mr.s swartz’s suicide may actually have had an unintended, beneficial affect: it killed ms. ortiz’s career in the public sector. sad as it is, had mr. swartz not felt so compelled, 99% of the voting public would never have heard of this, and she’d have continued, with that poor judgment affecting more and more people.

    perhaps a fitting tribute to mr. swartz, and some consolation to his family and friends.

    • justaguy says:

      Yes, but it doesn’t put her out of step with the Obama Justice Department, which didn’t prosecute anybody at HSBC for a conspiracy to launder terrorism and drug cartel money – not for lack of evidence, but explicitly saying that prosecuting bankers for crimes is bad for business. I don’t say that to mean Ortiz should be given a pass because everybody does it, but to point out that the Cossacks work for the Czar.

      • lawguy says:

        “The cossacks work for the czar.” I’d never heard that before. I’m going to steal it and be subject to years in federal prison.

      • the Cossacks work for the Czar.

        Like how J. Edgar Hoover worked for John F. Kennedy. Huh?

        This isn’t an absolute monarchy, and federal law enforcement does not get its marching orders from the President. This isn’t czarist Russia, in which all authority and law derived from the person of the Czar, but a system of divided government in which they ultimately come from the legislature, and are codified into a system of laws, enforced by agencies that have their own independent authority.

        Americans history since the creation of the modern regulatory state is full of examples of federal law enforcement that not only pursued policies independent of the wishes of the presidential administration, but which went to war against the administration and its policies.

        “The cossacks work for the czar” is a grossly distorted way to look at the Justice Department.

        • justaguy says:

          Yes, there are plenty of instances where parts of the executive branch didn’t enforce or went contrary to the President’s express wishes. And I’m open to the possibility that AG Holder has created an independent base of power on par with Hoover, but if so he’s pretty good at keeping it on the down low. Is there anything that makes you suspect that this is the case with the Justice Department’s general disinclination to prosecute people in the finance industry for mortgage fraud or other crimes? That Obama sincerely wants to change the way that Federal prosecutors use their discretion to intimidate defendants, but that the Justice Department just isn’t going along?

          But, anyway, if you look at what I actually said, I suggested that her actions weren’t out of step with the Obama Justice Department. Holder would be the Czar in that equation. And, to be clear, I’m not suggesting that giving powerful people who break the law a pass started with the Obama administration, it didn’t. And I’ve met plenty of people who have had the same abuse of prosecutorial discretion used to intimidate them into plea bargins by state and local prosecutors.

          My point wasn’t to blame Obama as an individual, but to point to the extent that the problem is systemic and larger than a single US Attorney. So, sure, heap scorn on Ortiz, but just ending her political career will change nothing.

          • DocAmazing says:

            The DoJ answers to Holder, and Holder answers to Obama.

            Does the buck stop anywhere?

            • There have been entire libraries written on the topic of competition among power centers within the executive branch.

              But you have a cliche. Whoopie. I guess we can clear some shelf space.

              • Rodolfo Graziani says:

                Well, how about “respondeat superior” — legal term meaning “let the master answer”, that is, the employer/supervisor/president is responsible for the acts of his minions. Pretty well-established law in the private sector, though not, apparently, in our asinine federal government.

          • Mike G says:

            So, sure, heap scorn on Ortiz, but just ending her political career will change nothing.

            Just maybe it will make other predatory prosecutors realize that there is such a thing as going too far. I doubt many of them have considered such a concept before.

          • And I’m open to the possibility that AG Holder has created an independent base of power on par with Hoover

            It doesn’t take “an independent base of power on par with Hoover.” It only takes a reversion to the pre-Dubya years, when the Attorney General was not part of the White House political operation, and the United States Attorneys were largely independent law-enforcers from the Attorney General.

            Is there anything that makes you suspect that this is the case with the Justice Department’s general disinclination to prosecute people in the finance industry for mortgage fraud or other crimes? That Obama sincerely wants to change the way that Federal prosecutors use their discretion to intimidate defendants, but that the Justice Department just isn’t going along?

            I don’t think Obama is fighting with his Justice Department; I think he’s doing was most Presidents did pre-Bush, and leaving it more or less alone to do its job.

            But, anyway, if you look at what I actually said, I suggested that her actions weren’t out of step with the Obama Justice Department. Holder would be the Czar in that equation.

            Then call it the Holder Justice Department. I don’t disagree with your point about federal prosecutors; I was deflecting a point, one that you might not be pushing but people like DocAmazing are, that this isn’t about federal prosecutors, but about the person of the President and the stance of the elected administration.

    • Chuchundra says:

      Copying? That’s all?

      I guess you left out the part where Swartz abused MIT’s wireless network, causing them no small amount of stress and trouble and then, when that avenue was eventually shut down, went into a network closet ant attached his computer directly.

      • spencer says:

        You’re right. He definitely deserved 30 years in prison for that.

        I mean, he caused MIT’s deliberately open network stress! What more does he have to do, kill someone or something?

        • Chuchundra says:

          He was offered a plea bargain deal of either an agreed upon four months in prison or letting the judge decide his sentence with a max of six months.

          In any event, he was never going to get 30 years.

          Please do try to keep up.

          • They are keeping up. The Blue Mass Group writer decided to throw out a red herring about the judge ignoring the plea deal.

            • Richard says:

              Listen Ortiz overcharged this case but almost all multiple federal crimes carry thirty year maximums. He would never have gotten anything like that even under a worst case scenario. And it’s not like he was ths defenseless person going up against the might of the federal government. He had the most talented and most expensive law firm in the country representing him for free. This case is a tragedy but he almost dared the government to prosecute publishing a manifesto where he declared that it was his moral mission to defy the law. Even with that, he should have been charged with a simple felony which should have been plea bargained to a misdemeanor with probation conditioned on not doing this again

              • I’m open to the argument that the deal Ortiz offered was marginally tougher than it should have been.

                The actual argument in the linked article, loyally repeated by a few different commenters on this thread, that we should ignore the 4 month plea deal because the judge coulda thrown it out technically (nevermind that there is absolutely no reason to think that would have happened) is bullshit.

                The storyline that his defenders are trying to push is that this kid killed himself because he was facing decades in prison, and that’s bogus.

                • Richard says:

                  Totally bogus. He was facing six months at most if he took a plea and even if he didn’t and went to trial and lost, his sentence would have been mandated by the federal sentencing guidelines so a couple years at the very most. I don’t want to downplay a two year sentence but its far different than thirty years. Plus as I point out below, it’s not at all clear that four months was the final offer

                • DocAmazing says:

                  Yeah, he needed to be locked up, preferably right next to Bradley Manning, who has been having the time of his life.

                  These are the liberals?

                • Richard says:

                  Who’s arguing that he needed to be locked up? My position is that he was overcharged but that even if he had not been overcharged, a plea to a single count with a four month sentence is not outrageously evil. I think they should have let him plea to a misdemeanor with no time but strict conditions of probation. I have no clue whether he would have accepted that (nor, I gather, do you).

                  With regard to Manning, the conditions of his incarceration were terrible and fortunately have now been changed. But both because of the seriousness of the charges, in no way comparable to Swartz, and the possibility of flight, he needed to be locked up prior to trial. If convicted, he will obviously get a long jail term which, I believe, the facts of the case warrant.

                • DocAmazing says:

                  With regard to Manning, the conditions of his incarceration were terrible

                  That’s been denied in these precincts.

                  It’s nice that you think he was overcharged. Carmen Ortiz clearly did not. That’s the point of the outrage.

                • Richard says:

                  I have no problem being outraged at the original charging. I think it was wrong. But the point that has been made repeatedly here is that the prospect of a thirty year sentence caused him to take his own life. That just isnt the case because he was offered a four month sentence and because his eminently capable attorneys would have told him that, based on the sentencing guidelines, he would not get thirty years even if convicted of everything. According to the Kerr article, his attorneys had been told that the prosecutor believed he might face a maximum of seven years under the guidelines. Kerr believes that a sentence of under a year was more likely.

      • Angry Geometer says:

        “causing them no small amount of stress and trouble”

        Go fuck yourself. If you think that one person downloading stuff from one website would be enough to actually bring down one of the oldest and most powerful computer networks in the world, you really don’t have enough fucking information to speculate about anything more complicated.

        The last time anyone managed to bring down MIT’s network was 1988. Guess what happened to the guy who did that? He’s now a tenured professor at MIT and one of the founders of Y Combinator.

        Even if you’re too fucking stupid to keep your mouth shut when you have no clue how something like computer networks work, maybe in honor of the dead you could make a fucking effort.

        • Chuchundra says:

          Why don’t you go read about what I wrote and then go read the summary of what actually happened. I am fucking tired of assholes like you doing their goddamn outrage dance without clue one about what they’re talking about.

          You know, it was MIT that called in the Feds. I’ve heard that the people there know a thing or two about a thing or two. Maybe you might want to give a thought to what their issues might be.

        • Bijan Parsia says:

          The last time anyone managed to bring down MIT’s network was 1988. Guess what happened to the guy who did that?

          He was convicted and sentenced and served the sentence (appeal was denied: three years of probation, 400 hours of community service, a fine of $10,050, and the costs of his supervision. Of course, the Morris worm did a lot more than bring down MIT’s network.

          Furthermore, Morris’ intent was quite different and the damage due to an error.

          He’s now a tenured professor at MIT and one of the founders of Y Combinator.

          Yes, he was able to recover entirely. A good thing, I think.

          If you think that one person downloading stuff from one website would be enough to actually bring down one of the oldest

          I’m not sure how age feeds into load robustness.

          and most powerful computer networks in the world,

          I’m not sure what you mean by “powerful”. Do you mean that the computers attached are powerful? That the bandwidth is large? That the number of nodes is high? That it has a lot of redundancy?

          In any case, I’d be very very surprised if MIT’s network was anything special at all, even in comparison to other major universities. I don’t think they have a datacenter on the order of Google, Apple, or Amazon…why would they? They might have on the order of 10,000s of users, not millions.

          you really don’t have enough fucking information to speculate about anything more complicated.

          Hmm. I’d be a little more cautious about such charges.

      • Kyle says:

        Swartz abused MIT’s wireless network

        I work in IT on a college campus. By this standard, dozens of students would be in jail for decades.

    • Jamie says:

      but Aaron is still dead.

      Some of us miss him. Ortiz can go do whatever the fuck she likes. That’s the privilege of the living.

  7. BruceJ says:

    Maybe, maybe not…it sure didn’t slow down Janet Napolitano’s career. Look up Operation Sundevil sometime….

  8. Joe Citizen says:

    The online community has certainly made the case, very loudly and very clearly, that they should have no credibility whatsoever on political matters given the instinct to demand special treatment for one of their own.

    The kid knowingly violated the law – he went well out of his way to get those documents in a clearly illegal manner. It is absurd to argue that he should not have been prosecuted because he was a “genius”, or because he was prone to depression. If it was activism, or civil disobedience – then there is even less validity to the criticism of the prosecution. The whole point of civil disobedience is to call the punishment down upon yourself as a way of arguing to the public that the law needs changing.

    I can understand that those who loved or friended this kid would be very upset at his suicide, and people who are upset tend to lash out and try to blame others. Lots of absurd and unfair things get said. I think it is time to step back from all that and take a more rational approach.

    The kid killed himself. Ortiz is not to blame at all. She did her job, and there is no rational reason to believe that she would not have followed this case through to a conclusion that would have been fair. That she used multiple charges with their scary-sounding maximum sentences as a way to leverage a plea is something that happens every single day in every single jurisdiction in this country. She is not responsible for his suicide. He is.

    • Mrs Tilton says:

      The online community? Yes, losers one and all. You should exit that community, permanently; that’d show ‘em.

    • UberMitch says:

      Hi Carmen!

    • sapient says:

      I completely agree, Joe Citizen. It’s important to change laws that are bad rather than to malign prosecutors for doing their job. Prosecutorial discretion is more for situations where someone technically committed a crime but didn’t meant to do it, and won’t be doing it again, not for situations where someone was purposely breaking a law in order to test the system.

      I think that Swartz’s suicide is tragic. But it diminishes him and his own agency to blame people who were doing their job within the criminal justice system. Don’t like the system? Work to make it better – not to produce more selective enforcement.

      • Chuchundra says:

        Bleh. It’s the same kind of special pleading I’ve seen in most of the other Swartz-defending articles.

        He was a nice guy, a genius, a SUPER GENIUS. Everyone loved him.

        And, you know, the network admins at MIT who had to clean up his mess and the students that lost access to JSTOR, I’m sure they realized it was all in good fun.

        • JL says:

          I know an awful lot of people who were MIT students and network admins when this happened, and the vast majority of them were supportive of Swarz.

          That said, I agree that the issue is not that Swarz should have gotten special treatment because he was a super-genius that everybody liked. The issue is that prosecutors routinely overcharge and intimidate and push for sentences that don’t fit the wrong done to society in order to scare defendants into pleading out, and still wreak havoc on people’s lives, and THAT is something worth fighting, and in this case it resulted in tragedy.

          Full disclosure: One of my close friends (who was in fact an MIT student working on a thesis at the time this happened) was living in a house where Swarz was a frequent guest, and spent several weeks living in terror of the house being raided as the grand jury stuff went on, and is quite distraught about the suicide. I didn’t know Swarz though.

        • Why shouldn’t a basically harmless, highly productive and creative member of society whose violation of technical statutes threatened no infrastructure or persons be given greater consideration and a lighter sentence than someone whose character and history are less illustrious and whose trespasses were greater?

          There’s a reason why these crimes carry variable punishments. People are supposed to use their judgement because circumstances vary.

    • wengler says:

      Go fuck yourself.

      Seriously.

    • sharculese says:

      The kid knowingly violated the law – he went well out of his way to get those documents in a clearly illegal manner. It is absurd to argue that he should not have been prosecuted because he was a “genius”, or because he was prone to depression. If it was activism, or civil disobedience – then there is even less validity to the criticism of the prosecution.

      As a shouty, vengeance-addled child, I fully concur that these are things that earn one a multi-decade stretch in federal prison.

      • Warren Terra says:

        Without defending the extreme response Ortiz brought down upon Swartz (though I am heartily sick of hearing invocations of “decades in prison” when her target was apparently 6 months in prison, more than I’d prefer but almost two orders of magnitude less than is often denounced), “Joe Citizen” has a point. What Swartz did was illegal; moreover, it was wrong. He was laudably idealistic, and his ideas about intellectual property were very interesting. Still, he chose to burglarize MIT and to violate the databases of JSTOR in order to steal millions of files copyrighted by people other than JSTOR or MIT. To strike a blow against a genuinely bad system, Swartz attacked those working to ameliorate the system’s worst aspects. He simply chose the wrong targets. Furthermore, this was the second time Swartz had attempted a similar action (after previously targeting the Pacer database, which is manifestly more egregious than even the worst mischaracterizations of JSTOR could ever make it out to be) – you can see why the prosecutor felt it was necessary to obtain a formal admission of wrongdoing, and you can perhaps understand (though not sympathize) with her desire to effect a brief incarceration.

        Shorter me: Swartz was a brilliant, gifted, idealistic, deeply troubled young man. Any death is a loss, and the death of such a capable and ambitious young person is a tragedy. But he wasn’t a saint, and the fact that he died doesn’t mean his actions should be uncritically defended; nor should the representative of the state responsible for responding to them be demonized beyond what she actually did.

        • sapient says:

          This. Thank you.

        • Barry Freed says:

          This is just all kinds of wrong. What Aaron did with the PACER database was not illegal at all as was determined by the judge in that case. Nor should it have been. These are uncopyrighted (and uncopyrightable) federal court case documents in the public domain that the government was charging access fees for. Aaron found a legitimate loophole which allowed him to make many of them available to the public free of charge as they should be already. But it did put him on the DoJ shitlist.

          • rea says:

            Although why anyone would want to see 99.9% of what is on Pacer is a mystery to me. You can go down to the courthouse and look at this stuff for free, and copy it by paying the copying charge, but nobody does that because it is stuff that nobody cares about other than the parties to the case.

        • Mike the Liberal says:

          Ortiz’ target was 6 months in jail – AND A GUILTY PLEA TO A FELONY. Which isn’t quite the same as “6 months in jail”.

          Swartz would have needed to give up contesting the law and f cease to argue that what he did was illegal under the law.

          The actual, likely sentence given if he’d gone to trial and lost would have been around 7 years.

          • Bijan Parsia says:

            Ortiz’ target was 6 months in jail – AND A GUILTY PLEA TO A FELONY. Which isn’t quite the same as “6 months in jail”.

            Arguably, one should say “6 MONTHS IN JAIL – and a guilty plea to a felony,” i.e., being a felon for someone’s of Aaron’s stature and connections* something quite manageable. Whereas, esp. if Henry is right that Aaron’s health would force him to be kept in a more secure prison, jail is quite physically dangerous.

            Obviously, it’s impossible to say which aspect weighed more on his psychological state. I’ve seen some articles which claim that he really didn’t want to be a felon.

            Swartz would have needed to give up contesting the law and f cease to argue that what he did was illegal under the law.

            (I presume you mean “legal”?) Well, no. He could have pled and then argue that the law is wrong or was misapplied, etc. He could have pursued a pardon. He could have used his stature — so manifest after his death — and his situation to work against this sort of thing as people are trying to do now, without him.

            My guess, from various little snippets, is those possibilities were not psychologically available to him. His girlfriend spoke of the difficulty he had in asking others for money. And that sucks.

            *Even if he was broke, he had a loving family and friends who could give him jobs, etc. While being disenfranchised seriously sucks, it’s hard to argue that Aaron’s most meaningful political power was his individual vote.

      • Chuchundra says:

        I think you meant to say four months in prison. Carry on.

      • You mean 4-6 months.

        Judging by this thread, the “shouty, vengeance-addled child” moniker doesn’t seem to apply where you want it to.

    • Malaclypse says:

      Ortiz is not to blame at all. She did her job

      So did Javert.

    • ChrisTS says:

      It is not at all clear that Mr. Swartz either (a) violated the law or (b) did so knowingly.

      The first issue, in particular, seems very complex, and people who actually understand the technology have disputed the prosecutors’ (and Kerr’s) representation of what Swartz did.

      Further, the prosecutors’ seem woefully misinformed about how JSTOR works and about who might have been harmed by anything Swartz attempted to do (i.e., they think academic authors get paid for their articles).

      • Chuchundra says:

        He went into a network closet at MIT and attached his computer to the network without authorization so he could download the entire JSTOR database.

        • justaguy says:

          And MIT deliberately makes it so that anyone can access their network, and that you don’t need to register to have access to JSTOR via their network. JSTOR agreed to this arrangement, and does not put a limit on the number of articles you can download.

          • Warren Terra says:

            This is not precisely true. It’s not hard to connect to the network, but each wired connection is supposed to have a fixed IP address, and your lab, dorm, or other institution pays for each IP address.

            Also, the ability to access an institutional subscription to a database or online journal has been normal at every academic institution I’ve visited.

            • Snarki, child of Loki says:

              Really? The MIT computer guys haven’t discovered the wonders of DHCP?

              That’s really weird; I thought they were a LOT more on the ball about networking stuff than that.

              Do they also require all computers to be in the /etc/hosts file, or do they know about DNS?

              • Warren Terra says:

                You can set your IP address to anything you want, and if it’s within the right range it will work, although you might wind up sharing it with another computer, which doesn’t work well (and it can take them awhile to track down the offending party; some nitwits did this to my address twice while I was there, as I recall). But you’re supposed to obtain and then use an assigned IP address, and they’re billed for.

          • John says:

            You’ve read all the terms of service?

        • bph says:

          I love this argument. Swartz is horrible! He committed trespassing and stole bandwidth!

          Can we bear this same legal firepower on spammers please? Because they do a hell of a lot more damage to networks than Swartz ever did. 80% of our incoming email is spam, day in, day out.

        • ChrisTS says:

          An unlocked closet used by a local homeless person to store his belongings.

      • sapient says:

        It is not at all clear that Mr. Swartz either (a) violated the law or (b) did so knowingly.

        That’s what trials are for. Unfortunately, Aaron Swartz didn’t take the route of standing for trial; he killed himself instead. We don’t know why, but blaming a prosecutor for bringing a case before the court – it’s not fair to her.

        People always struggle to find reasons for someone’s suicide. By all accounts, Aaron Swartz was someone we all would have wanted to live a long life. He chose to do the things he did, including “messing” with the law (and, according to a Grand Jury, there was probably cause that he did break the law), and ending his own life. Allowing other people to take blame (or credit) for his choices is not fair to him.

        • Jeremy says:

          “That’s what trials are for.”

          And of course, by piling on the charges such that Swartz was faced with up to 30 years in prison, the prosecution was totally trying to get this case to go to trial and have the facts be determined by a jury. Seriously, you can’t really believe that the prosecutor’s office had any intention of this going to trial. That’s the way the justice system in the US works these days. The prosecutors stretch every statute to the breaking point to keep defendants from attempting to exercise their right to a jury trial where their guilt must be proved beyond a reasonable doubt.

          • Richard says:

            He had the best attorneys in the country working on the case for free. It was the government that was most likely to blink if a trial looked imminent

            • bph says:

              Then why did they not? And why did he die broke?

              • DocAmazing says:

                Bail was a hundred grand. That might have been part of the financial stress.

              • Richard says:

                He died broke because he didn’t have any money but it wasnt because of his legal fees. Lessig had persuaded Keker and Van Nest to represent him for free and they were prepared to go to trial – remember, he turned down the plea agreement. You May not know them but John Keker is one of the best trial attorneys ever and the whole firm is top notch. (I have associated them in on a big case and their reputation is well deserved).

                And the government had started to blink – they were offering four months. They might have offered something even better on the eve of trial. The reason it didn’t go to trial is unfortunately simple – he committed suicide.

              • Warren Terra says:

                He didn’t die broke from legal costs, nor bail, as noted elsewhere in this subthread, but I assume he was unemployable. Who could assume the liability of hiring someone with his hacktivist record? And how much time could he devote to a job under the threat of federal prosecution?

                • Bruce Baugh says:

                  And I haven’t yet seen anyone saying “he should have sucked up and taken the deal” show that they understand what a felony conviction on one’s record does in the kinds of field Schwarz worked in. That’s not to say none of them have thought about it. I’m not psychic. But I haven’t yet seen a single criticism of him that bothered to demonstrate an awareness of the issue.

                  Not to mention that even if he were guilty in the most maximal sense of the most fervent DoJ rhetoric, it would still be a shitty thing to prioritize, compared to other stuff they plead down to misdemeanors or wave off. Which is really the point.

                  If Shwarz had gotten misdeamor charges, probation terms including automatic felony status for doing anything similar again for the next N years, and fines on the scale of paying MIT’s people for their time investigating, I really don’t think there’d be much shouting about prosecutorial overreach. Some discontent, yes, but not the kind of outrage a lot of us feel.

                • Warren Terra says:

                  No, the likelihood of a conviction on his record wasn’t really the issue, though I don’t know what obnoxious probation requirements he may have had cause to fear. Arguably, by pleading guilty, getting the process over with, and appearing to take seriously the notion that his activism and advocacy shouldn’t include lawbreaking and hacking he might have made himself employable again – for example, in the sort of visiting fellow position he had at Harvard when he targeted MIT and JSTOR. A big part of the risk in employing him was that he had hacked major databases of copyrighted material twice in the last few years, and refused to publicly say that he had been wrong to take that approach and would stop doing it. A guilty plea would have solved that question.

        • ChrisTS says:

          Of course, trials are for determinations of facts – at least.

          I think Ms. Ortiz did what most DAs do – especially if they think the case will be a career-maker. However, one might think that most high-profile prosecutions are pursued over-zealously without thinking the high-profile defendant is a saint.

          Indeed, given that most criminal prosecutions in this country are pled out because of prosecutorial aggression, we might look at this tragedy as a spur to reconsidering the power of the state (prosecutors) in all criminal cases.

    • Kyle says:

      Thanks for stopping by, Mr. Ortiz.
      How’s that new Twitter account doing?

  9. sapient says:

    Barry Freed, I appreciated that link. The first comment under it, though, by Davi Ottenheimer, says this:

    “’This seems to be a straw man. I see no one saying ‘let’s only be angry about Aaron Swartz.’”

    Well, we do see people saying that they want to fire this attorney or that attorney, as though their anger is only about one person. That is why it is not a straw man. Changing the game instead of focusing only on a player is how I read Orin’s argument.”

    This is the issue I agree with. Moreover, I think that Aaron had the opportunity to change the game with civil disobedience, but only if he played the game. Civil disobedience isn’t about breaking a bad law, and then having it waived because you’re such a good person. It’s about paying the price.

    • MikeJake says:

      See, I think one of the hallmarks of a just and functional society is that sensible changes can be achieved without having to resort to self-immolation and martyrdom.

      • sapient says:

        I completely agree, MikeJake. But the issues of intellectual property protection, remuneration for electronic data compilation, unauthorized use of proprietary information, etc., are very difficult. Not only do wealthy corporations have a huge stake, but authors, publishers, not-for-profit and educational institutions – all kinds of people’s livelihoods depend on electronic data transmission.

        My own belief is that the laws perhaps provide too much protection for some entities, and not enough for others. I think that huge jail penalties (as were potentially available in a prosecution of Aaron Swartz) make little sense. That said, the issues aren’t easy to sort out, especially through laws that are written to cover a variety of potential fact patterns. People who want to challenge the law can do so through the electoral process and other means, but Aaron Swartz chose civil disobedience. Sadly (again, tragically) for all of us, he was emotionally or psychologically unable to endure the consequences of his choice.

        Or maybe he chose to take his own life for a completely different reason. We don’t really know.

    • lawguy says:

      The why did all those civil rights deminstrators in the south fight their cases all the way to the Supreme Court in many cases in order to avoid the punishment?

      • sapient says:

        Because they didn’t do it in order to avoid the punishment. They did it in order to get a Supreme Court decision that changed the existing law. Many people went to jail during the Civil Rights movement. The idea was to pack the jails so tightly that they couldn’t be ignored. Read up.

        • david says:

          Nobody, ever, engages in civil disobedience because they think doing the time is the right the to do. You’re not supposed to take unjust punishment, you are supposed to fight against it. You may have read up on the civil rights movement, but you don’t seem to have understood much.

          But we’re talking about Ortiz here, not Swartz. She used the mighty power of prosecution, backed by exceedingly stupid laws, to bully someone into jail time so she’d get a head on a stick, so to speak. Can’t imagine it’s the only time, given the idiosyncratic circumstances that have brought this one to light. Those idiosyncratic circumstances don’t diminish the fundamental dickishness of what she did in this case.

          And, you know, if she’s treated to an a bit unfair amount of backlash for her bullying behavior, well, maybe that an educational moment for those given to prosecutorial excess

          • Nobody, ever, engages in civil disobedience because they think doing the time is the right the to do. You’re not supposed to take unjust punishment, you are supposed to fight against it. You may have read up on the civil rights movement, but you don’t seem to have understood much. – david

            In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law. – Rev. Martin Luther King

            • david says:

              Good christ you can be a pain. Willlingness to accept the penalty does not mean doing the time is the right thing to do. What work do you think is doing the the conscience arousing in that quotation? Not sure if your quotation there is right, but I suspect there is a reason there is no definite article before that last word.

              And this in the context of sapient making the argument that he should have done the time instead of committing suicide cause we can’t tell whether the prosecution really did go overboard. But you see, you can. Because it’s not actually the accepting of the punishment that tells us the punishment is wrong. It’s the punishment.

              • Yes, I do tend to be a pain to people who make bad arguments, muddle their history and facts, and then strike a condescending tone while “correcting” somebody who got it right.

                Don’t expect that to change. Make sure you know what you’re talking about before you act like Mr. Smart Guy, or this is going to happen.

                Anyway, here’s the link. It says exactly what the clip appears to say. Sorry.

                • DocAmazing says:

                  We need to reconsider the role of Bull Connor in history. By throwing all those protestors in jail, he clearly advanced the cause of civil rights, by enabling them to willingly accept their penalties.

                • david says:

                  yes what DocA said. You seem to think that the proper response to being jailed in Birmingham was to write a letter saying “That’s a good cop, guv”

                  I make no claim to being a US 20c historian, but really, it’s a bit much for you to go off about history and facts.

                • sapient says:

                  Thanks, joe from Lowell, for providing a link to a long excerpt of one of the most famous and important documents on the subject of civil disobedience, by America’s most highly lauded practitioner, Martin Luther King, Jr., whose birthday we celebrate on Monday.

                • We need to reconsider the role of Bull Connor in history. By throwing all those protestors in jail, he clearly advanced the cause of civil rights, by enabling them to willingly accept their penalties.

                  yes what DocA said.

                  Are you kidding me? THAT is what you got from Dr. King’s words?

                  Whatever.

                • rea says:

                  King, and Thoreau and Ghandi before him, made a point of accepting the penalty as part of civil disobedience.

    • ChrisTS says:

      You assume both that Swartz would have conceptualized civil disobedience in the same way you do and that ‘protest’ was his primary objective.

      I think it is at least plausible that he was engaged in direct action to thwart practices to which he objected. Even if he regarded himself as engaged in protest, he need not have subscribed to the view that civilly disobedient agents ‘must’ accept penalties.

      • sapient says:

        I can only assume, because instead of explaining what he was up to, he took his own life.

        • Walt says:

          This “he killed himself, so I win the argument by default” is a new one on me. I admire the amorality of it, if nothing else.

            • sapient says:

              Sadly, it’s true that by killing himself, he ended the argument. I don’t know what argument I am winning by his death – I certainly don’t believe that his suicide allows me to win anything.

              My point was that he could have carried the argument forward in a number of ways, but didn’t. Any of us who have experienced the suicide of a loved one knows how frustrating it is to imagine how many choices a person has other than that one. In the end, people who have loved a suicide victim have to believe that the choice was theirs, and respect it, even if they are constantly thinking of a million ways they should have been there in a different way for that person.

              Especially Aaron Swartz, who was brilliant, who had wonderful, prestigious, smart, activist friends, who had money, who was much beloved – he had many, many other choices. He could have, for example, gone to prison for a few months. What then? His prison time would not in any way have impeded his ability to do a million more things for the world, and for his particular cause. It might have even given him greater authority, since he would have been seen as someone who was willing to live by his beliefs. He would have had the support of millions. But he chose to take his own life instead.

              Am I sad that he did that? How could I not be? I am sad for him and his family and friends. He had a lot more to give, and he chose to die instead.

              Perhaps depression, or other mental illness, was the cause, and it was not so much a choice. To think so is maddening and frustrating, but blaming other people isn’t the answer.

          • ChrisTS says:

            Jesus. “You killed yourself, so I win.”

            UGH.

    • JL says:

      I’m getting awfully tired of this idea, which I’ve heard a number of times before from people who have never faced down the cops themselves (not that this is necessarily true for you; I don’t know your background), that civil disobedience means that you should take whatever happens to you, however over the top it is, without complaint. And even more strangely, that the people who support and/or care about you shouldn’t complain either because that’s how the game works.

      There’s the price you might have reasonably expected to pay, and there’s the price that you are suddenly faced with, and those are not necessarily the same thing. Civil disobedience is risky, and it can go far worse than what you might have expected, but that doesn’t mean that you aren’t entitled to object when it does.

      • ChrisTS says:

        This idea that CD ‘means’ a willingness to accept legal penalties (out of reverence for Law) is the result of the work of a relatively small number of philosophers in the 60′s/70′s and their mythologizing of the lives/practices of a Gandhi and MLK Jr.

        The …. resilience …. of this view is a puzzle to many thinkers (including many who began with or shared the assumptions of the ‘tradition’ invented in the 60′s/70′s).

        One of my greatest disappointments with Orin Kerr’s posts on the Swartz case VC was that he seemed to be unaware of the literature on these matters.

        • John says:

          “Under a government which imprisons any unjustly, the true place for a just man is also a prison. The proper place to-day, the only place which Massachusetts has provided for her freer and less desponding spirits, is in her prisons, to be put out and locked out of the State by her own act, as they have already put themselves out by their principles.” – Henry David Thoreau

          • Malaclypse says:

            How much time did Thoreau himself spend in jail again?

            • John says:

              I think my point was that the idea of civil disobedience involving being willing to accept legal penalties and go to jail is already right there in Thoreau.

              • Malaclypse says:

                Yea, Thoreau really experienced The Crushing Power Of The State.

                • John says:

                  Again, I was responding to ChrisTS’s claim that the idea that civil disobedience means a willingness to accept legal penalties was something devised in the 60s by people misinterpreting Gandhi and King.

                • Bijan Parsia says:

                  It’s arguably in the Crito (i.e., accepting punishment).

                  It’s hard for me to say whether Thoreau thought that the accepting the punishment was a duty (the way King argued) or even if it was effective. Going to jail was the straightforward consequence of disobedience, so since disobeying was obligatory so too was being in jail. But Thoreau had no respect for the law per se.

          • gmack says:

            Thoreau’s comment is not really relevant here. Not only did Thoreau not stay in jail (he allowed others to pay his taxes and fines), he also insisted that he had no obligation to actually work to alter the system of laws he objected to. His position was that of the conscientious objector, not the civil disobedient. The difference is this: the conscientious objector refuses to obey laws that make him act immorally; so, for instance, if the law demands that I help arrest a fugitive slave, I, qua conscientious objector, am obligated to disobey the law. However, I am not obligated to try to change those laws (regarding slavery, or the Fugitive Slave Act). Thoreau was quite clear on this point; he insisted that the moral person may have other things to do with his life than get involved in politics, and so morally speaking, the only obligation one has is to avoid allowing the injustice to be done through him or her.

            Civil disobedience, by contrast, focuses not on avoiding injustice but on changing the laws/social systems that lead to these injustices. Civil disobedience, in other words, demands a life of political engagement, as opposed to one of moral purity/political quietism. That’s why the whole question of whether civil disobedience requires one to “accept punishment” is a bit of a red herring. Sometimes going to jail can help change the laws: by overwhelming the system or forcing one’s opponents to exercise public forms of violence, one can dramatize the sheer injustice of the system one is confronting. But sometimes avoiding jail or trying to mitigate punishment might be the better strategy. For the civil disobedient, in other words, willingly accepting punishment vs. trying to reduce or avoid it is a tactical question. I would also add that, at least in theory, most civil disobedients would be perfectly happy not to be arrested (though, of course, they would continue pushing the matter until they either provoked a response or successfully forced the dismantling of all the injustices they were protesting): such a lack of enforcement would mean that they had already won in the sense that the system was now refusing to enforce the unjust laws/practices that are being protested.

            • Barry Freed says:

              Well said.

            • John says:

              The essay is called “Civil Disobedience.” I don’t see how you can argue that it has nothing to do with civil disobedience. And, as I say above, my point was that the idea that civil disobedience involves accepting the legal penalties for your actions is right there in the original articulation of the idea, not something invented “in the 60s/70s.”

              • gmack says:

                And my point is that the arguments at work in this thread about whether civil disobedients must accept punishment rest on a set of conceptual confusions. There is an important conceptual difference between conscientious objection and civil disobedience. Thoreau’s theory and practice is better understood as the former and not the latter.

                For example, Thoreau wrote: “It is not a man’s duty, as a matter of course, to devote himself to the eradication of any, even the most enormous, wrong; he may still properly have other concerns to engage him; but it is his duty, at least, to wash his hands of it, and, if he gives it no thought longer, not to give it practically his support.”

                To my mind, it is impossible to imagine MLK expressing this kind of sentiment; it’s basically the opposite of King’s idea that an injustice anywhere constitutes a threat to justice everywhere. If so, then, I think it’s safe to say that there is an important difference between Thoreau and MLK. They were not in fact arguing or acting on behalf of the same position.

                And of course I know the title of Thoreau’s essay, but if you think I’ve distorted Thoreau’s position, or if you think there is no important distinction between civil disobedience and conscientious objection, then please feel free to make an argument to that effect.

                As to the broader point about whether civil disobedience requires one to accept punishment, I’ll just repeat myself. Civil disobedience, unlike conscientious objection, is a political act designed to dramatize, challenge, and potentially transform unjust systems (just to be clear: conscientious objection is basically a non-political effort to wash one’s hands of injustice, as Thoreau puts it). Precisely how one does this, and how one responds to the system’s efforts to defend itself, is less a principled question than a tactical one. Which is not to say that there are no principles: civil disobedients reject forms of violence, though of course, things get complicated and tricky at the edges. My own view, however, is that accepting the system’s violence, and refusing to resist it with violence, is done primarily because of its tactical effectiveness; there can be tremendous symbolic power in being willing to accept the beatings, the fire hoses, the dogs, and the prison sentences of one’s opponents, for in doing so one illustrates the lengths of violence people are willing to engage in to defend a corrupt and unjust system. One also demonstrates that the existing system is not “natural,” but exists on the basis of violence, and this demonstration can have profound political effects. On the other hand, when dealing with a public that does not care or that supports the injustice, such dramatizations are of little effect, and probably other tactics–though not necessarily violent ones–are probably necessary.

                • Bijan Parsia says:

                  I agree with the distinction between CO and CD (though I’d prefer to see CO as a subset of a more generic kind of CD), or rather, I think there’s a distinction between the motive of clean hands and the motive of change. (These are not necessarily distinct. If a public enough figure goes CO that can have an effect on the public.)

                  However, I’m not so convinced that Thoreau is so clearly on the side of CO per se. Consider:

                  If the injustice is part of the necessary friction of the machine of government, let it go, let it go; perchance it will wear smooth — certainly the machine will wear out. If the injustice has a spring, or a pulley, or a rope, or a crank, exclusively for itself, then perhaps you may consider whether the remedy will not be worse than the evil; but if it is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.

                  This passage, at least, suggests that breaking the law might well effect change but at least shields you from wrong doing. The motives run together. I think the CO aspect is there to keep you from saying, “Oh well, my disobedience won’t change anything, so I won’t bother”, that is, to require disobedience even when change seems unlikely. Now right after this, he writes:

                  As for adopting the ways which the State has provided for remedying the evil, I know not of such ways. They take too much time, and a man’s life will be gone. I have other affairs to attend to. I came into this world, not chiefly to make this a good place to live in, but to live in it, be it good or bad. A man has not everything to do, but something; and because he cannot do everything, it is not necessary that he should do something wrong. It is not my business to be petitioning the Governor or the Legislature any more than it is theirs to petition me; and if they should not hear my petition, what should I do then? But in this case the State has provided no way; its very Constitution is the evil.

                  which certainly feels more in your line, but then:

                  As for adopting the ways which the State has provided for remedying the evil, I know not of such ways. They take too much time, and a man’s life will be gone. I have other affairs to attend to. I came into this world, not chiefly to make this a good place to live in, but to live in it, be it good or bad. A man has not everything to do, but something; and because he cannot do everything, it is not necessary that he should do something wrong. It is not my business to be petitioning the Governor or the Legislature any more than it is theirs to petition me; and if they should not hear my petition, what should I do then? But in this case the State has provided no way; its very Constitution is the evil.

                  and

                  I know this well, that if one thousand, if one hundred, if ten men whom I could name — if ten honest men only — ay, if one HONEST man, in this State of Massachusetts, ceasing to hold slaves, were actually to withdraw from this copartnership, and be locked up in the county jail therefor, it would be the abolition of slavery in America. For it matters not how small the beginning may seem to be: what is once well done is done forever.

                  and perhaps most tellingly:

                  Again, I sometimes say to myself, When many millions of men, without heat, without ill-will, without personal feeling of any kind, demand of you a few shillings only, without the possibility, such is their constitution, of retracting or altering their present demand, and without the possibility, on your side, of appeal to any other millions, why expose yourself to this overwhelming brute force? You do not resist cold and hunger, the winds and the waves, thus obstinately; you quietly submit to a thousand similar necessities. You do not put your head into the fire. But just in proportion as I regard this as not wholly a brute force, but partly a human force, and consider that I have relations to those millions as to so many millions of men, and not of mere brute or inanimate things, I see that appeal is possible, first and instantaneously, from them to the Maker of them, and, secondly, from them to themselves. But, if I put my head deliberately into the fire, there is no appeal to fire or to the Maker of fire, and I have only myself to blame. If I could convince myself that I have any right to be satisfied with men as they are, and to treat them accordingly, and not according, in some respects, to my requisitions and expectations of what they and I ought to be, then, like a good Mussulman and fatalist, I should endeavor to be satisfied with things as they are, and say it is the will of God. And, above all, there is this difference between resisting this and a purely brute or natural force, that I can resist this with some effect; but I cannot expect, like Orpheus, to change the nature of the rocks and trees and beasts.

                  So, I think it’s pretty clear that Thoreau is arguing for civil disobedience and not mere conscientious objection.

      • John says:

        I would say that you are almost never entitled to commit suicide. Certainly not over the prospect of 4-6 months in jail.

        • JonP says:

          I would say that you are entitled to go fuck yourself. Seriously, you’re arguing that killing yourself makes you an asshole? Why not just go for broke and say Swartz was just conducting an asymmetrical paramilitary campaign against the DA’s office?

          • John says:

            Of course killing yourself makes you an asshole.

            • John says:

              To elaborate, it’s a horrible thing to do to everybody who loves and cares about you, and it’s a coward’s way out. Presumably Swartz was suffering from some kind of mental illness that led to his suicide, which mitigates it, but committing suicide is an awful thing to do.

              • Malaclypse says:

                Amazingly, of the many, many friends of Swartz to publicly discuss this, not a single one of them has endorsed this view.

                • John says:

                  I was certainly being an asshole here, and I probably could have phrased my argument more clearly. Suicides generally arise out of mental illness that impedes judgment, and suicides should generally be pitied – there’s certainly no point to being angry with them, or calling them an asshole.

                  But the comment I was originally responding to was one saying

                  “Civil disobedience is risky, and it can go far worse than what you might have expected, but that doesn’t mean that you aren’t entitled to object when it does.”

                  I don’t disagree with this in the abstract. But I don’t think it applies to Swartz’s situation at all. If civil disobedience goes worse than expected, you can certainly object to the injustice of that, and you should take every step you feel is appropriate to fight that injustice. For that reason, if Swartz really felt he was in the right, he would be totally justified rejecting any plea deals and going to trial. And if he lost at trial, he would be justified in continuing to protest that injustice, and the same if he exhausted all his appeals.

                  But none of that gets us anywhere close to saying that suicide is a justified response. Because suicide is basically never a justifiable response. And it certainly doesn’t do anything to advance whatever cause was inspiring the civil disobedience.

                • JonP says:

                  Thanks for apologizing, but you need to completely knock off the judgmental attitude towards suicide,

                  But none of that gets us anywhere close to saying that suicide is a justified response. Because suicide is basically never a justifiable response. And it certainly doesn’t do anything to advance whatever cause was inspiring the civil disobedience.

                  No one is claiming that Swartz’ suicide was part of his civil disobedience. It’s been thoroughly reported that he was struggling with major depression and was an acknowledged suicide risk. It sounds like you’ve been lucky enough never to have to deal with a major depressive episode. Trust me when I say that in such times, you are still afraid of death and fully cognizant of how much pain your death will cause other people. Try to imagine how much pain you would have to be suffering to do that to your loved ones. People don’t commit suicide because they’re cowards or because they don’t understand or care about the consequences of their act. Assigning moral culpability to someone who is seriously ill and taking what they see as a necessary course of action to deal with it doesn’t help. Regardless of your stance on his actions regarding MIT and JSTOR, Swartz was ill, and that illness claimed his life. Show some compassion about that, if nothing else.

            • Most suicides are committed by people whose mental illness cause them to experience extreme mental pain, reduced judgment, and reduced self-control

              That’s a pretty harsh combination. We’re talking about people enduring outsized suffering, with fewer tools to handle it.

  10. Vance Maverick says:

    Wow, this topic reliably brings out the assholes in the commentariat. But of course we don’t need to believe that Swartz’s case was uniquely bad, or that his death demonstrates anything, for the continued focus on him to have persuasive value. The prosecutorial weapon that was so obviously overused here is a genuine problem, and it should be restrained, and the dramatic story of the charismatic victim heightens the obviousness, quite legitimately.

    • sapient says:

      What does that mean? How do you restrain the person who you think should have the ‘discretion” to exercise restraint (or not, depending on her/his discretion)?

      Change the law.

    • lawguy says:

      Yes there is this desire by many to justify this kind of abuse of authority. As Barry says below it appears to be ok to steal billions and it is only a misdeamenor to fix elections.

      So how does one justify what this prosecutor did? By blaming the victim in this case. He should have been prepared for prison because Gandhi was or King was. Therefore, apparently his motives were not pure enough and the prosecutor was at least some what justified.

    • chris says:

      The prosecutorial weapon that was so obviously overused here is a genuine problem, and it should be restrained, and the dramatic story of the charismatic victim heightens the obviousness, quite legitimately.

      Sure, but what does that have to do with hunting the head of the individual prosecutor involved? That won’t fix the system. Ortiz isn’t the problem. The culture of prosecution and giving too much power to prosecutors is the problem. Ortiz is only a symptom.

  11. Jonathan says:

    She might be nominated for promotion to general.

  12. Barry says:

    So far we know that (a) attempting to rig an election is a misdemeanor in Ortiz’ eyes, and that (b) multi-billion dollar bank crimes are not even that.

    This means that everybody who parrots variations of ‘if you can’t do the time, don’t do the crime’ are full of sh*t.

    • spencer says:

      Yes, precisely. Sapient and the others in this thread aren’t addressing that bit at all – an elected official got a slap on the wrists for trying to subvert democracy, and when Schwartz’ lawyer asked for the same deal, they were turned down.

      She thought rigging an election was less serious than stealing academic research. How does that *not* reflect poorly – to say the least – on Ortiz’s priorities, discretion and actions?

      And that doesn’t even address the fact that JSTOR – the entity whose “property” was allegedly being stolen in the first place – didn’t participate in the prosecution. Even the victim recognized that this was some fucked up shit.

      • spencer says:

        Stealing published academic research, I should clarify. It would be a more serious thing if it hadn’t been published, but still nowhere near as serious as election rigging.

      • Chuchundra says:

        What are we supposed to address? I don’t know why Smith got the deal he got. I don’t know anything at all about that case.

        Why you think that a different person getting a different sentence for a completely different crime is somehow relevant to the discussion at hand is beyond me.

        I mean…yeah, I get that you feel that election fraud is a bigger deal than some nusiance hacking charge. I would tend to agree with you. But it’s not the job of a prosecutor to determine the cosmic value of each and every crime and normalize the sentences accordingly.

        • xxy says:

          But it’s not the job of a prosecutor to determine the cosmic value of each and every crime and normalize the sentences accordingly.

          Um, isn’t that the point of having prosecutorial discretion?

  13. Bernard says:

    amazing to see the defenders and accusers of Swartz’s actions. breaking the law and fear of the punishment doesn’t seem to be the only issue here. the length of the punishment, seems to be a major reason for Swartz’s actions/suicide. if Swartz was a suicide rish, Ortiz didn’t use her discretion to modify her actions, lest she lose her “prey.”

    that’s the issue here as well, as to whether Ortiz knew Swartz was “a suidice risk”,. that’s doesn’t speak well of Ortiz’s capacity to know what she is doing or her ability to judge “tangential circumstances. is everything supposed to be so black and white, no shades of gray are allowed here. the possible death of a human for such as “stealing” copyrighted public funded information is the question here.

    a man killed himself while being prosecuted/indicted for a crime of stealing information, if i understand this right. Lest he be sent to jail for 50 years. or some other absurd length of time simply to show the “might” and “power” of the US INjusticed system. lol. The Banks can steal Trillions and do, but copyright infringement is the Holy Grail of stealing, apparently.

    To excuse Oritz because she was just following order brings up the issue of “scapegoating” the weak and ignoring the well connected/powerful”. Passing the buck, that is. no one pays for passing the buck anymore, at least those in power don’t.

    unless that is how and what Ortiz had in mind when she went after Swartz. then Ortiz is just one of many involved in this man’s death.

    • the length of the punishment, seems to be a major reason for Swartz’s actions/suicide.

      Do you mean the 6 month deal he was offered?

      • lawguy says:

        No the felony convictions, the possibility of many years in prison if the judge chose to do so. The refusal to modify the charge to a misdemeanor which had been done for someone who at least tried to steal elections.

        The final fact that this guy was treated in a way that was so much different then all the powerful bankers by this same prosecutorial system.

        • First of all, this is bull:

          the possibility of many years in prison if the judge chose to do so

          Suddenly we’re supposed to stop believing that plea deals exist, because this guy was offered one. Meanwhile, in the very same piece from Blue Mass Group, the writer complains about that “slap on the wrist” that the corrupt pol got, which was…wait for it…a plea deal. Can I get a little consistency please?

          Secondly, do you really mean to argue that the difference between doing six months on a felony plea and doing six months on a misdemeanor plea is the motive force between a suicide?

          And third, dragging in the prosecution of powerful bankers isn’t relevant here, not least because they are usually offered plea deals, which we believe in and complain about.

          • chris says:

            Can I get a little consistency please?

            Until plea deals are actually enforceable, no, you can’t. He was not offered six months in any sense in which he could actually rely on doing no more than six months if he accepted the deal.

            Also, I wouldn’t underrate the harm that can be caused by six months in an American prison.

            • He was not offered six months in any sense in which he could actually rely on doing no more than six months if he accepted the deal.

              Bullshit.

              This is an utterly fact-free assertion with no basis whatsoever in the reality of the American judicial system. You didn’t believe this assertion a month ago, and you wouldn’t believe it today if it wasn’t a necessary part of siding with Swartz.

              We have a number of practicing defense attorneys who comment here. How many plea deals have you negotiated, and how many did the judge not accept?

            • Also, I wouldn’t underrate the harm that can be caused by six months in an American prison.

              A computer hacker with no prior arrests doing a 4-6 month term would serve his sentence in Club Fed (or part of it, anyway, with a month of three of that done in a halfway house).

              There are real problems with conditions in the American prison system, but there’s a reason you don’t hear the ACLU howling about minimum security prisons.

              • A computer hacker that didn’t steal any money, that is.

              • Aaron would have had to have served his time in a maximum security institutions, because he had serious health issues which required facilities not available in the minimum service institutions he could have been sent to. But carry on – far be it for me to stop you bloviating on like an ignorant asshole about a case, person and situation that you know nothing about.

                • Taylor says:

                  far be it for me to stop you bloviating on like an ignorant asshole about a case, person and situation that you know nothing about.

                  It hasn’t stopped him in the past, why should he stop now? He just keeps on bloviating until people get sick and tired and walk away, and then he declares victory.

                  The callousness of some of the commenters on here is quite appalling. The kind of bullying tactics inflicted on someone who at worst was probably guilty of naivete about political protest, while bankers walk away from destroying the lives of millions without even a slap on the wrist, should be an outrage to everyone commenting on this blog.

                • sparks says:

                  I’ve called it then what I call it now, fiendish legalism.

                • Chuchundra says:

                  Forgive me, but I don’t think I’m just going to take your word on that.

                • Aaron would have had to have served his time in a maximum security institutions, because he had serious health issues which required facilities not available in the minimum service institutions he could have been sent to.

                  Link?

                  far be it for me to stop you bloviating on like an ignorant asshole

                  The gap in the quality of argumentation between the two sides here is vast, and getting vaster every time I check the thread.

                  I find that that’s generally a pretty good indicator of the legitimacy of the two sides’ arguments.

                • Malaclypse says:

                  Forgive me, but I don’t think I’m just going to take your word on that.

                  Farrell knew him personally. He is perhaps entitled to claim personal knowledge. And I believe that the word for people who argue with someone who has just lost a friend to suicide, about that very suicide, is “asshole.”

                • Barry Freed says:

                  What Henry said above and Taylor and Malaclypse said below. This is really bringing out the assholes and trolls as well as bringing out the asshole troll in commenters who are normally thoughtful and on the side of the good in these kinds of matters (you know who you are). They should wind their necks in.

                • Barry Freed says:

                  That should be what Taylor and Malcalypse also said (I forgot how these comments threaded).

                • Farrell knew him personally. He is perhaps entitled to claim personal knowledge.

                  A. How is anyone supposed to know that? B. And that personal knowledge extends to the medical facilities available in different levels of federal prisons, how, exactly?

                  And I believe that the word for people who argue with someone who has just lost a friend to suicide, about that very suicide, is “asshole.”

                  If he shows up to argue in a forum, he’s going to be argued with.

                • What Henry said above and Taylor and Malaclypse said below. This is really bringing out the assholes and trolls as well as bringing out the asshole troll in commenters who are normally thoughtful and on the side of the good in these kinds of matters (you know who you are). They should wind their necks in.

                  If you want to mourn, go do it quietly. If you want to argue, people are going to argue.

                  Your choice. Throwing around insults when you try to argue but can’t do it very well isn’t going to cut it.

                  Does that make you dislike me? I don’t care.

                • Tell ya what, Barry: go back and count up the personal insults, deflections from the facts of the case, and profanity, and let us know who, exactly, is acting like assholes and trolls.

                • Bijan Parsia says:

                  Aaron would have had to have served his time in a maximum security institutions, because he had serious health issues which required facilities not available in the minimum service institutions he could have been sent to.

                  Without wanting to cause pain or engage in the tussle, I’m not sure I understand this point. Are the medical facilities better in higher security prisons? Or are you referring the (retrospectively critical) need for suicide prevention?

                  If it’s the former, it seems like that would be an argument for an even lighter sentence.

                • Malaclypse says:

                  A. How is anyone supposed to know that?

                  By knowing enough about Swartz to know that he knew a lot of people, more than one of whom comments here. Really, when “I don’t know fuck-all about the dude” is your defense, perhaps it is time to not feel the need to be Right On The Internet about this particular topic.

                • Barry Freed says:

                  Many are acting thoughtlessly and ghoulishly. Aaron was known and loved by many. And admired by many many more. He had his faults and was no saint but he was a real force for good in the world with real accomplishments that made people’s lives better and he was capable of so much more. This was needless and stupid waste.

                  I offered a link below that argued particulars of the case:

                  http://www.thepublicdomain.org/2013/01/18/the-prosecution-of-aaron-a-response-to-orin-kerr/

                  Here’s another one from the expert witness for the defense in this case:

                  http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/

                  There’s more of the same out there, it’s not hard to find.

                  (And telling me and others how to mourn is fishing for insults don’t you think?)

                • That is a really stupid argument, Mal. “He knows a lot of people?”

                  I’m supposed to not ask this commenter for back up of his facts, because “He knows a lot of people?”

                  I think you’re letting your emotions get in the way of your thinking, because that doesn’t make any sense.

                • I offered a link below that argued particulars of the case:

                  Unfortunately, it’s not a link containing evidence that backs up the assertion that only maximum-security federal prisons have advanced medical facilities, and that Swartz would necessarily have to have been sentenced to one.

                  And telling me and others how to mourn is fishing for insults don’t you think?

                  Get your events in the right order. The people with nothing to say except insults came first.

                  If you want to mourn by arguing on the internet, that’s up to you, but if you do, other people are going to argue, too.

                • JonP says:

                  Tell ya what, Barry: go back and count up the personal insults, deflections from the facts of the case, and profanity, and let us know who, exactly, is acting like assholes and trolls.

                  Setting aside profanity and insults (which, to be fair, aren’t unreasonable when someone is being a colossal dick), asking people to go back and actually check to see who’s deflecting and refusing to engage undermines your case here. You’ve made one substantive point about the plea offer and spent the rest of the thread pretending that no one else here, even those with personal knowledge of the case and the people involved, understand, well, anything. I’ve been lurking here for a while now, and I’ve never seen such a show of bad faith from one of the regulars.

                • JohnP,

                  There is nothing in your comment except anger that I disagree with you.

                  Grow up.

                • JonP says:

                  More of that compelling evidence for your position, right there. After claiming that you are the only one using reason and evidence while your opponents have only insults, this is the kind of comment you keep leaving. You should probably stop while you retain some modicum of credibility.

                • “Can you back that up?” is not a “position” for which one requires evidence.

                  I can’t help but notice that evidence for the position that was actually asserted – He would have spent his sentence in maximum security – is still not forthcoming.

                  Just personal insults, changes of subjects, and guilt trips.

                  That is generally not a good sign.

                • JonP says:

                  I’ll certainly grant you that Farell did not provide you with the specifics of his friend’s medical history, so in so far as that is evidence of dishonesty (protip: it’s not), you have a point. The bit about where he would serve his sentence, however, is hardly the sum total of your participation in this thread, and you have repeatedly been mocking, rude, and condescending, which is fine is fine on an Internet discussion, except that then you start tone-trolling everyone else and using that as evidence that you are the only reasonable, rational adult in the room.

                  You’re defending a shitty, politically-motivated prosecution for no other reason that I can see except trolling the shit out of people who just lost someone they cared about (I never knew, or prior to the JSTOR thing had even heard of Swartz, so I’m not counting myself in this). This is the definition of assholery.

                • You’re defending a shitty, politically-motivated prosecution for no other reason that I can see except

                  I’m not defending the prosecution; I’ve repeatedly described my position as “agnostic.”

                  Nor did I accuse him of dishonesty; I asked him to prove his assertion.

                  ” for no other reason that I can see…”

                  Your inability to understand anything except your emotions is why I’m done with you.

                • JonP says:

                  Again, you’re the one deflecting. You may not have explicitly accused anyone of dishonesty, but you’ve been implying that the reason that Farrell, et al don’t provide evidence for their claims is that those claims are false. I’m not sure why my emotional state is of such interest to you (I mean, except for the obvious attempt to paint yourself as the lonely voice of rationality), but whatever. You may not be a full-throated supporter of the prosecution, but by consistently disagreeing with (and attacking) those who are against the prosecution, you are certainly defending it.

                  I’m honestly not all that worked up (colorful, forceful language is relatively common on the Internet, in case you were unaware of that tradition), but I’d rather be a hysterical wreck than a disingenuous hack.

                • Barry Freed says:

                  JonP has been one of the most objective and dispassionate commenters on this thread.

                • Setting aside profanity and insults (which, to be fair, aren’t unreasonable when someone is being a colossal dick) – JonP

                  You’re defending a shitty, politically-motivated prosecution for no other reason that I can see except trolling the shit out of people who just lost someone they cared about (I never knew, or prior to the JSTOR thing had even heard of Swartz, so I’m not counting myself in this). This is the definition of assholery. – JonP

                  I’d rather be a hysterical wreck than a disingenuous hack. – JonP

                  JonP has been one of the most objective and dispassionate commenters on this thread. – Barry Freed

                • JonP says:

                  It’s all relative, dear.

                  Joe, at the risk of endangering my status as objective and dispassionate, pointing out that those who disagree with you have emotions isn’t the devastating rhetorical move you seem to think it is. It just makes you sound like a 16 year old Objectivist.

          • Jeremy says:

            So, because a plea bargain exists that would still involve him being a convicted felon and serving time in prison, the prosecution is relieved of their responsibility to actually prove that he committed a felony? The prosecution gets to decide what the correct sentence ought to be and whether the defendant is guilty, then can just lard on the charges so that the defendant accepts it rather than taking the case to trial?

            It sounds like this strategy is basically to break down the defendant’s will to fight their case, and you’re OK with that as long as you think the plea bargain is a fair one. And let’s all blame the defendant for being broken by a concerted effort to coerce him into accepting a plea bargain.

            • So, because a plea bargain exists that would still involve him being a convicted felon and serving time in prison, the prosecution is relieved of their responsibility to actually prove that he committed a felony?

              Er, yes, Jeremy, when a defendant pleads guilty, it relieves the prosecutor of having to prove their case. That’s what a guilty plea means.

              The prosecution gets to decide what the correct sentence ought to be and whether the defendant is guilty, then can just lard on the charges so that the defendant accepts it rather than taking the case to trial?

              If there is actually a chance that the prosecutor won’t be able to prove her case at trial, then the prosecutor doesn’t get to “decide what the correct sentence ought to be,” because the prosecution has a motive to deal in order to avoid a trial as well.

              • Jeremy says:

                “Er, yes, Jeremy, when a defendant pleads guilty, it relieves the prosecutor of having to prove their case. That’s what a guilty plea means.”

                But no plea exists. An offer was made. I’m not convinced that Aaron committed a felony. I don’t think he believed he committed a felony. But the only offers made involved him pleading guilty to every charge.

                So, his options were to take the plea bargain, admitting guilt on several felony charges of which he believed himself innocent, or taking the case to trial, most likely having burned through all his finances by the time the trial even started, hoping to be acquitted, but facing decades in prison if convicted. The prosecution used an extraordinary amount of pressure to get him to take the plea bargain, admitting guilt to several felonies, rather than take the case to trial and prove it.

                Sure, “the prosecution has a motive to deal” to avoid a trial. Their method of “dealing” involves massively overcharging the defendant to move the deal in their favor. It seems that the pressure they applied was enough to keep the case from going to trial.

                • Richard says:

                  His finances hadn’t been exhausted. The best attorneys in the country were representing him for free. He wasn’t facing decades in prison. His attorneys contend that the prosecutors were claiming seven years was the top under the sentencing guidelines even if convicted on all counts

                • Jeremy,

                  I don’t understand what it is you don’t understand. You wrote, “So if a plea bargain exists, the prosecutor is relieved of having to prove guilt?” If a plea bargain exists, and the defendant pleads guilty, then the prosecutor does not have to prove anything. If no plea bargain exists, then the case goes to trial, and the prosecutor has to prove guilt.

                  We both seem to understand this just fine. I don’t know what you’re arguing about.

                  I get your point about “massive overcharging” (though I’m agnostic whether it applies here), but this diversion into what a prosecutor has to prove when appears to be a dead end.

                • Jeremy says:

                  I’m pretty sure that Henry won’t be by to swear at me for saying that “the costs of the defense burned through pretty well everything he had,” which seems to be a better cite than the nothing that Richard had to back up his contrary claim.

                  As for the point I’m trying to make, I just think that the people who think Aaron ought to have taken the plea deal, and that it wasn’t a bad deal, are assuming that he’s actually guilty. It’s not clear to me that the prosecution’s theory of the case was correct, or that a jury would be swayed by such a broad interpretation of the CFFA. So, it’s hard for me to fault Aaron for not accepting a plea deal that would involve admitting guilt to multiple felonies.

                  I think I’m just largely against a justice system that puts the power to determine guilt largely in the hands of prosecutors, rather than judges and juries. I suppose that’s the least unique aspect of the case. But it really does seem that the prosecution used a lot of pressure to get the results they wanted without a trial, pressure which was unfortunately more than Aaron could bear.

                • John says:

                  If he wasn’t guilty and didn’t want to take the deal, he should have taken it to trial. I’m not sure I grasp the argument that suicide was a reasonable response to what happened. If he didn’t want to take the heat of a trial, he could take the plea. If he wanted to stand by his principles, he could go to trial. These are two viable options, although a difficult choice, certainly. But I don’t see how one can argue from this that Ortiz was hounding him to death by demanding decades of prison time.

          • DocAmazing says:

            do you really mean to argue that the difference between doing six months on a felony plea and doing six months on a misdemeanor plea is the motive force between a suicide?

            Do you know the difference between “jail” and “prison” and the conditions likely found therein? For that matter, do you know the difference between “probation” and “parole”?

            • Richard says:

              This was a federal crime. If he was sentenced to six months as either a misdemeanor or a felony, he would most likely do it in a local federal incarceration center. If he got more than a year, he was most likely to do it in a minimal security federal prison. Any inmate will tell you that he would choose the latter over the former.

              If he had accepted the plea, he would have been put on probation for a couple years at least. A condition of probation is always that you don’t violate any laws. So if he did this again, he could have been sentenced to the full term on the original plea. I dont know if that was the reason he rejected the plea but it very well could have been given his belief that what he did was the right thing to do.

              We simply dont know and will probably never know why he committed suicide.

              • DocAmazing says:

                Yeah, it’s not like he was under any stress or anything.

                • Richard says:

                  Everybody in the criminal justice system is under stress. The stress undoubtedly contributed to his decision to take his own life. But there would have been stress even if he had been charged with a simple misdemeanor. Criticize Ms. Ortiz for overcharging (which is common in our criminal justice system). Dont accuse her of murder. And dont claim that the threat of a thirty year sentence caused him to take his own life since there was never any threat of a thirty year sentence and his own attorneys believe that the prosecutor only claimed that the maximum in this case under the guidelines was seven years

                • DocAmazing says:

                  Fine. Kick Ortiz’s ass to the curb for overcharging, which contributed to Swartz’s stress, and, in all likelihood, to his suicide.

                  Next case.

            • Yes, Doc, I know both those things.

              In all of the time you have tried to use this little technique of asking stupid questions like this to avoid having to try to argue your point, you have yet to stumble upon a term whose definition I did not know.

              So what?

              If you want to argue something, go on with your bad self. I’m not going to do your work for you.

      • spencer says:

        Do you mean the 6 month deal sentence they offered to recommend, which was by no means guaranteed to be accepted he was offered?

        FTFY.

        • So which is it, spencer?

          Is Ortiz some hardass who was going way overboard in her prosecution, or is she some softie who offered up a plea deal so incredibly lenient that the judge would have taken the extremely rare action of imposing a harsher sentence than the one the prosecutor agreed to?

          Just because a write at the Blue Mass Group chose to contradict himself in the same article on the subject of the plea deals doesn’t mean you have to shut off your brain.

          • david says:

            What contradiction? She bullied somebody over something stupid, probably to advance her career. Nobody’s saying plea deals are or are not useful things, they are saying that using bullshit charges to get the most punishment for something like this, rather than for stealing billions and blowing up the economy, or for rigging elections, is the sign of poor judgment, and a suspicion that she did it because it’s easier to beat up on the powerless than to take on the powerful. The contradiction you’re looking for is a way for you to avoid the subject.

            Of course bringing up bankers is relevant. The fact that they are not prosecuted, or when they are are given absurdly light sentences, is precisely the point. Whether or not that comes in the form of a plea deal has nothing to do with it.

            This whole “there was too a deal!” line of defense is silly. So what? Thanks to this poor kid’s suicide I manage to pay more attention to (yet another) example of a prosecutor who seems to pay more attention to headline-generating bullying that he or she should.

            We should acknowledge that in the particular case, and go on to: one, do what we can to make prosecutors use better judgment and not act like dicks; two, advocate for a system which prioritizes actual harm and does a better job of going after actual harm than standing up for moneyed interests.

            There is nothing hard about this case.

            • What contradiction?

              She refers to the crooked pol accepting a plea deal as “a slap on the wrist,” and accepts the existence and reliability of such deals as an unremarkable part of the criminal justice system, and then dreams up this fantasy that the judge would have rejected the plea deal offered to Swartz, trying to bootstrap the phrase “no guarantee” into a statement that the deal wasn’t reliable.

              That contradiction.

              using bullshit charges to get the most punishment for something like this

              Huh? She tried to get four months. That’s “the most punishment” for something like this?

              The fact that they are not prosecuted, or when they are are given absurdly light sentences, is precisely the point.

              I guess that depends on the point. It has nothing to do with any point related to Ortiz’ actions being too harsh, though.

              This whole “there was too a deal!” line of defense is silly. So what?

              So the entirety of the case-against-the-case-against-Swartz relies upon the assertion that he was facing an overly-harsh punishment.

              There is nothing hard about this case.

              No, there isn’t. You’re just making it appear so by leaving out, or making up reasons to ignore, many of the relevant facts.

              • Angry Geometer says:

                “She tried to get four months. That’s “the most punishment” for something like this?”

                No, dumbass. She tried to get 35 years.

                Are you actually this stupid or are you just trolling?

                • Richard says:

                  No she didn’t try to get 35 years. She never asked a judge to give Swartz 35 years. The sentencing guidelines would never have allowed a judge to give that. She wouldn’t have asked for 35 years at sentencing even if he had been convicted of all the charges. By charging crimes that carry a MAXIMUM sentence of 35 years, a prosecutor is NOT trying to get 35 years. The statute charged calls for a minimum and a maximum but if you, as a prosecutor, believe the acts fall within that statute and charge accordingly, you are not trying to get the maximum. And you’re accusing someone else of being stupid?

                • No, dumbass. She tried to get 35 years.

                  By plea-bargaininig? You don’t have any idea what you’re talking about, do you?

                  The continued hysterical, fact-averse stupidity of one side of this argument is doing a good job of helping me make up my mind about this case.

              • david says:

                The deal was offered in the context of the prosecutorial overcharging. That is the relevant fact you avoid. Which side are you on isn’t always the best calculus, but you’re on the wrong side, zealously defending overzealous prosecution.

                • John says:

                  If, as has been contended here, Swartz’s own lawyers were saying he faced a maximum of 7 years or so if convicted on all charges, I don’t see how anyone gets off saying he was facing 30 years.

                • The deal was offered in the context of the prosecutorial overcharging.

                  The “overcharging” was done in the context of the defendant refusing to admit his guilt. That’s the relevant fact you’re avoiding.

                  Nobody was trying to get this kid put away for 35 years.

                • None of us knows that until it happens. And now of course it will never happen.

                  Undercharging or overcharging, it was an injustice. Aaron tried to do a good thing and the fallout was more than he could handle and it is sad.

                • JonP says:

                  The “overcharging” was done in the context of the defendant refusing to admit his guilt. That’s the relevant fact you’re avoiding.

                  So now prosecutors using the threat of absurdly long sentences to coerce people into making pleas when they don’t believe they’re actually guilty isn’t a problem? And you accuse others of bad argumentation…

                • Did you feel a whooshing sensation on your scalp when you read my comment?

                  So now prosecutors using the threat of absurdly long sentences to coerce people into making pleas when they don’t believe they’re actually guilty isn’t a problem?

                  Kindly stop inventing positions to assign to me.

                  You should go back to lurking.

                • JonP says:

                  Perhaps you wouldn’t mind elaborating on how your words don’t mean what they say?

                • I’ll put all of the effort into the task of clearing up your confusion that your comportment towards me so far warrants.

                  Stay tuned.

                • JonP says:

                  I’ll take your efforts to deflect through tone-trolling as a confirmation of my original reading. Thanks for clearing that up.

                • You take whatever you want, however you want.

                  I’m done with you.

                • JonP says:

                  You keep saying that. I’m not sure it means what you think it means.

          • Richard says:

            All pleas with jail maximums are subject to consent of the judge. If the judge disagrees, the plea is set aside. If it was a deal with only a recommendation for a sentence, his attorneys would have known whether this judge was likely to accept the recommendation or not. They almost always do except in cases where there is a lot of anti defendant publicity which is not this one. There is nothing unique about the plea offered here. I think he should have been offered a misdemeanor with probation but its hard to believe that the fact of a felony conviction was what caused him to take his life. Also it’s not at all clear that this was the prosecutions final offer. Plea deals are often struck on the morning of trial especially, as here, when he was being represented by the best and most expensive trial lawyers in the country ( who were defending him for free)

  14. We have a number of defense attorneys who read this blog. I believe we have one who writes for it.

    Counsellors, how many plea deals have you negotiated in your careers? How many of those have been rejected by the judge?

    • Richard says:

      I practiced criminal law for four years before moving to civil litigation. During that time, primarily representing drug dealers and mafia people, I never experienced a single plea bargain rejected by a judge

      • Out of how many? Ballpark figure.

        • Richard says:

          Had about fifty negotiated pleas during that time. Some were not subject to veto by the judge but its been so long that I can’t remember the percentage. But from my experience and the experience of friends, some of whom have been practicing criminal defense for over thirty years, it is extremely rare for a judge to not go along with the prosecutor’s recommendation in a plea bargain

    • djw says:

      For the record: unless there’s a double life I don’t know about, there is no defense attorney writing for this blog.

      • Richard says:

        Thats correct. Scott teaches political science although he is certainly very well informed on legal issues and Paul, while a law school professor, has denied that he is a lawyer (although he possesses a law degree).

    • I can’t help but notice that the evidence for the proposition that prosecutors’ plea deals are unreliable has not been forthcoming.

      Draw your own conclusions.

      • rea says:

        JFL–prosecutors can plea bargain, but not sentence bargain, because the judge has to follow the rules controlling sentencing. Any “sentence barain” is necessarily contingent on the judge going along (and being allowed by the sentencing rules to go along).

        • RedSquareBear says:

          If this is the which case it seems misplaced to fault Ortiz for the defendant committing suicide (it seems misplaced to fault anyone but the defendant, but that’s another issue) since, by all indications, she was content with the 4 to 6 months.

          Does anyone have anything like an indication that the judge would have sentenced above the recommendation?

  15. Lanny Davis says:

    My sympathies in this case are completely on the side of the prosecutors, especially Ortiz, who only wanted Swartz to spend four months in prison for inconveniencing MIT. This penalty seems fairly minor for a civil disobedience activist, even a sensitive depressed genius-like character, to serve, and the fact that this hard-line approach was being enforced by Dem-appointed prosecutors only shows how our side of the aisle can be depended upon to follow the letter of the law. When Heymann was notified that the defendant was suicidal, he even offered to take him into custody so as to be put under watch. These are public officials under duress performing at their finest. I believe had the case gone to court Swartz may in fact have won. He was being represented by a fine firm free of charge (not something I’ve ever done) and I wish he’d had the strength of character to see it through. I have much more to say on this issue, but President Gbagbo has just called about some pressing legal problems as well. So I’ll leave you with this. Fight the good fight, but recognize there’s a little bit of idealism on every side.

    • sapient says:

      four months in prison for inconveniencing MIT

      Although there is a movement to take publishers out of publishing, for the time being most electronic publishing takes some effort and expense to accomplish. This is done by editors, technical people, etc., who bring home a paycheck to their otherwise starving families.

      Even the mathematicians who want to take publishers out of publishing agree that their efforts will cost a significant amount, to be borne by those reading the publications.

      If information freedom fighters want to liberate content, who will pay the starving former editors and publishers (whose work has been, in part, captured in the freely distributed content).

      I mean, this is the problem, folks: JSTOR and MIT aren’t monopolistic capitalistic corporations like Reed Elsevier. The information already was quite accessible. Isn’t there even a tiny argument for allowing people who publish and maintain information to protect their right to compensation by asking people to comply with reasonable terms of use? Isn’t it a fairly dangerous prospect for a substantial number of people if information in these databases (which has already been formatted and digitized, with great trouble) is presented on the Internet for free?

      This really isn’t only about inconveniencing MIT.

      • Lanny Davis says:

        If JSTOR was being hurt so severely, one wonders why they declined to pursue their own action against Aaron and why they asked the government to drop its? MIT, however, did not take the high road and, along with the government, apparently believes that legal theories which criminalize a wide variety of activities in breach of terms of service should be strictly enforced, activities that have been committed by nearly every quasi-sophisticated network user at some point in time.

        • sapient says:

          Not every quasi-sophisticated network user has a purpose of breaking down paywall access to proprietary information. And just because a crime victim doesn’t want to go forward with a prosecution doesn’t mean a criminal shouldn’t be prosecuted. In this case, the “crimes” (if they had been proven) wer not merely against JSTOR or MIT, but against the people of the United States, whose citizens have an expectation that if they go into the business of information aggregation, their right to compensation won’t be ruined by information freedom hackers.

          Obviously, there are a lot of people who don’t think that Aaron Swartz’s behavior should have been classified as crimes (assuming that the case was proven). But these laws are on the books. It’s not the job of the prosecutor to ignore them: it’s the job of people who feel that the laws are unjust to demand change from Congress. Have you written to your Congressperson lately about these laws? I thought not.

  16. Barry Freed says:

    Ladies and gentlemen, this is what a head on a stick looks like.

  17. Eli Rabett says:

    Ortiz killed Mozart. Eli is pissed.

  18. rea says:

    The lesson that ought to be learned form all of this is not that Ms. Ortiz was particularly awful, but that this is how our criminal justice system works. It’s a meat-grinder. It’s wrong at such a fundamental level that it’s hard to imagine successfully fixing it.

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