> I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case.
That's why you assign investigations to independent entities, and that's why butchers aren't allowed to do their own health inspection.
Whether it was appropriate or not is not for Carmen Ortiz to say.
"The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases."
Is in direct conflict with Aaron's lawyer's account of the run up to last Saturday as well as other statements issued earlier, she may come to regret those words if he has documentation to prove his side of the story.
Aaron's lawyer claims they were threatening just the opposite if he did not take a guilty plea.
In particular:
"At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law."
Is a falsifiable claim. I'm looking forward to Aaron's lawyers' response to this statement.
> "At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law."
> Is a falsifiable claim. I'm looking forward to Aaron's lawyers' response to this statement.
I agree with previous posts on the matter, which argued that the system of insane maximum penalties + plea bargaining is the modern, "civilized" version of inquisition, i.e. producing guilty pleas under the prospect of torture.
If you translate Carmen Ortiz' statement to "At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – to break the defendant's kneecaps" (translation, not equation!), you may get a better idea of why her claim may be absolutely accurate, and still entirely missing the point.
Of course they will threaten him with it but did he really think, or did his lawyers really tell him he would serve long years of hard time?
I wonder if he ever considered the fact that even if he did serve time, he would always be seen as some kind of folk hero who would have been welcomed with open arms by all his peers upon release. It would have been a situation of him, all his peers and everyone he respects against the system, which imho is not that bad a situation. Still a much better situation than for example the one Assange find himself in.
If you look at other cases, from the Pirate Bay to Wikileaks, you'll see that there are always options. Aaron didn't see any. I'd find it almost disgusting to make a judgement. Abstract reasoning can completely break down when you're facing a concrete, threatening situation. And the prospect of becoming "some kind of folk hero" may look very different if that's supposed to be you.
One. It is a very serious mistake to deny someone the right to believe the correctness of their own opinions.
Two. People use leverage. They may or may not use it rightly but they do use it. Anyone who cannot set their opinion of the justice of that to one side, and get on to the business of the contest at hand, is not cut out for politics. Such people enter these contests at a great disadvantage and risk getting hurt.
If you cannot fight with your head then you really should not fight at all. You will very likely lose. You might get hurt, and you might get hurt badly. Politics ain't beanbag.
Three. If you think an attorney able to rise to the position US Attorney will be caught in a "falsifiable claim" on a matter of this prominence then you simply do not understand what you are talking about.
Ortiz is an Obama Administration appointee who wants to run for the Massachusetts governorship. She's making this argument to try to salvage her political career...it isn't a courtroom argument and it will be easy for her to trip up, she doesn't understand the dynamics of this firestorm.
As a foreigner (French) I'm surprised that Americans apparently don't get that mixing a career in politic with a career in justice is the open door to abuse, demagogy or conflicts of interests. This should not be allowed or even possible.
We understand it some. It is very, very rare for a judge to join the legislative or executive branches. I can't think of an example at all.
However, people moving between legislative and executive branches of the government is pretty common. State legislators become governors, governors become federal legislators, federal legislators run for president.
In the US, prosecutors are part of the executive branch. That's because their job is to represent the state. They are supposed to seek justice, but in the context of an adversarial system. Judges are nominally neutral umpires; prosecutors battle with defense attorneys. Both sorts of attorneys are expected to fight vigorously but fairly for their side. So the burden of fairness mainly falls on the system and the judges, not the partisans on either side.
But yes, that does produce a conflict of interest when deciding what crimes to prosecute. They have an incentive to pick cases that benefit both the state and themselves.
It is indeed very different than the rest of the world. In US, not only careers in politics and judicial system often mix, but often career in the judicial system IS career in politics directly. Many of the high level positions, district attorneys, judges (not federal) are elected positions, hence by definition political.
Note that the UK government is currently in the process of adopting such policies. If they're successful, look for this sort of arrangement to be proposed in other European countries as "reforms".
I didn't like the sound of that when I first heard about it. Now I am dead set against it. Politics and the justice system have no business being connected like this in any way.
The system is so horribly compromised in the US it's hard to see how it can be meaningfully fixed. What a mess.
> If you think an attorney able to rise to the position US Attorney will be caught in a "falsifiable claim" on a matter of this prominence then you simply do not understand what you are talking about.
Some choice samples: Nixon: I'm not a crook. Oliver North lying to congress and many many others besides.
Officials at all levels make falsifiable claims all the time and sometimes they trip themselves up. Ortiz is under extreme pressure at the moment and very likely to trip herself up.
Actually, email was exactly what tripped up Oliver North.
Even getting rid of incriminating emails is worse than keeping them for inspection. North and John Poindexter (sp?) exchanged emails, deleted them when they realized they were in hot water and those emails were subsequently recovered.
> One. It is a very serious mistake to deny someone the right to believe the correctness of their own opinions.
This becomes very tricky when you have the power to enforce your opinions on other people.
I think that knowing the letter of the law is not enough and people who work as judges or prosecutors should also have profound sense of justice - without it, any law can be twisted and tortured into unjust persecution when there is a will. Even the best humanly possible law is not immune to that. It's always easy to find a stick when you really want to beat the dog.
The way I see it, if Cameron Ortiz were to prosecute herself the same way she apparently prosecuted others, she would be facing death penalty right now. But I'm sure she would be offered some 'acceptable' deal.
In the we live in the real world sense, absolutely.
The US gets to enforce US law around the world because they have more guns. You'll notice that when the USSR was around there were a group of countries with a vastly different system because the USSR had enough guns to force the people of those countries to play along.
The International Criminal Court is an even better example, the US is not a signatory to the ICC but can recommend other non-signatories to be prosecuted by the ICC while at the same time denying the ICC rules apply to the US.
Might absolutely makes right because those with out might are unable to enforce their decisions. Ortiz lives by politics she can die by politics, I'm sure she's experienced enough to realize the realpolitik ways of the world. She's no innocent bystander in the corruption of the American justice system.
It's never new information. Reality has been a harsh, harsh mistress for decades and decades now.
It's what makes debating with ideological idealists so contentious IMO. There's no way to convince them to settle for anything other than "what's right", even if the only way to get to that state is to first settle for gradually less-wrong states in between.
Even RMS had the pragmatism to start developing GNU on a proprietary OS with proprietary tools.
You cannot overcome Might by convincing it to be Right. Not reliably.
You overcome Might with Might. If you are Right, that actually increases your strength. But you still have to win. You still have to fight. That means strategy and preparation and readiness for loss.
Anyone thinking anything else isn't thinking, they're dreaming. They're going lose, and the higher the stakes the more they'll get hurt.
Which brings even more headaches when it comes to US (hegemonic) supremacy. Who would disempower them? What would they replace it with? The sort of people who could responsibly do this are not the sort of people who would push it forward with enough force to do it successfully.
> Nothing in the wire fraud statute or the cases construing it provides constitutionally adequate notice that manipulating IP addresses, spoofing MAC addresses, and gaining access to a free electronic communications network (MIT's) for the purpose of accessing another website to download journal articles which are free to those with access to the website, and for which access MIT had already paid, constitutes a federal wire fraud felony carrying a potential penalty of 30 years.
> Defendant's research has located no reported wire fraud case which is even remotely comparable to this one.
The defence lawyers may have been talking in hyperbole but they had some reason to believe that it was potentially 30 years. Perhaps because they had heard nothing to contradict that impression.
It's probably just legalese that refers to the case being closed, but the placement of the all-caps word right under Aaron's name sent a chill down my spine.
Heaven forbid when someone 'kill's the Apache instance on aaronsw.com...
EDIT: Sorry, this might seem a bit harsh/shallow, but it was my attempt at pointing out that there is a reaction here that is, in parts, bordering on the hysterical - to use the parent example, "I'm sure the use of 'terminated' is probably just legal terminology"... as opposed to what, "Yeah, we got him, target terminated"?
The statement says as much: "Ultimately, any sentence imposed would have been up to the judge". However, it's a little bit of a stretch to say that the prosecutors were seeking 30 years from the statement (there may be other statements that give information to the contrary).
The prosecutors piled charge upon charge. If they didn't want 30 years, why pile on so much? If they wanted 6 months, they could have stuck with a charge whose sentencing wasn't so extreme.
They pile on charges so that they have options. They will throw every possible thing they can think of at you and all they need is a couple things to stick and they have their win. They can drop some during negotiations to appear to be working with you. If they come at you with one single charge, you have a greater chance of finding some technicality that gets you out of it. Defending yourself against one accusation is far easier than defending against 10.
Double jeopardy (the U.S. Constitutional guarantee against being charged with the same crime twice) basically requires that the prosecutors bring every viable charge that they feel they have the evidence to support for a given single crime.
The flip side to this is that sentences are normally given concurrently, or simply based on the most serious charge actually found guilty of during the trial.
Does some other body write laws? It's 100% justified to criticize congress if you actually want to change things; a prosecutor can only prosecute for violations of the law.
Prosecutors routinely use their own discretion in both deciding what to prosecute, and how severe of a sentence they will pursue. To say "Hey, the law is the law, I'm just doing my job by enforcing it" denies this reality, and serves to remove her own agency from her actions.
Six months in a minimum security jail seems perfectly reasonable to me for repeatedly breaking the law and in no way some sort of "overreach" or "witch hunt". Her job was to find a settlement acceptable to both parties.
In fairness to the prosecution, pushing for the same exact sentence that the defendant refused to accept on a "gracious" plea bargain is poor economic policy. If the plea bargain sentence is really sufficient then there needs to be incentive to take the plea.
7 years is far less than the maximum sentence so she's still correct in saying they didn't push for the maximum (pending other evidence that might come out).
Not doing it is poor strategy, yes, but that doesn't mean that we have to accept it as good public policy. I found the recently posted paper on the German system enlightening: http://news.ycombinator.com/item?id=5059044
The point is what should not be the punishment, namely locking him up with actual violent criminals, thus in turn subject to actual violence, rape, etc.
Your comment is correct, but it is incomplete and avoids the real issue with "actually changing things".
"Actually changing things" may involve "criticizing congress" but I expect it to be rather more complicated. I think that all of the players in this case should have exercised discretion. The fact that so many people (including the citizens of America) allowed this situation to occur is the tragedy.
I think that the Aaron Swartz tragedy is not an example of an acute failure in America's legal system that we can blame on any specific element: the prosecutor, the congress that passed the law, or the court system that allowed this legal case to proceed as long as it did. I think the legal case is an example of a complete breakdown of America's legal system. In America we have 3 general wings of government that all have a hand in the legal system:
Legislative (e.g. Congress) that writes the laws.
Executive (e.g. prosecutor) that prosecutes potential violations of the laws
Judicial (e.g. the court and judge) that decides whether potential violations of the law are actual violations
I think we can justifiably criticize Ortiz and congress and the judge and Aaron and The American People for their roles in this mess, and I expect that all of them will need to improve before the situation does.
All of the players had opportunities to exercise good judgement and they all failed when presented these opportunities.
> I think we can justifiably criticize [snip] Aaron [snip] for {his role} in this mess
Thank you! I think this is the first time I have read a comment on HN about this whole mess that actually puts some of the responsibility back on Aaron. He had several opportunities to exercise good judgement. Like the first time he had to alter his virtual appearance to regain access after he had been discovered and cut off. They didn't yet know who it was. That was a huge missed opportunity right there. It all would have been over.
Huh? She's talking about the fact that people claim her office was dangling 35 or even 50 years in jail over Aaron's head. But her office had extended a deal to Aaron which would involve only 6 month's jail time. They had even been open to one that involved no jail time, and JSTOR agreed but MIT did not. (Not that MIT can just tell the DA what to do, but if the DA presents a deal to the judge, and MIT doesn't back them up, that's more likely to be amended by the judge.)
He's not Godwinning this at all. Claiming superior orders is exactly what the Nuremberg defense was all about, it is simply an accurate association. Just because something happened in relation to WWII does not automatically mean that any reference to it invokes Godwin's law, that's for inappropriate comparisons. This one is entirely appropriate as far as I can see.
It is actually, because unlikely though the name may seem to you the Nuremberg defense is actually a lot older than WorldWar II and was historically invoked for lots of other things besides war crimes. The fact that during the Nuremberg trials it was used so frequently that it got named because of them does not detract from this.
Sure. But what Ortiz is pulling here is not a Nuremberg Defense ("I was aware of the injustice, but my hands were tied"). She clearly states that she's completely fine with "severe punishment" in "appropriate cases", just that with regards to Aaron, it seemed somewhat inappropriate to her and her office. (I agree that her role, and the role of her office, in Aaron's prosecution suggests the exact opposite, but that's an entirely different question.)
I agree that her role, and the role of her office, in Aaron's prosecution suggests the exact opposite, but that's an entirely different question.
It isn't, though. That she comes out with this attitude afterwards is absolutely self-serving and cannot be relied on as an accurate description of her motivations. The "hey, well, that was just the press release" claptrap should be completely disregarded as a mitigating rationale for the ass-covering bullshit that it is.
This leaves us with the "hey, Congress passed these laws, don't look at me," attitude that, as Jacques astutely points out, removes her agency from her actions.
The concept and practice of prosecutorial discretion, however, casts the lie to that position. Barthes and Derrida's "death of the author" is not a force in the law, so Ortiz attempting to play The Cog role should be seen as nothing more than sarcasm.
In this case Ortiz "I'm just following orders" warrants a reference to Nuremberg. It's insightful to realise that things can get badly out of hand, even if you follow the letter of the law. Aaron's case proves the point.
You seem to be operating under a popular misunderstanding of what Godwin said. Godwin said, merely, that if the discussion goes on long enough, eventually the nazi era will be mentioned.
He never said it was always inappropriate to mention it, nor that those who mention it are always wrong, etc.
The popularity of "Godwin's Law" (especially this incorrect interpretation) has lead to a lot of people denying that anything in the US (or any online discussion) could be accurately compared to anything that happened in Germany.
Which is silly, but just another case of "when america does it, it's different."
and they recognized that his conduct – while a violation of
the law – did not warrant the severe punishments authorized
by Congress and called for by the Sentencing Guidelines in
appropriate cases.
Ortiz on 9/2012, adding 9 counts to the conduct that we learn "did not warrant...severe punishment":
Federal prosectors added nine new felony counts against
well-known coder and activist Aaron Swartz, who was charged
last year for allegedly breaching hacking laws by
downloading millions of academic articles from a
subscription database via an open connection at MIT.
Ortiz today:
Ultimately, any sentence imposed would have been up to the
judge. At no time did this office ever seek – or ever tell
Mr. Swartz’s attorneys that it intended to seek – maximum
penalties under the law.
And here is Ortiz in her own press release telling the entire world the DOJ is threatening Swartz with a maximum penalty of 35 years and $1M in fines:
AARON SWARTZ, 24, was charged in an indictment with wire
fraud, computer fraud, unlawfully obtaining information
from a protected computer, and recklessly damaging a
protected computer. If convicted on these charges, SWARTZ
faces up to 35 years in prison, to be followed by three
years of supervised release, restitution, forfeiture and a
fine of up to $1 million.
It is completely disingenuous for Ortiz to maintain that 35 years/$1M wasn't the threat on the table, that we are rubes for thinking that this sticker price was material. That sticker price is exactly what gave her leverage over Swartz, leverage to make 6 months in federal prison and felon status (not to mention legal bankruptcy) seem reasonable by comparison!
Ultimately, any sentence imposed would have been up to the
judge.
Exactly, and this is why this random variable was so intimidating. Do you take a guarantee of 6 months in federal prison and permanent felon status? Or a risk of 7 years, or up to 35 years, plus total bankruptcy if you really try to fight?
"Ultimately any sentence imposed would have been up to the judge" and had the judge thrown the book at him Ortiz & Heymann would have washed their hands: "Oh well, maybe the judge shouldn't have given him 8 years rather than 3, but that's what he gets for not plea bargaining." This of course disavows Ortiz's and Heymann's own complicity in drumming up PDF downloading into a federal case.
This woman really feels like her office's actions were justified, and that's the scary part. You get a sense of what Aaron was up against. She needs to feel what it's like to be in a no-win situation herself, with the choice being resignation or getting fired. That is only way that prosecutors across the land will get the message: that this was wrong.
I generally agree with your analysis, however you will find that lawyers disagree on the threat assessment. A prosecuting lawyer always says "these are the charges [specific charges] which carry a maximum sentence of [worst possible sentence]" and rarely (and never that I can find for first time convictions) are those maximums given.
The implication in the press, and denied now by Orbitz, is that she told Aaron's lawyer that she was going to ask for, demand even, the maximum sentence. And she has denied that was ever the case. His lawyers can confirm or deny that.
There is more to hear about the intransigence of MIT in their willingness to accept a lesser sentence as well. As with many things, everyone reporting on this has reason to shade the words to advance their point of view, and so it takes a lot of work to be discerning.
Empty words from Carmen Ortiz, and quite Orwellian indeed. Adding 9 felony counts just about proves that the prosecutors were NOT measured in their approach. Whatever MIT's responsibility, it doesn't diminish how wrong the behavior of Ortiz et al was.
Erm, I can see a reasonable case for adding charges, even if you don't intend to ask for the maximum. You can only charge a defendant once for any given crime. You can't bring charges under different theories of guilt if your first attempt fails. So, no matter what sentence you are going for, you want to charge the defendant with all the crimes they could be guilty of. Otherwise, if they evade the largest charge, there is no way to ever punish them at all, even if you could have proven the lesser charges.
There's only one crime, but there are a number of statutes that add all kinds of "add-on crimes", with widely intersecting definitions. Doing just one thing, you can be guilty both in computer fraud, unauthorized access, copyright violation, etc., etc. These are routinely used to a) intimidate the defendants and b) mislead the jury into thinking the defendant is a serious criminal (not one, but 15 charges! he must be guilty of at least something!) and gives strong incentive to "split down the middle" and convict on at least some of the charges. It is a routine trick, which is routinely used by prosecutors, and they know exactly what they are doing. In this case their intimidation has gone further than they intended, but otherwise they are not fooling anyone talking about how they really just wanted a small punishment and always told so to everybody. They bullied Swartz just as they bully everybody.
Analysis on Volokh's blog: http://www.volokh.com/2013/01/16/the-criminal-charges-agains... shows the number of the charges probably would not influence the sentence much, but greatly increases chances of conviction and creates serious chance for a long prison term if unsympathetic judge happens to be sentencing.
Prosecutors are supposed to inform defendants of the sentencing guidelines, which are usually quite different from the maximum allowable penalties. I think the office must have done this. Whether that was shaded with "and that's what'll happen" or with "but you're an enemy of the state, and we might just press for the maximum" is directly addressed by this statement, but we've heard more-or-less the opposite from Aaron's counsel. At this point, we have some he-said/she-said, but on the whole, given the contradictions in the statements and actions from the US attorneys, Aaron's counsel seems more credible. It'll be interesting to see how this plays out...
"And here is Ortiz in her own press release telling the entire world the DOJ is threatening Swartz with a maximum penalty of 35 years and $1M in fines:
http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.....
AARON SWARTZ, 24, was charged in an indictment with wire
fraud, computer fraud, unlawfully obtaining information
from a protected computer, and recklessly damaging a
protected computer. If convicted on these charges, SWARTZ
faces up to 35 years in prison, to be followed by three
years of supervised release, restitution, forfeiture and a
fine of up to $1 million. "
That quote in no way says what you claim it does. It makes a comment (as every DOJ press release does) stating the material fact of the maximum penalties available based on the charges laid.
It doesn't say anything about "prosecutors are seeking..."
> It doesn't say anything about "prosecutors are seeking..."
Wrong. It's up to the prosecutor which charges are filed, which are dropped, which are pursued in court.
If they are taking those charges to trial, and they were in this case, it means they are seeking those penalties. Now, they may ask the judge for a lesser sentence ... everyone wants to appear merciful after you beat the guy down, but they most certainly were seeking them to begin with.
Also, this entire "judge decides" is absolute bullshit. And it smells like bullshit to anyone who has been in a court room.
Technically, even if you accept the plea bargain, after you stand in front of the judge and say "guilty" ... the judge can easily ignore your plea deal, accept your guilty plea, and sentence you to the maximum allowed. Now, that almost never happens, since that would undermine the whole system ... but it can, since it's up to the judge.
Judges, frequently, give deference to the prosecutor on sentencing matters, unless they feel the defendant deserves a break. That puts the onus on the prosecutor to act in a just manner, instead of saying "oh, it's up to the judge, don't look at me".
Is it productive to society to convict someone of, say, "hiding one's identity in furtherance of a computer crime" (or the actual legal equivalent of those made up words I just typed) if that "computer crime" wasn't proven?
Not really, but there are statutes - such as "unauthorized access" which become felonies if attached to any (even minor) other crime. So you can take two minor crimes, join them and get a felony. Moreover, if both are of such nature, you can have two felonies now, and if jury returns guilty on any of them, I understand you'd have felony conviction.
Presumably if that particular combination were in question, there would be no way to prove the former without the latter. That doesn't hold for all the combinations the prosecution filed.
To say that it "in no way" says that is simply incorrect.
It's quite clearly swinging around the threat of a big sentence. I can't see how that could possibly be more clear.
It's meant to intimidate and frighten, not just Swartz, but any one else who may come into conflict with the United States Attorneys. That's why it's there.
It's not merely a statement of fact, it's bragging and intimidation.
Do you take a guarantee of 6 months in federal prison and permanent felon status?
This was never a guarantee. As she said, the judge makes the final determination. The DA's suggestion has a lot of pull with a judge, but the DA can't promise anything.
Just happened in my small town. Mayor got caught falsifying documents in previous city job. Pled guilty, agreed to fine + resignation. Judge threw that out, added 15 days in jail. Mayor didn't resign till the DA filed suit to enforce the law.
Much popcorn was consumed watching theatrics in town of 1k people.
Yes, but when have you seen it happen the other way? Judge throws out the plea bargain and gives lesser sentence. I'd be shocked and amazed. Now reading about that case would require some popcorn.
Haven't seen that. But this is the third in a string of entertaining mayors we've had.
Previous mayor got into a fight about hours worked with the council, and then after passing a resolution, the council had a lawyer look at it and decide that they couldn't do what they just did.
Previous to that, the mayor used the word 'poopyhead' on a local internet forum, which was disbanded later due to the excessive flaming over land use regulations.
Small towns are lovely, except for the talent pool for leading them.
Does anyone here seriously believe that she's going to be fired? And that Carmen Ortiz is such an exceptional case?
There are hundreds of prosecutors in the US who routinely - even though against predominantly non-white and non-prominent defendants - seek much harsher sentences for much lesser "crimes", often with much more dubious evidence, and much lower chances for defendants to ever have their personal situation considered in a public forum like this one.
The need to "start somewhere" doesn't exempt you from seeing things in proportion. ("Proportion" with regards to Ortiz. Aaron's death must not enter equations or comparisons. It's absolutely out of proportion.)
Charles Pierce wrote an exceptional blog post on the issue of Aaron Swartz along those lines:
"Which brings me to my second conclusion — Aaron Swartz ran facefirst into a law-enforcement and prosecutorial culture that we have allowed to run amok for far too long. It began with drugs. It intensified with the "war on terror." Preventive detention — though they don't call it that — has been mainstreamed, due process sacrificed to efficiency. Investigation without cause has been normalized in our daily lives, through mandatory drug testing and roadblocks and a dozen other ways we barely think about any more. Personal privacy has been rendered less important than official secrecy in the general scheme of things. We want — nay, demand convictions, and all barriers to them be damned."
"Back when rogue prosecutor Mike Nifong went crazy and ginned up a rape prosecution against several members of the Duke lacrosse team, there was a great deal of horror at how "the system" could have gone so horribly wrong. But it didn't. It just got aimed for once at people with the financial and social wherewithal to fight back. There are minor-league Mike Nifongs in every precinct house and every federal law-enforcement operation and every DA's office and all throughout the branch offices of the Department Of Justice. There are "Duke rape cases" happening every day in alleys and on streetcorners of every city, and on the dusty backroads on the outskirts of nowhere."
2% of American men are currently in jail. Among black men 30 to 34, 7% are currently in jail. We just don't notice the vast injustice of our justice system until we think it might affect us.
Attacking a single prosecutor who was doing her job and obeying the law won't change anything. Attacking the laws she enforced will.
>Attacking a single prosecutor who was doing her job and obeying the law won't change anything.
That's definitely wrong.
Prosecutors go after crimes like this in a public way partly to deter others. The theory is that if they make a clear example of one transgressor, it will scare others into line.
If that theory is good enough for hackers, who aren't particularly good at responding to social pressure, I'm sure it's good enough for career federal employees, who are notoriously risk averse. And the government will certainly fire people who have attracted sufficient negative media attention; Shirley Sherrod is a clear example.
I'm with you on fixing the other injustices as well, but that's no reason not to go for a win with Ortiz. Indeed, getting a win here means you'll have a bunch of people feeling victorious who can be motivated to move to something bigger.
"Doing her job and obeying the law" is not an excuse. "Doing her job" would have been to tell MIT (or whoever was responsible for this affair to end up on her desk) to go away. Even though I am aware that's not how becoming a "career prosecutor" in the US justice system works.
Remains the fact that none of the bright minds that congregate under news.ycombinator.com seems to have the slightest idea how "attacking the laws" is supposed to work. Apart from maybe a vague theory of erosion that appears far less convincing than pretty much anything most people here would dare to argue in the context of, say, a business plan.
It's essentially a problem of corruption. If you want to 'beat the system from within', for instance by joining the political stage or by becoming insanely wealthy through some corporate scheme so you can use your power to lobby you will end up being such an integrated part of the system that arguing against it will argue to a large extent against your own interest. That's why the situation persists. If you could convince large numbers of voters to vote their own interests instead of being tricked into voting based on inconsequential talking points you'd end up with Ralph Nader for president instead of a democrat or a republican. Fix that and you can fix everything else with relative ease. But that's a very hard problem to fix, if it is even possible. So you get individual fighting windmills at a level that they can relate to instead.
So if that was the venture you wanted me to support ("convince voters to vote their interest, and thus for a very different type of president" - seems to be a venture with a "media" or "campaign funding" angle, and I agree, it's a hard problem), then my question would be:
How do you assure that president will not be corrupted or compromised as well? How will he be able to tell every single person who is invested in the laws you're trying to attack (from corporate interests that are so huge that they're usually awarded cabinet posts to the sheer drag of gigantic bureaucracies invested in existing career paths) to go away? How can he practically reach the most powerful political position without sacrificing this very ability?
Plus: Imagine what would be the smartest, most malicious attacks on your plan. How would you counter them?
(Edit: None of these are rhetorical questions, of course. I do believe these laws have to be attacked. But if you asked me, maybe I'd rather invest in something like the study of political tectonics, earthquakes. Why do they happen so rarely, what makes them so destructive, and how can one provoke them?)
It's not so much corruption as an inevitable extension of the incentive structure.
If you tried to change a DA's office from the inside, you'd get about as far as if you tried to change an investment bank from the inside: you'd be fired, because your moral approach would have a definite negative impact on the number they use to measure your productivity.
You'd never get past making copies unless you assimilated. And even if you went 'deep undercover' and didn't assert your morality until you reached a position of influence, you'd simply be bounced from that spot, as you (and now your entire office or division) continued to deliver 'worse' numbers than those who would replace you.
>Attacking a single prosecutor who was doing her job and obeying the law won't change anything.
I disagree, if Ortiz was looking for a future in politics, she's finished. At the very least, she'll have to change her party affiliation. This is a good thing. Otherwise she could've possibly carried on at a higher level.
Although the various public reactions have yet to make any change in law; recent events may discourage similar prosecutions, at least in the near term. Also, a good thing.
But just putting a temporary cap on Ortiz' career doesn't seem like a big win to me, in the grand scheme of things. I know nothing about Massachusetts politics. Who knows she's not the "good cop", compared to the person whose career, as a result, will advance faster?
I also know nothing about Massachusetts politics; and you're right, it is a small win. Perhaps she would have made a future in national politics. Now she probably won't.
How she compares to the next guy (who won't make the same mistakes) I can't say. There are an infinite number of possible outcomes.
She can be technically telling the truth if the maximum penalty was 50 years (based on maximum possible value of damage), and they were only seeking 7 years.
The maximum penalty was not 50 years. There are several criminal laws that overlap, and on act can lead to a defendant being charged with several overlapping crimes. If the defendant is convicted for multiple of these overlapping crimes, the Federal Sentencing Guidelines call for just sentencing based on one of the violations. In other words, it is essentially max(), not sum().
I'm surprised no-one else is commenting specifically on the use of these words. Forgive my lack of knowledge/experience but isn't the point of the courts etc to go through the process of 'innocent until proven guilty'?
If this basic premise is broken and no-one's talking about it then things must be in a really bad way.
Of the court - yes, absolutely. Every court case starts with the basic idea that the defendant did nothing wrong. That would be the judge that follows that principle. Is the prosecutor supposed to presume innocence ? No.
It's almost the opposite : the U.S. attorney is not an employee of the justice system, she's an employee of the executive (she represents Obama's interest as head of state - nothing else). She is a lawyer that is in the service of the white house and should therefore defend whatever opinion the executive has on the matter.
In simple terms : if the white house thinks you're guilty the attorney's job is to prove that beyond reasonable doubt. Assuming it goes to trial (which this case did not do) it seems extremely likely that the prosecutor thinks you're guilty, otherwise, why would she start a court case that's likely to publicly humiliate the executive ?
Please keep in mind that the opinion of Carmen Ortiz did not really come into the picture. Once the complaint was filed, and the complainant (MIT and JSTOR) demanded damages, her opinion did not matter in the least - her job is to find a settlement acceptable to all parties involved or bring the case to court (because it's a criminal case). She proposed a number of settlements, which were refused by either Aaron Swartz or MIT, and informed them she would bring the case to court, at which point she informed the defendant of the charges (and included the maximum penalty for them - maximum penalty seems unlikely to have been applied in this case, but that's of course my personal opinion, and I'm not the judge). After that the guy killed himself.
Of course, speaking in general, any attorney would probably like to have good relations with MIT, a place that trains more than a few people who later become judges.
> How is it you've determined that Ortiz is lying on multiple accounts
Where did it say that?
If Aaron's lawyers statement disagrees with Ortiz' then there will hopefully be some factfinding to determine who tells the truth and who does not. If they both agree then the falsifiable claim turned out to be true.
That's why you assign investigations to independent entities, and that's why butchers aren't allowed to do their own health inspection.
Whether it was appropriate or not is not for Carmen Ortiz to say.
"The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases."
Is in direct conflict with Aaron's lawyer's account of the run up to last Saturday as well as other statements issued earlier, she may come to regret those words if he has documentation to prove his side of the story.
Aaron's lawyer claims they were threatening just the opposite if he did not take a guilty plea.
In particular:
"At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law."
Is a falsifiable claim. I'm looking forward to Aaron's lawyers' response to this statement.