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After Aaron Swartz's Death, the Focus Now Falls On the Prosecutors 430

Posted by samzenpus
from the who's-to-blame dept.
Marcion writes "Journalists and commentators are now questioning the role of Massachusetts prosecutors Carmen Ortiz and Stephen Heymann in the suicide of Aaron Swartz and whether they levied disproportionate charges in order to boost their own political profiles, despite being warned he was a suicide risk. Meanwhile White House petitions to remove Ortiz and Heymann have already received tens of thousands of signatures. Should these prosecutors be investigated for their actions regarding Swartz?"
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After Aaron Swartz's Death, the Focus Now Falls On the Prosecutors

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  • why yes (Score:4, Interesting)

    by Anonymous Coward on Wednesday January 16, 2013 @08:59PM (#42611611)

    Lets just scare a 26 year old into thinking hes going to be forever labeled a felon... This means no job in the IT industry, one heck of a time finding housing, and good luck with quite a few other aspects of life that people take for granted. By the way, you get to do 35 years in PRISON, not jail, PRISON. The place where you either join a gang or get raped.

    Ortiz's dipshit husband says "he had a plea bargain for 6 months." Oh sweet, I get to get raped for 6 months instead of 35 years. But also face the whole not ever being able to find a job, and having to live with my parents because no one will rent me a place...

    I would have offed myself too. Dear DOJ, go f' yourself.

  • Prosecutorial Power (Score:5, Interesting)

    by tranquilidad (1994300) on Wednesday January 16, 2013 @09:07PM (#42611693)

    People have a tendency to behave in ways that give them the most recognition, whether that recognition is stature, monetary reward or both.

    For whatever reason prosecutors seem to be rewarded based on a win percentage, which is objective, vs. a justice served percentage which is subjective. Combine this reward system with an overcrowded judicial system and we end up with a bastardized incentive system that rewards over-charging suspects and attempting to get the suspect to plead down to a lesser charge. Either the person deserves to be tried for the higher charge or not. Using the potential of serious punishment in order to convince a defendant to accept a lesser charge does not serve justice.

    I think Elliott Spitzer was a great example of this type of prosecutorial abuse. He developed a model where he went after many people who had committed no crime but were willing to plead down to lesser crimes to avoid the potential punishment and drawn-out legal process of facing a daunting legal challenge. Spitzer's final year or so when he was getting ready to run for governor was quite disgusting in that there were many people indicted during his run for governorship and the charges were dropped after the election because they weren't fully baked. I've argued that prosecutors should not be allowed to run for another office until at least two years after their last stint as a prosecutor to avoid the conflict of interest associated with running up prosecutorial win rates while running for another office.

    I saw Spitzer on his CNN show after his fall from grace and he said as much when he promoted, in order to stop behavior with which he disagreed, of indicting a group of people for a crime. He said that they would never have to get a conviction because the mere threat would be enough to stop the behavior. This is a person willing to abuse his power in order to change the otherwise legal behavior of people with whom he disagreed.

    Ted Stevens (Senator Internet Pipes) had prosecutors who were sanctioned and had his conviction overturned as a result. Unfortunately, his conviction was overturned after his death and cost him an election. Whether you liked Senator Internet Pipes or not doesn't change the fact that using federal prosecutors to intimidate citizens is unacceptable.

    These aren't the only two cases. I seem to recall a number of prosecutorial misconduct cases over the past few years and it's a crying shame that it continues and costs so much pain for ordinary citizens.

    Combine prosecutorial misconduct with the avalanche of new laws and regulations coming our way and we can expect this trend to continue mainly because we never know when we've run afoul of some law or regulation with which we are unfamiliar.

  • "Making an example" (Score:5, Interesting)

    by meta-monkey (321000) on Wednesday January 16, 2013 @09:16PM (#42611749) Journal

    The prosecutors brought charges far out of proportion with the "crime" of...downloading a bunch of papers in order to "set an example" for other people who might want to do something on computer networks they don't understand yet somehow find threatening.

    This seems to happen a lot. Massive overreactions to harmless pranks. Say something critical about the TSA or the FBI online and get put on some watch list for being a "cyberterrorist." Change your MAC address and download some freely available research papers and get 35 years and a million dollar fine for "hacking."

    Perhaps it's time another example were made. Hey prosectors and government dipshits: if you don't start employing some common sense, then you're going to lose your career.

    Fire 'em. Make an example out of them.

  • Re:Of course not (Score:5, Interesting)

    by Qzukk (229616) on Wednesday January 16, 2013 @09:20PM (#42611777) Journal

    The simple fact is that whichever party they're a member of, prosecutors have incredible levels of immunity from the effects of both their own malice and incompetence.

    To go on the attack against Republicans, here in Texas, we (the taxpayers) had to pay out a pretty hefty wrongful imprisonment fee because one prosecutor hid the existence of a bloody bandana for years, and when it was finally discovered, a second prosecutor blocked testing of it for several years more.

    When the Innocence Project finally got a court to force the prosecutors to allow testing of the blood, it turned up the victim's DNA and another man's DNA... the other man having gone on to possibly kill other people [kxan.com] while an innocent guy sat in jail in his place. No big deal, apparently. The first guy might get to face a court regarding the withholding of evidence, but his tribunal seems to keep slipping farther into the future.

    At least the second guy got voted out by an angry public (though that's not going to get them their millions of tax dollars back), but don't cry too much for him, his best bud Gov. Rick Perry will keep him employed [theagitator.com].

  • by jkrise (535370) on Wednesday January 16, 2013 @09:34PM (#42611921) Journal

    First, it's not scapegoating. Scapegoating implies the victim is innocent, somebody else did the crime, and the scapegoat merely gets the label of a criminal.

    So if the focus falls on 2 over-zealous prosecutors, and their motives proved to be wrong, and they are made an example of, it does not mean they were scapegoats. It means they fully deserved the focus brought to bear on them.
    -----------------
    "Making example of" is not a 'cheap trick'. Prosecutors do the same. Judges do the same. RIAA/MPAA do the same. They do not prosecute every allegedly guilty party. They make an example of a few, to make it a sufficient deterrent for the rest.

    So if two players are indicted for gaming the system for their personal goals, caring little for justice, they should be made an example of. Countless other prosecutors would think 100 times before following the same path.

  • Re:why yes (Score:4, Interesting)

    by NicBenjamin (2124018) on Wednesday January 16, 2013 @09:45PM (#42612041)

    Ortiz's dipshit husband says "he had a plea bargain for 6 months." Oh sweet, I get to get raped for 6 months instead of 35 years. But also face the whole not ever being able to find a job, and having to live with my parents because no one will rent me a place...

    Does anyone except her actually believe she made that offer? Or that there wasn't some wonderful catch like "50 years of probation during which time you can't touch a computer, and you have to say yes in the next minutes."

    You don't charge a guy with a 35-year felony if all you want is six months.

  • Consequences (Score:5, Interesting)

    by EmperorOfCanada (1332175) on Wednesday January 16, 2013 @10:04PM (#42612207) Homepage
    There need to be consequences for prosecutors who abuse their positions.This could be done mathematically. One abuse is when prosecutors level massive charges with the goal of pleading them down. Thus there could be a maximum ratio of charges laid vs convictions/pleas on those exact charges. Another abuse is the investigation itself. So there could be a maximum investigation to conviction ratio. Also there could be a maximum time for an investigation. If someone is investigated for years and years the drain on them is nasty. So it should require a judge's approval to continue an investigation past a certain amount of time. For a crime boss this could be a great long time but for some dumb computer case it should be 30 days or less.

    When consequences kick in there should be both penalties to the prosecutor and benefits to the investigated. Much like the double jeopardy if you charge someone with something serious that you can't make stick it should then be impossible to convict them in revenge on a minor related crime. So if you charge some hacker with RICO and massive fraud but can't make it stick you can't then convict him in revenge for mail fraud because he filled out some form wrong.

    Then there is the prosecutor. If these ratios are passed by a certain amount the prosecutor should immediately be suspended and their continued employment up for review. Pass the ratios again and game over they lose their job.

    The last option should also be that the defense can have a single prosecutor removed and assigned to a random other prosecutor. This way the "career making" cases are then less about politics and more about justice.
  • by Jane Q. Public (1010737) on Wednesday January 16, 2013 @10:05PM (#42612237)

    "Focusing on those two (whose behavior does indeed seem pretty despicable) is going to accomplish very little in the long term."

    I disagree completely. We have experience in my local area with a prosecutor who was apparently corrupt, and cherry-picked who he was going to prosecute (and how hard) based on reasons other than the law.

    I say: DO focus on these two, and punish them harshly for overstepping. Part of the reason for their overreach in the first place has been the ability to do such things without consequence. Give them some real consequences, and watch them shape up.

    As someone else said, we can do both. The Feds are going to have to be put back in their place, and by that I don't just mean prosecutors. But that's a good place to start.

    And as for the judges who let them get away with it: be advised that contrary to popular belief, Federal judges are not appointed for life. They can only hold office during "good behaviour"! (U.S. Constitution, Article 3, Section 9). That paragraph explicitly states that this is true even of Supreme Court justices. So let's get a movement rolling about bad behavior.

  • by Anonymous Coward on Wednesday January 16, 2013 @10:31PM (#42612467)

    I really can't fault Carmen Ortiz and Stephen Heymann, their behavior is what the current system demands.

    They wanted to make an example of Aaron Swartz, so why can't we make an example of them?

  • by Delarth799 (1839672) on Wednesday January 16, 2013 @11:04PM (#42612699)
    This was originally posted on ThinkProgress but I will post it here to put that 35 years into perspective for those who don't quite get it. He also was reported to have refused the plea bargain so the full book would have been thrown at him so to speak.

    Manslaughter: Federal law provides that someone who kills another human being “[u]pon a sudden quarrel or heat of passion” faces a maximum of 10 years in prison if subject to federal jurisdiction. The lesser crime of involuntary manslaughter carries a maximum sentence of only six years.

    Bank Robbery: A person who “by force and violence, or by intimidation” robs a bank faces a maximum prison sentence of 20 years. If the criminal “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device,” this sentence is upped to a maximum of 25 years.

    Selling Child Pornography: The maximum prison sentence for a first-time offender who “knowingly sells or possesses with intent to sell” child pornography in interstate commerce is 20 years. Significantly, the only way to produce child porn is to sexually molest a child, which means that such a criminal is literally profiting off of child rape or sexual abuse.

    Knowingly Spreading AIDS: A person who “after testing positive for the Human Immunodeficiency Virus (HIV) and receiving actual notice of that fact, knowingly donates or sells, or knowingly attempts to donate or sell, blood, semen, tissues, organs, or other bodily fluids for use by another, except as determined necessary for medical research or testing” faces a maximum of 10 years in prison.

    Selling Slaves: Under federal law, a person who willfully sells another person “into any condition of involuntary servitude” faces a maximum prison sentence of 20 years, although the penalty can be much higher if the slaver’s actions involve kidnapping, sexual abuse or an attempt to kill.

    Helping al-Qaeda Develop A Nuclear Weapon: A person who “willfully participates in or knowingly provides material support or resources . . . to a nuclear weapons program or other weapons of mass destruction program of a foreign terrorist power, or attempts or conspires to do so, shall be imprisoned for not more than 20 years.”

    Violence At International Airports: Someone who uses a weapon to “perform[] an act of violence against a person at an airport serving international civil aviation that causes or is likely to cause serious bodily injury” faces a maximum prison sentence of 20 years if their actions do not result in a death.
  • Re:Shameful. (Score:5, Interesting)

    by TapeCutter (624760) on Wednesday January 16, 2013 @11:12PM (#42612777) Journal

    You do realise radio DJ's are far more harmless than prosecutors?

    Did you know that the Rawandan genocide was organised and it's implementation coordinated via (religious) radio DJ's?

  • Re:Of course not (Score:3, Interesting)

    by Anonymous Coward on Wednesday January 16, 2013 @11:41PM (#42612989)

    Funny, Eric Holder made the same claim to Congress. They asked for evidence of such and he had to recant that statement 4 months later because he would have faced jail time for lying to Congress under oath.

    But, I'm sure you are more of an expert on this than the Congressional hearings and Eric Holder.

    BTW... The Bush version put trackers on the guns, tracked the guns, and had Mexican officals on board with the operation. Once they found a tracker not in one of the guns they immediatly stopped the program. Obama's version did not have trackers on guns, did not attempt to track the guns, and did not inform Mexican officals about the program.

    But you did get the MSNBC talking points correct, so that should count for something.

  • by Sabriel (134364) on Thursday January 17, 2013 @12:20AM (#42613251)

    Point by point:

    Re Reiser. Yeah, a lot of Slashdot readers need to get a grip. On the other hand, I remember more the Slashdot readers who were saying "we don't know enough" and "let the police do their job".

    Re first mistake. Did Aaron see MIT's PTB as an ally, a neutral party, or part of the problem?

    Re second mistake. You state, "Rather than take that offer (which would have given him maybe four to five months in a minimum security facility) and come out smelling like a rose for his act of civil disobedience". No. One, "would have" and "maybe"? Make up your mind. Two, felony records carry long-lasting social, financial and bureaucratic stigmas. http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz-part-2 [stanford.edu]

    Re Hotz. Hotz was not facing federal prison time and a felony record. Sony vs Hotz was a civil suit.

    Re decision. Yes, those were all Swartz's decisions. And those decisions did not occur in a vacuum. Federal prosecutors (one or more of Carmen Ortiz, Stephen Heymann, Scott Garland) decided to charge Swartz with federal crimes, decided to pursue jail time, decided to ignore JSTOR's objections, decided to escalate the charges, and decided to ignore the warning about Swartz being a suicide risk (despite Heymann being the prosecutor in an earlier hacking case where a suspect committed suicide).

    Re ultimate irony. Feel free to visit your local public university library - and research the number of towns that don't have local public university libraries.

  • by Comrade Ogilvy (1719488) on Thursday January 17, 2013 @12:26AM (#42613297)

    Certainly. But we cannot behavior to ever improve (or not decline) unless we can get some kind of consensus on what "should" happen. We must begin with a moral argument, or contests of power devolve to exercises of power merely for power's sake.

    We as a society need to ask whether any prosecutor "should" be asking to put a young man away for stealing a few textbooks longer than most rapist-murderers end up in jail. Is that a constructive usage of the moral power of the state? Obviously not. At best, the prosecutor is psychologically torturing an alleged criminal. Gawd forbid the prosecutor wins the case! Should we as a society pay hundreds of thousands of dollars of court costs, around a million dollars in jail costs, and lose a highly productive citizen, so a prick lawyer can put a feather in their cap?

  • Civil vs. Criminal (Score:4, Interesting)

    by number6x (626555) on Thursday January 17, 2013 @08:31AM (#42615355)

    You are correct. Intellectual Property laws are civil laws, not criminal. Violating copyright should result in civil action. In this case, JSTOR could choose to sue Aaron Swartz.

    The only involvement of law enforcement should be to possibly serve warrants and to act as bailiff in the Court.

    The taxpayers should not be footing the bill for law enforcement action in non-criminal cases. However, we keep electing right wing socialists who believe the government's job is to ensure that corporations earn the profits they are 'entitled' to. This idea of corporate 'entitlement' leads to a redistribution of wealth from the middle class to the corporations, and we end up with Aaron Swartz facing more fines and jail time than if he had robbed a bank at gun point.

    Not only are corporations people, they are more important than regular people!

  • by TheCarp (96830) <sjc@@@carpanet...net> on Thursday January 17, 2013 @08:56AM (#42615455) Homepage

    Well.... thats how people are. Its not a problem until something sensational happens. I know a few people who have been utterly railroaded like this.

    Actually I was involved peripherally in a corperate bribery scandal (I actually was called to testify about a meeting I was in) and I couldn't help but think...as bad as what these guys did.... their careers were ruined, their names were in the paper.... why was the prosecutor going so hard against the 1 guy who refused to plead guilty?

    I mean prosecute fine, go to trial, but nobody else was punished like he was, and he was the lowest man on the totem pole. Why should he recieve the most punishment (he faced actual jail time, his supervisor and external company owner got slapped on the wrist). It seemed to me like it was more about a prosecutor wanting to look tough than about anything I would call justice.

    And I am not defending the guy because I even particularly liked him. Actually I was annoyed that he was a higher level than me when we was clearly not all that technically inclined (I once found he told someone that turning off a service in inetd would block the corresponding port like a firewall! )... but... seeing that I just felt bad for him.

    Another friend picked up a girl at burger king and later found out the hard way she was under age (by all of 6 months) and was a runaway. Her "friend" got upset about something and called the police.... he was given a list of charges as long as your arm.... if he didn't want to just confess to one crime of statutory rape that is.

    In the end, its like prosecutors have decided their jobs is avoiding trials at all cost.... and damn people if they want to exercise their right to make their case and be judged by their peers. They just care that people say uncle.

    We should simply remove the entire concept of a plea, and require prosecutors to make their case before a jury regardless of confessions and or whatnot. This system as is is just plain abusive.

  • by ShakaUVM (157947) on Thursday January 17, 2013 @12:13PM (#42617209) Homepage Journal

    >Make an example out of the prosecutors who turn minor complaints or annoyances into massive criminal cases by firing them and ruining their careers. When they whine, "But this is ridiculous and completely out of proportion with what we did! We were just doing what the system is set up for us to do!" we might get some new allies in the fight to change the system.

    US Attorneys are the closest things to dictators our country has. Chris Christie said that as governor he missed the power he had a US Attorney. They're designed to be independent, and firing them for what cases they choose to bring to trial has ended up backfiring before. (https://en.wikipedia.org/wiki/Dismissal_of_U.S._attorneys_controversy) As the wikipedia entry says, "The U.S. Attorneys, in their pursuit of justice, wield enormous power. Their political impartiality in deciding which cases to prosecute and in arguing those cases before judges and juries with diverse views is essential."

    I think *this* needs to change.

    And they need to be liable for abuse of their power.

    I'm watching it happen in my own life. US Attorney Wagner (http://www.justice.gov/usao/cae/us_attorney/index.html) here in California is currently actively trying to ruin the life of one of my friends. Wagner is the guy that recently made front page headlines on the NYT (https://www.nytimes.com/2013/01/14/us/14pot.html?pagewanted=all&_r=0) for arresting medical marijuana folks licensed in California. My friend is a landowner whose tenants grew pot on his land without his knowledge. For this, Wagner is attempting to seize all of their assets, both related to the case and unrelated. He's doing this all around the state (http://blogs.kqed.org/newsfix/2011/10/07/california-u-s-attorneys-issue-statement-on-targeting-marijuana-industry/), and there's nothing that we the people can really do about it - he apparently feels very comfortable where he sits, ruining the lives of innocent people, because he feels it will intimidate landowners across the state into what he feels the law should be.

    It's ridiculous, and it's unconstitutional in my opinion.

    Here is a petition to remove Wagner from office:
    https://petitions.whitehouse.gov/petition/fire-us-attorney-wagner-abuse-federal-powers/K7mgGkHG [whitehouse.gov]

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