10 ms·

It's likely that Ms. Ortiz would choose to fight such charges, i.e., go to trial, and would triumph before a jury. This is generally the outcome when the gover

by rprasad 14y ago

It's likely that Ms. Ortiz would choose to fight such charges, i.e., go to trial, and would triumph before a jury. This is generally the outcome when the government tries to pursue outlandish charges -- it loses in court. Thus, the desired effect of putting a senior prosecutor in jail for a ridiculously long time would not occur. Note however, that prosecutors have lost their jobs where clear misconduct took place (see, for example, the former Alaska federal prosecutors who took down former Sen. Stevens). Misconduct in this sense means something unconstiutional, i.e., hiding or destroying evidence. Playing rough in plea negotiations is not misconduct, since the other party does not have to play along and has the constitutional right to go to trial. Note that there is no constitutional right to a plea bargain; that is an administrative convenience offered by the prosecutors to avoid going to trial. If a prosecutor offers you a really good plea bargain (i.e., 6 months on a charge that carries a max penalty of 35 years), you always go to trial. A generous plea bargain means that the prosecutor has a weak case. (This is part of the reason so many lawyers on HN having been defending Ms. Ortiz--based on the charges and evidence publicly known, nobody would have expected Swartz to commit suicide because he would likely have prevailed at trial and should have been advised of this by his lawyer.)

petegrif 14y ago
But if he would 'likely have prevailed at trial' why would a prosecutor waste state resources pursuing the case? Serious question.
- rprasad 14y ago
  Unfortunately, because they can. Though generally, "loser" cases are handed off to younger lawyers as training exercises. The lawyers aren't expected to win the case but get the experience of trying a case before a real jury. It's a lot more ethical on the defense side than it is on the prosecution side (because prosecutors are theoretically ethically obligated not to bring a case to trial if they don't think they have a better than 50% chance of winning).
  - tptacek 14y ago
    That's clearly not what happened in this case. Sorry, caught a call This case didn't get picked up by or delegated to a loser; it was run by one of the most senior computer crimes prosecutors in the country.
    - mscarborough 14y ago
      What about the OP's point are you trying to contradict? I know you're really busy with all these other threads that might not have your opinion in them yet, but what exactly is so clear about this complicated situation? Your comment is the equivalent of spraying a plant with a hose while not actually looking at it. Can you leave a single thread alone, or do you need to toss out random inconsistent opinions at every single opportunity?
      - tptacek 14y ago
        The fact that you don't understand my perspective on an issue, or have decided to put everyone in the world into a "with me" or "against me" bucket, does not mean I'm being inconsistent. I wouldn't bother to respond to a comment like this except that this is such a common pathology it might be helpful to call it out. What makes this pathology even more annoying is that it suggests we'd rather have punching bags than discussions. It's as if any place we agree on the issues, and any progress we make towards agreement, is something to be mad about. My guess is you've put me in the "thinks Aaron should have gone to prison" bucket, and thus we disagree about what should or shouldn't be criminalized. But we do not now nor have we ever disagreed that Aaron didn't deserve prison time for downloading journal articles (for fuck's sake). People who steal credit cards online have received suspended sentences. And if you find anyone anywhere writing online that is making a coherent effort to argue on behalf of criminal sentencing, I'd sure love to know about it.
        mscarborough 14y ago
        C'mon man, that's not at all what I said. I don't understand your perspective from your comment because you didn't make any sense. your comment that i replied to: "That's clearly not what happened in this case." your comment as it is viewed now: That's clearly not what happened in this case. <i>Sorry, caught a call</i> This case didn't get picked up by or delegated to a loser; it was run by one of the most senior computer crimes prosecutors in the country. Oh, you "caught a call"? When the phone rings you just hit "reply"?
- fennecfoxen 14y ago
  Political reasons? i.e. the governor/president/mayor/&c wants to make a big mess, and the prosecutor's boss wants them to look good for the mayor.
AnthonyMouse 14y ago
>This is part of the reason so many lawyers on HN having been defending Ms. Ortiz--based on the charges and evidence publicly known, nobody would have expected Swartz to commit suicide because he would likely have prevailed at trial and should have been advised of this by his lawyer. Having to win at trial still means you have to go to trial. Which means you commit to spending years of your life in a state of terror because you can't be sure of the outcome, you bankrupt yourself and then your friends and family paying for it, and if you win... you don't get back any of your time or money and there is no penalty for the prosecutors. I have to say, that sounds pretty darn stressful, and that's if you assume you can win.
- rprasad 14y ago
  My perspective probably differs, since I used to work for the public defender and never lost a jury trial, so I can see how most people would find the situation very stressful. But I do stand by my point that most defendants do not commit suicide.
  - tptacek 14y ago
    Granick strongly disagrees with you. Beating this drum again: as Granick explains it, had Swartz gone to trial and been acquitted of twelve of the thirteen charges he faced --- disproving 92% of the prosecution's case --- not only would the prosecution not lose credibility at sentencing for bringing an overwhelmingly spurious case to trial, but because unproven "relevant behavior" is material during sentencing, the damages alleged in the 12 disproven charges could still be used to ratchet up the sentence!
    - krickle 14y ago
      What the fuck? "For the crime of X and twelve counts of being falsely accused of Y we sentence you to ZZ years of prison." I never thought the legal system was fair, but comments about this case are revealing a whole new level of bullshit beneath the top layer.
      - 14y ago
tptacek 14y ago
I do not see many lawyers on HN defending Carmen Ortiz. Additionally, gotta remember that part of the problem with the Ortiz witch hunt is that Ortiz isn't the most important target. Stephen Heymann, who managed the day-to-day of the trial, isn't just a very senior prosecutor; he's also a national authority on the prosecution of computer crimes. Moreover, outside HN, I see widespread condemnation of the behavior of the US Attorney's office in Boston. See this story: http://news.ycombinator.com/item?id=5064128 http://news.ycombinator.com/item?id=5064128 Jennifer Granick has defended federal computer crimes cases in Boston and goes farther than questioning the behavior of the prosecution, but actually comes out and says that she believes that particular prosecutor's office has a reputation for immorality.
- jordanb 14y ago
  WRT Ortiz vs Heymann: Ortiz has publicly made comments supporting the prosecution of Aaron Swartz, so it's not true that this is a case of the head not knowing what the hands are doing. Also, I believe---but correct me if I'm wrong---that Heymann is a civil servant and not a politician like Ortiz. He therefore doesn't serve "at the pleasure of the President" and would be more difficult to dismiss. But I sorta served in the civil service for a little while in that I had a student worker position at the State of Illinois while I was in college. And one thing I know about the bureaucracy is that they are terrified of politics. They know that they can do things that get their boss sacked, and if they do, their career is over. They won't be fired outright, but they will end up sitting at a desk in the copy room. So the reality is that if Ortiz is sacked, Heymann will be kryptonite in the DAs office, expect him to resign within six months if he has any dignity at all.
- gyardley 14y ago
  I agree that Stephen Heymann played a more direct role. However, Carmen Ortiz was his boss and therefore responsible for the work of her employees, and her firing will also have beneficial effects. First, her sacking will make every other US Attorney in the country take a very close look at the actions of their subordinates. If Heymann goes but Ortiz stays, I'm not sure the rest of them will sweat nearly as much. Second, Ortiz's firing should still sink Heymann's career as a prosecutor - if his actions get his boss sacked, I can't imagine the next political appointee to supervise him will give him much leash. Well, may they both be fired.
mscarborough 14y ago
> If a prosecutor offers you a really good plea bargain (i.e., 6 months on a charge that carries a max penalty of 35 years), you always go to trial. A generous plea bargain means that the prosecutor has a weak case. No kidding. I've been in court before for a victimless crime, and while the max sentence wasn't much compared to 6 months (much less 35 years)--just swallow your pride, plead guilty and move on if you give a shit about your life.
- btilly 14y ago
  You seem to have completely misinterpreted what rprasad said. That said before saying you accept a 6 month plea bargain, you should read http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz-part-2 http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-l... which among other things explains why Aaron could have accepted that and still wound up with years in prison.

by rprasad 14y ago

petegrif 14y ago

But if he would 'likely have prevailed at trial' why would a prosecutor waste state resources pursuing the case? Serious question.

rprasad 14y ago
Unfortunately, because they can. Though generally, "loser" cases are handed off to younger lawyers as training exercises. The lawyers aren't expected to win the case but get the experience of trying a case before a real jury. It's a lot more ethical on the defense side than it is on the prosecution side (because prosecutors are theoretically ethically obligated not to bring a case to trial if they don't think they have a better than 50% chance of winning).
- tptacek 14y ago
  That's clearly not what happened in this case. Sorry, caught a call This case didn't get picked up by or delegated to a loser; it was run by one of the most senior computer crimes prosecutors in the country.
  - mscarborough 14y ago
    What about the OP's point are you trying to contradict? I know you're really busy with all these other threads that might not have your opinion in them yet, but what exactly is so clear about this complicated situation? Your comment is the equivalent of spraying a plant with a hose while not actually looking at it. Can you leave a single thread alone, or do you need to toss out random inconsistent opinions at every single opportunity?
    - tptacek 14y ago
      The fact that you don't understand my perspective on an issue, or have decided to put everyone in the world into a "with me" or "against me" bucket, does not mean I'm being inconsistent. I wouldn't bother to respond to a comment like this except that this is such a common pathology it might be helpful to call it out. What makes this pathology even more annoying is that it suggests we'd rather have punching bags than discussions. It's as if any place we agree on the issues, and any progress we make towards agreement, is something to be mad about. My guess is you've put me in the "thinks Aaron should have gone to prison" bucket, and thus we disagree about what should or shouldn't be criminalized. But we do not now nor have we ever disagreed that Aaron didn't deserve prison time for downloading journal articles (for fuck's sake). People who steal credit cards online have received suspended sentences. And if you find anyone anywhere writing online that is making a coherent effort to argue on behalf of criminal sentencing, I'd sure love to know about it.
      - mscarborough 14y ago
        C'mon man, that's not at all what I said. I don't understand your perspective from your comment because you didn't make any sense. your comment that i replied to: "That's clearly not what happened in this case." your comment as it is viewed now: That's clearly not what happened in this case. <i>Sorry, caught a call</i> This case didn't get picked up by or delegated to a loser; it was run by one of the most senior computer crimes prosecutors in the country. Oh, you "caught a call"? When the phone rings you just hit "reply"?
fennecfoxen 14y ago
Political reasons? i.e. the governor/president/mayor/&c wants to make a big mess, and the prosecutor's boss wants them to look good for the mayor.

AnthonyMouse 14y ago

>This is part of the reason so many lawyers on HN having been defending Ms. Ortiz--based on the charges and evidence publicly known, nobody would have expected Swartz to commit suicide because he would likely have prevailed at trial and should have been advised of this by his lawyer. Having to win at trial still means you have to go to trial. Which means you commit to spending years of your life in a state of terror because you can't be sure of the outcome, you bankrupt yourself and then your friends and family paying for it, and if you win... you don't get back any of your time or money and there is no penalty for the prosecutors. I have to say, that sounds pretty darn stressful, and that's if you assume you can win.

rprasad 14y ago
My perspective probably differs, since I used to work for the public defender and never lost a jury trial, so I can see how most people would find the situation very stressful. But I do stand by my point that most defendants do not commit suicide.
- tptacek 14y ago
  Granick strongly disagrees with you. Beating this drum again: as Granick explains it, had Swartz gone to trial and been acquitted of twelve of the thirteen charges he faced --- disproving 92% of the prosecution's case --- not only would the prosecution not lose credibility at sentencing for bringing an overwhelmingly spurious case to trial, but because unproven "relevant behavior" is material during sentencing, the damages alleged in the 12 disproven charges could still be used to ratchet up the sentence!
  - krickle 14y ago
    What the fuck? "For the crime of X and twelve counts of being falsely accused of Y we sentence you to ZZ years of prison." I never thought the legal system was fair, but comments about this case are revealing a whole new level of bullshit beneath the top layer.
    - 14y ago

tptacek 14y ago

I do not see many lawyers on HN defending Carmen Ortiz. Additionally, gotta remember that part of the problem with the Ortiz witch hunt is that Ortiz isn't the most important target. Stephen Heymann, who managed the day-to-day of the trial, isn't just a very senior prosecutor; he's also a national authority on the prosecution of computer crimes. Moreover, outside HN, I see widespread condemnation of the behavior of the US Attorney's office in Boston. See this story: http://news.ycombinator.com/item?id=5064128 http://news.ycombinator.com/item?id=5064128 Jennifer Granick has defended federal computer crimes cases in Boston and goes farther than questioning the behavior of the prosecution, but actually comes out and says that she believes that particular prosecutor's office has a reputation for immorality.

jordanb 14y ago
WRT Ortiz vs Heymann: Ortiz has publicly made comments supporting the prosecution of Aaron Swartz, so it's not true that this is a case of the head not knowing what the hands are doing. Also, I believe---but correct me if I'm wrong---that Heymann is a civil servant and not a politician like Ortiz. He therefore doesn't serve "at the pleasure of the President" and would be more difficult to dismiss. But I sorta served in the civil service for a little while in that I had a student worker position at the State of Illinois while I was in college. And one thing I know about the bureaucracy is that they are terrified of politics. They know that they can do things that get their boss sacked, and if they do, their career is over. They won't be fired outright, but they will end up sitting at a desk in the copy room. So the reality is that if Ortiz is sacked, Heymann will be kryptonite in the DAs office, expect him to resign within six months if he has any dignity at all.
gyardley 14y ago
I agree that Stephen Heymann played a more direct role. However, Carmen Ortiz was his boss and therefore responsible for the work of her employees, and her firing will also have beneficial effects. First, her sacking will make every other US Attorney in the country take a very close look at the actions of their subordinates. If Heymann goes but Ortiz stays, I'm not sure the rest of them will sweat nearly as much. Second, Ortiz's firing should still sink Heymann's career as a prosecutor - if his actions get his boss sacked, I can't imagine the next political appointee to supervise him will give him much leash. Well, may they both be fired.

mscarborough 14y ago

> If a prosecutor offers you a really good plea bargain (i.e., 6 months on a charge that carries a max penalty of 35 years), you always go to trial. A generous plea bargain means that the prosecutor has a weak case. No kidding. I've been in court before for a victimless crime, and while the max sentence wasn't much compared to 6 months (much less 35 years)--just swallow your pride, plead guilty and move on if you give a shit about your life.

btilly 14y ago
You seem to have completely misinterpreted what rprasad said. That said before saying you accept a 6 month plea bargain, you should read http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz-part-2 http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-l... which among other things explains why Aaron could have accepted that and still wound up with years in prison.