4 ms·

This is a very intelligent, informed summary of the mounting case against the prosecutors. The author minces no words when describing Ortiz' and Heymann's strat

This is a very intelligent, informed summary of the mounting case against the prosecutors. The author minces no words when describing Ortiz' and Heymann's strategy of charging Swartz with a battery of preposterous charges with the express intent of making any action except accepting a plea bargain (and thereby pleading guilty to all charges) the only reasonable approach: "[T]hey assumed that the risk of their success even on bogus charges would be enough to pressure Swartz into accepting a guilty plea on all the counts in exchange for a reduced sentence — which is what they offered him." But what raises the deepest concern when I read this article is that the author continues on to describe Swartz's case not as a particularly bad example of prosecutorial oppression but rather as an exemplar of justice in the United States: "The process was fundamentally corrupt and shameful. But observers of the American criminal-justice system also know that it was a common one." What can we do about this?

polemic 14y ago
This. While Ortiz will be the convenient (and rightful, I suppose) scapegoat in this instance, she's a symptom of the problem and not the cause. There are far more fundamental problems with the DoJ, and until they're addressed (time and cost of mounting a defence, overly aggressive prosecutions, lack of oversight and discretion), nothing will change.
- tunesmith 14y ago
  I know that "don't treat the symptoms! treat the root cause!" is a common, almost unassailable sentiment, but lately I've been thinking there are problems with it. In order for it to be completely ineffective to "treat the symptom", it rests on the assumption that successfully treating the symptom will have zero effect on the cause behind it. A good example of that is taking pain meds to mask the pain of a knee injury. So then you go and run on it, and it makes the knee injury worse. You treated the symptom, and nothing changed. But there are definitely examples where treating the symptom does help. For instance, someone is temporarily depressed because of a unresolved situation in their lives. And yet, they cannot address the situation because the depression is in the way. So, they take an anti-depressant, and then maybe they can resolve their root cause, and then maybe they can go off the anti-depressant. Someone like an Ortiz, yes, is a symptom of a deeper problem. But I'm not convinced it is like the pain in a knee, where treating it will make zero difference. A bum knee isn't exacerbated by the pain. But the system may be exacerbated by Ortiz. A bum knee doesn't become a bit less bum from witnessing the taking of a pain med. But if the system recognizes an Ortiz downfall and receives a data point of what "going to far" is, then maybe that would have an effect. Probably not a sufficient effect, probably not enough, but I'm just pointing out that the fact that Ortiz is a symptom, is not, by itself, sufficient reason to believe that "nothing will change". Also not sufficient reason to believe that the symptom should not be treated.
  - dhimes 14y ago
    I agree with your point, but treating the symptom must be done in such a way that the problem is still seen to be a problem. Another case in point was when the banking collapse hit, 'leaders' blamed things like 'excess greed' and so on, and dodged the real problem (IMHO). I'm afraid of throwing Ortiz to the wolves, washing our hands and saying, "Well, that's that."
    - praptak 14y ago
      This could have a somewhat chilling effect on other prosecutors although obviously only in cases against people who are somewhat popular or at least have the potential to become so. Poor people without outspoken friends would still get screwed. And the incentives for the prosecutors to "score big" would still remain.
    - pekk 14y ago
      What was 'the real problem' with the collapse, in your view?
      - dhimes 14y ago
        People smarter than I will have to figure that out. I'm talking about fairly soon after, before any investigation, we had politicians (McCain, for one) blaming "excess greed." I think this is a straw-man. The people in that job get paid to be greedy. You can't blame that, you have at least recognize that a system (regulations and work flow) is broken if it is so obtuse that people can't even know what decisions are in their own best interest.
        tunesmith 14y ago
        I actually sort of see this as a real-life tragedy of the commons situation, although you kind of have to squint your eyes and wave your hands a bit to make it fit. The "common resource" is the client opportunity. The Nash equilibrium is every employee maximizing their own bonuses. The group optimum is the health of the company. It turned out that the individual self-interest did not align to what was good for the health of the companies. And in fact, that if they had cooperated and worked for the health of the companies, the employees may have ended up with higher individual payouts. This is exactly what the tragedy of the commons is about, and it's what apparently shook Greenspan to his core. So basically, it was the (predicted (over and over again)) failure of Objectivism.
- btilly 14y ago
  I only partially agree. My personal belief is that when prosecutors know that there is a chance of cases blowing up and destroying their careers, as is happening here, they have an incentive to be careful. And likely will be more careful for some time. This is a good thing - even if it helps much less than fixing the system. That is why in many, many corporate cultures there is an effective policy of responding to problems by publicly identifying a scapegoat and throwing the book at them. It is an easy action that makes a marginal difference for a short time. So this is better than nothing. Unfortunately it is not very good. First of all the deterrent effect is only temporary. Secondly you get two-tiered justice where defendants who seem likely to have the potential to raise such a firestorm of protest are more protected than defendants who don't. Thirdly the identification of a scapegoat relieves pressure to come up with a better fix. Therefore I am modestly in support of the current corrective process. I would like to see something better. I will encourage better things. I know the shortcomings of scapegoating. However it is better than nothing. If this is all that this case is likely to achieve, it was still a somewhat useful response.
fatbird 14y ago
Urge your congressperson to support Lofgren's law as it stands. That would do one thing, which is defang the law they were using to bully Swartz.
pvaldes 14y ago
"The process was fundamentally corrupt and shameful. But observers of the American criminal-justice system also know that it was a common one." And it seems to be pretty common, This is another example, a marine biologist bullied and with her life destroyed for "feed the whales". The history and treatment of this girl by another "Ortiz" really sucks. http://www.dailymail.co.uk/news/article-2083331/Marine-biologist-Nancy-Black-arrested-charges-abused-whales-feeding-them.html http://www.dailymail.co.uk/news/article-2083331/Marine-biolo... "Ms Black could receive a maximum sentence of 20 years in prison and a half million dollars in fines. Each of the feeding charges carries a maximum penalty of a year in prison and a $100,000 fine."
- pvaldes 14y ago
  After six long years of accusations and demands that Nancy plead guilty to crimes she did not commit, the U.S. Department of Justice (DOJ) out of Washington, D.C., went before a secret grand jury. Without any opportunity for Nancy or her attorneys to present evidence or cross-examine the prosecutor's witnesses, the DOJ attorneys obtained on January 4, 2012 an indictment charging Nancy with two felonies and two misdemeanors in the process of doing her research on orcas and operating a whale-watching boat.
  - twoodfin 14y ago
    You apparently don't know very much about how the criminal justice system in this country works: All indictments come from "secret" grand juries where only the prosecutor presents a case.
    - emkemp 14y ago
      Adding to twoodfin's comment: Grand Jury sessions are not meant to be trials, and do not consider whether a felony allegation can be proved "beyond a reasonable doubt." Instead they address whether there is "probable cause" that a felony has occurred.
      - pvaldes 14y ago

polemic 14y ago

This. While Ortiz will be the convenient (and rightful, I suppose) scapegoat in this instance, she's a symptom of the problem and not the cause. There are far more fundamental problems with the DoJ, and until they're addressed (time and cost of mounting a defence, overly aggressive prosecutions, lack of oversight and discretion), nothing will change.

tunesmith 14y ago
I know that "don't treat the symptoms! treat the root cause!" is a common, almost unassailable sentiment, but lately I've been thinking there are problems with it. In order for it to be completely ineffective to "treat the symptom", it rests on the assumption that successfully treating the symptom will have zero effect on the cause behind it. A good example of that is taking pain meds to mask the pain of a knee injury. So then you go and run on it, and it makes the knee injury worse. You treated the symptom, and nothing changed. But there are definitely examples where treating the symptom does help. For instance, someone is temporarily depressed because of a unresolved situation in their lives. And yet, they cannot address the situation because the depression is in the way. So, they take an anti-depressant, and then maybe they can resolve their root cause, and then maybe they can go off the anti-depressant. Someone like an Ortiz, yes, is a symptom of a deeper problem. But I'm not convinced it is like the pain in a knee, where treating it will make zero difference. A bum knee isn't exacerbated by the pain. But the system may be exacerbated by Ortiz. A bum knee doesn't become a bit less bum from witnessing the taking of a pain med. But if the system recognizes an Ortiz downfall and receives a data point of what "going to far" is, then maybe that would have an effect. Probably not a sufficient effect, probably not enough, but I'm just pointing out that the fact that Ortiz is a symptom, is not, by itself, sufficient reason to believe that "nothing will change". Also not sufficient reason to believe that the symptom should not be treated.
- dhimes 14y ago
  I agree with your point, but treating the symptom must be done in such a way that the problem is still seen to be a problem. Another case in point was when the banking collapse hit, 'leaders' blamed things like 'excess greed' and so on, and dodged the real problem (IMHO). I'm afraid of throwing Ortiz to the wolves, washing our hands and saying, "Well, that's that."
  - praptak 14y ago
    This could have a somewhat chilling effect on other prosecutors although obviously only in cases against people who are somewhat popular or at least have the potential to become so. Poor people without outspoken friends would still get screwed. And the incentives for the prosecutors to "score big" would still remain.
  - pekk 14y ago
    What was 'the real problem' with the collapse, in your view?
    - dhimes 14y ago
      People smarter than I will have to figure that out. I'm talking about fairly soon after, before any investigation, we had politicians (McCain, for one) blaming "excess greed." I think this is a straw-man. The people in that job get paid to be greedy. You can't blame that, you have at least recognize that a system (regulations and work flow) is broken if it is so obtuse that people can't even know what decisions are in their own best interest.
      - tunesmith 14y ago
        I actually sort of see this as a real-life tragedy of the commons situation, although you kind of have to squint your eyes and wave your hands a bit to make it fit. The "common resource" is the client opportunity. The Nash equilibrium is every employee maximizing their own bonuses. The group optimum is the health of the company. It turned out that the individual self-interest did not align to what was good for the health of the companies. And in fact, that if they had cooperated and worked for the health of the companies, the employees may have ended up with higher individual payouts. This is exactly what the tragedy of the commons is about, and it's what apparently shook Greenspan to his core. So basically, it was the (predicted (over and over again)) failure of Objectivism.
btilly 14y ago
I only partially agree. My personal belief is that when prosecutors know that there is a chance of cases blowing up and destroying their careers, as is happening here, they have an incentive to be careful. And likely will be more careful for some time. This is a good thing - even if it helps much less than fixing the system. That is why in many, many corporate cultures there is an effective policy of responding to problems by publicly identifying a scapegoat and throwing the book at them. It is an easy action that makes a marginal difference for a short time. So this is better than nothing. Unfortunately it is not very good. First of all the deterrent effect is only temporary. Secondly you get two-tiered justice where defendants who seem likely to have the potential to raise such a firestorm of protest are more protected than defendants who don't. Thirdly the identification of a scapegoat relieves pressure to come up with a better fix. Therefore I am modestly in support of the current corrective process. I would like to see something better. I will encourage better things. I know the shortcomings of scapegoating. However it is better than nothing. If this is all that this case is likely to achieve, it was still a somewhat useful response.

fatbird 14y ago

Urge your congressperson to support Lofgren's law as it stands. That would do one thing, which is defang the law they were using to bully Swartz.

pvaldes 14y ago

"The process was fundamentally corrupt and shameful. But observers of the American criminal-justice system also know that it was a common one." And it seems to be pretty common, This is another example, a marine biologist bullied and with her life destroyed for "feed the whales". The history and treatment of this girl by another "Ortiz" really sucks. http://www.dailymail.co.uk/news/article-2083331/Marine-biologist-Nancy-Black-arrested-charges-abused-whales-feeding-them.html http://www.dailymail.co.uk/news/article-2083331/Marine-biolo... "Ms Black could receive a maximum sentence of 20 years in prison and a half million dollars in fines. Each of the feeding charges carries a maximum penalty of a year in prison and a $100,000 fine."

pvaldes 14y ago
After six long years of accusations and demands that Nancy plead guilty to crimes she did not commit, the U.S. Department of Justice (DOJ) out of Washington, D.C., went before a secret grand jury. Without any opportunity for Nancy or her attorneys to present evidence or cross-examine the prosecutor's witnesses, the DOJ attorneys obtained on January 4, 2012 an indictment charging Nancy with two felonies and two misdemeanors in the process of doing her research on orcas and operating a whale-watching boat.
- twoodfin 14y ago
  You apparently don't know very much about how the criminal justice system in this country works: All indictments come from "secret" grand juries where only the prosecutor presents a case.
  - emkemp 14y ago
    Adding to twoodfin's comment: Grand Jury sessions are not meant to be trials, and do not consider whether a felony allegation can be proved "beyond a reasonable doubt." Instead they address whether there is "probable cause" that a felony has occurred.
    - pvaldes 14y ago