Carmen Ortiz Has Blood on Her Hands (2013) | Hacker News Reader

Carmen Ortiz Has Blood on Her Hands (2013)

mattbruenig.com

293 pointsviburnum120 comments

It wasn't just Ortiz. Judge Nathaniel Gorton played a huge role:

Gorton is well known to the Massachusetts Bar, whose members whisper he rarely meets an indictment he doesn’t like. He’s noted as a hanging judge; prosecutors go out of their way to get high-profile cases assigned to him.

After Swartz drew Gorton, his defense lawyers told Heymann the pressure of the case had rendered Swartz suicidal, his attorney later said he told prosecutors.

“Fine, we’ll lock him up,” [Judge] Heymann responded.

Swartz killed himself shortly thereafter, in January 2013.

from https://theintercept.com/2021/02/15/marty-walsh-aaron-swartz...

Carmen Ortiz sucks. Here's a whole lot more words on the topic (2013): https://www.wbur.org/news/2013/02/20/carmen-ortiz-investigat...

"The takeaway lesson here is somewhat narrow: don’t be Ortiz. Establish some sort of line early that you are not willing to cross. Otherwise you might find yourself one day with blood on your hands, having forgotten that the law is not an end in itself, and that there are more important things in life than office."

Agreed. It's far better to establish personal ethical red lines before you're confronted with a compromising situation.

Those situations almost always come with justifications: exceptional circumstances, career impacts, peer pressure, or just lots of money.

Better to have already decided something when you weren't unduly influenced, than have to make a hard call while everyone around you is whispering seductive suggestions in your ear.

it's always been really interesting to me how much power is wrapped up in district attorneys. in terms of a single type of elected seat that has the most discretionary power over the lives of other human beings in the united states, i'm not sure much matches it.

combine that with the relatively limited amount of attention the seats get at election time and the whole situation is sort of a weird singularity in american government.

The type of personality that aims for this position also intrigues me. The number of bodies you need to stand upon to get to the top is horrible.

you don't think there are at least some benevolent DAs who work hard to conduct themselves ethically and aim for the seat because they truly are interested in making their communities a better place?

maybe it's why i struggle in many ways, but i like to assume that not all roads to power are dripping with the blood of those who were ran over.

It’s that prosecutors don’t hold each other accountable (or the bar doesn’t disbar them) often enough for misconduct - see the books by Paul Butler, Emily Bazelon, and Angela J. Davis

or maybe we just need to elevate the status (including both lifetime compensation and career progression) of public defenders to that of their prosecutorial counterparts. similar to how we need to elevate the status of scientific replication to that of novel discovery.

It won't happen. Our current justice system _needs_ a lot of people to take plea bargains, because neither the defense, nor prosecution, nor judges, have the resources for most cases to actually hit the courtroom.

Studies estimate that 90-95% of criminal cases are settled via a plea deal.

It's one of the greatest shams of our justice system. The Constitution guarantees you habeus corpus, but we are in no way equipped to actually offer that. If you accept the government defense, everyone involved has a vested interest in preventing you from exercising that right.

I think the current style of plea bargains should be ruled unconstitutional, and the bar should have some serious thoughts about the ethics of some DAs. I simply can't fathom that "accept this plea deal or we're going to ask the judge to double the sentence if we win" doesn't seem like the government trying to force someone to abandon their constitutional rights, and trigger a very serious ethics investigation.

Can you imagine a doctor saying that they're going to do a bad job treating you if you don't sign away your HIPPA rights? Or what the medical board would do to anyone that tried?

Insidiously, I think that neatly whitewashes the fact that our body of laws has become so broad and overreaching that we can't really allow people to exercise their rights. If they did, the Department of Justice would balloon up to the size of the Pentagon, and the extra taxes would put a huge drag on our economy.

Ortiz was not elected. She was a U.S. attorney appointed by Obama.

fair. point stands. some are elected, others are appointed. it's still an amazing amount of discretionary power that lands on the shoulders of single individuals.

Federal prosecutors are all appointed, not elected.

Your point stands. Napoleon once said "the most powerful man in France is the juge d'instruction", the prosecuting judge (a peculiar French institution comparable to a prosecutor).

Given how much Swartz achieved in his brutally short life, we can only imagine what we've lost with his passing.

Historically, the seat has not been wielded at a politically productive scale. More recently, a somewhat cogent policy front has formed. It is now getting a great deal of attention in places like SF, LA, Chicago, Philly, Sacramento, and many counties.

At least in some states, public health officers do.

This is literally true and yet downvoted. You do realize Y Combinator is in California, where this is literally true....

i think it was probably downvoted because it makes reference to an unrelated and broader national political battle.

but since we're here, i'll note that i suspect that there was great alignment between ca's executive leadership and recommendations from ca's public health authorities. bringing up public health officer power in california would be relevant, if say, ca public health officers were overriding the ca governor's office.

they were not, they were working together.

I'm glad this has come up again. I think Carmen should be reminded of this often.

Has anyone ever met a prosecutor who wasn't a really horrible human being?

I've known dozens of prosecutors and I can't think of one that I believe is trying to make the world a better place, rather than simply persecuting people to the maximum extent of their abilities for the prestige and career progression.

This is caused by the way the US justice system is set up to be adversarial. I would much prefer a system where state prosecutors are seeking _justice_ for all parties involved not convictions at all cost.

Their work is to destroy people. There are some stories that we tell to excuse or justify it, but nonetheless that’s what they do.

And you're basically immune from the law if you work for the prosecutor's office. If you see a prosecutor commit a crime who do you report it to? Who would prosecute it?

I remember one time I witnessed a prosecutor committing clear perjury in a criminal case. I reported it to the prosecutor's office (LOL!). I reported it to the body responsible for handling complaints against lawyers in my state. The prosecutor got himself legal representation to defend himself. He admitted the perjury to the body, but they said he'd confessed it was "accidental perjury" and therefore they would not take any action. (The definition of perjury is knowingly lying under oath). I saw a photo of the man this week, he was opening a courthouse and he is now a state senator.

Until you get to the president, there's always a superior office. If a district attorney committed a crime, the state AG could prosecute them.

The most distressing thing about it is when there is some revelation of their misconduct, they act like it’s no big deal and they do this nonchalant “I was just trying to administer justice” charade. It really rubs me the wrong way.

We need updated laws and moral norms around suicide responsibility. There are thousands of suicides per year where no one is held responsible but the person themselves when in reality their death was a direct result of being intentionally treated maliciously. It should be no different than felony murder. By this more just standard Ortiz is guilty and should be charged with murder. Hopefully one day reform like this will happen.

Tarek Mehanna, whose prosecution was her other brainchild, suffered one of the most shameful miscarriages of justice in my lifetime, including Guantanamo.

Note: I don’t think he’s a good person or innocent. He would execute me in five seconds flat because of the sect my parents belonged to. But they could have tried him for legitimate incitement to murder, not what they railroaded him on.

It definitely does seem that prosecutors (at least as portrayed in fiction) make these character judgements that lead them to formulate prosecutions not on the basis of "this person committed this crime, can we get [them] for it", but rather "this person is a bad apple, what can we get them on?"

> rather "this person is a bad apple, what can we get them on?"

Generally it's "I don't actually care whether this person is bad or not, as long as it gets me lots of headlines to further my career."

It's not just Tarek Mehanna, she was also behind the Motel Caswell case.

Very simple, avoids hyperbole, but makes a great point. This marks only the first time Matt Bruenig would lose a job for something he posted.

Aaron Schwartz died for nothing. Ortiz is having an upward legal and political career, while an young and inspiring tech activist died. It didn't even push the envelope on free/open access science journals.

She's not having an upward legal career, and her political career is dead.

https://theintercept.com/2021/02/15/marty-walsh-aaron-swartz...

For whatever it's worth, that article repeats the false claim that Heymann was pursuing a 35 year sentence for Swartz; they were in fact seeking an order of magnitude less time, and were unlikely to get even that (Swartz's own lawyer, writing after his death, noted that even if convicted --- not itself a certainty --- he might not have faced any custodial time).

I write this not to downplay Ortiz and Heymann (I share the common HN sentiment about their behavior and culpability) but as a warning that if an article gets the basic fact that you don't work out sentences by multiplying the statutory maximum for an offense against the number of counts, there's likely other stuff they got wrong too, and this whole article is inside baseball.

Who knows where Ortiz and, more importantly, Heymann are headed now. It's worth keeping your eyes open.

This seems like a motte and bailey.

There is the theoretical maximum sentence someone could receive, then there is the much shorter sentence they're likely to receive even if convicted, then there's the even shorter sentence if the prosecution fails to prove the most serious charges or the defendant takes a plea.

Prosecutors commonly scare monger using the theoretical maximum in their press releases or when trying to coerce a plea out of a defendant. It isn't any more likely then than it is when a reporter says it, so what's good for the goose is good for the gander.

Swartz had exceptionally good representation. I'm confident they knew how to calculate a guideline sentence. For that matter: you could too; it's not rocket science. You'll be off on some particulars, but you'll get a sense of what the ballpark is. Go look up the federal sentencing guidelines.

Yeah, turns out she miscalculated a bit with this particular offering to Moloch.

From the final paragraph:

> Ortiz is now the former prosecutor who is linked to the suicide of a once-in-a-generation talent and who fought Biden’s labor secretary nominee over his labor practices and lost.

you could make an argument that most suicides died for nothing

> Aaron Schwartz

*Swartz

It does seem rather premature to kill yourself before being convicted. Perhaps with the testimony of JSTOR he would've been acquitted.

regardless of whether that would have been more prudent, blame for over charging a young man to the point that he's suicidal is the factor I think we're most interested in

> Perhaps with the testimony of JSTOR he would've been acquitted.

Why? There's no rule that says that they need the victim's consent for criminal prosecution; the idea is that you have offended against the state, not a private actor (in which case the remedy would be civil, not criminal).

I didn't say the case would be dismissed; I said he had a decent chance of being acquitted. The victim testifying in the suspect's defense can have a powerful effect on a jury.

The whole thing was a tragedy. RIP

>It does seem rather premature to kill yourself before being convicted.

Ask Julian Assange his opinion on that.

Assange, if convicted, is likely to actually get a long sentence.

Swartz's lawyers said that the prosecutors claimed that they thought the judge might go up to 7 years. That would be dependent on the prosecutors proving Swartz causes millions of dollars in damages. Swartz's lawyers thought that the provable damages would be much less, most likely resulting in probation.

Also unlike Assange Swartz had plea bargain offers. According to his lawyers prosecutors offered two deals. In one, Swartz would plead guilty and get a sentence of 4 months. In the other, Swartz would plead guilty, prosecutors would ask for a 6 month sentence, and Swartz could ask the judge for a lower sentence (or just probation). The judge would then pick the sentence from the range [probation, 6 months].

Swartz, if convicted, was likely to get a sentence of a few months or just probation. His own lawyers thought probation was the most likely outcome.

See this article for details [1].

The 35 years number bandied about is a press release number. In press releases prosecutors calculate possible sentences using a method that is completely unrealistic unless the person being charged is essentially the Hitler of the part of the crime world they operate in. Here's an article on how such ridiculous numbers come about [2].

[1] https://volokh.com/2013/01/16/the-criminal-charges-against-a...

[2] https://www.popehat.com/2013/02/05/crime-whale-sushi-sentenc...

Having the infinite resources of the state aimed at you in an attempt to deprive you of your freedom and liberty, lock you in a cage, and forever brand you as a felon is a profound and traumatizing experience. The suggestion that this alone wouldn't be enough to drive someone to suicide, even before a conviction, is absolutely absurd. Its abundantly clear that neither you, or anyone else who downplays the trauma of being prosecuted has ever faced criminal charges or spent a day in jail.

> The 35 years number bandied about is a press release number. In press releases prosecutors calculate possible sentences using a method that is completely unrealistic unless the person being charged is essentially the Hitler of the part of the crime world they operate in.

In press releases, prosecutors calculate the maximum possible sentence using a method that is perfectly accurate: take the maximum sentences for each charge and sum them.

This is often not the probable sentence, but then they don't claim it is. It may not be what either side would argue the Sentencing Guidelines would justify, but:

(1) The facts relevant to sentencing guidelines are legally undecided at the time of press releases, and

(2) The Guidelines, while usually followed, are not mandatory, and both upward and downward departures within legal minimums and maximums are allowed. So assuming at least one charge without a mandatory minimum is charged, the legal outer limit is the only certain thing about the potential sentence.

> Energy intensive processes, such as cryptomining operations and data encryption, could require significantly less energy and have a smaller carbon footprint.

No. It will just mean more hashes per block are required.

Ortiz is just another example of two observations I have:

1. It's astounding the mental gymnastics of the ends justify the means politicians and would-be politicians go through for personal gain and when the details eventually come out, it's always wrapped in someone arguing "but we're doing so much good". You saw this with Nixon, the Clintons and a host of others; and

2. Just how fearful and, I would argue, cruel as a result the American people are that this kind of thing has an audience. It's the whole "tough on crime" mantra that so many view as necessary to seek higher ofice.

This whole "tough on crime" thing was central in passing Clinton's signature 1994 crime bill that destroyed thousands of lives and really ramped up mass incarceration, often for fairly minor possession crimes of substances that are now legal or decriminalized for at least a third of the US population.

Mandatory minimums, three strikes laws, the "are you a felon?" scarlet letter... they all speak to societal cruelty.

A more localized example: attempted reform of New York's "gravity knife" law (which has since happened [1]), twice vetoed by former governor Andrew Cuomo [2]. This was a law used by the NYPD to target minorities in particular, meet arrest quotas (why is that even a thing?) and for those with a record in particular, could result in a felony conviction and perhaps years in jail.

It's a matter of debate of why Cuomo vetoed it but my theory is that Cuomo still believed then he could be president one day and he was courting the "law and order" vote (eg the Manhattan DA and the NYPD police union both opposed reform).

We have prosecutors who often want to be future DAs, US attorneys, judges or politicians who are judged on conviction records, which can lead to juveniles being held for 3 years in an adult prison without a trial, ultimately leading to their own suicide [3]. Why? To extract a guilty plea.

These practices are disgusting and those who engage in such political climbing no matter what misery they cause to others--and I include Ortiz in this camp--are reprehensible.

[1]: https://stengellaw.com/gravity-knife-possession-law-change-n...

[2]: https://www.nytimes.com/2017/10/24/nyregion/gravity-knife-cu...

[3]: https://www.theatlantic.com/politics/archive/2015/06/the-bri...

> arrest quotas (why is that even a thing?)

Because management wants tangible, easily measured activity metrics (and is far less concerned with how well aligned the metrics are with meaningful goals.)

It seems U.S. voters like politicians who can show they are tough on crime.

Carmen Ortiz has never held an elected office. Her time in politics was appointed.

She was gunning for political office (governor of Massachusetts).

She gunned herself.

Unfortunately, taking Aaron Swartz, and others, with her.

She's not tough on crime. She's just pro copyright racketeering for big publishers.

Don't judge the entire country by what happens in Massachusetts.

I think that statement would indeed apply to a majority of politicians in the US, on both sides.

Ortiz was a U.S. attorney, not a Massachusetts state attorney.

Thankfully enough other states contribute to whatever negative impression someone might get of the entire country.

We don’t seem to have a clue in the world what we really want.

What kind of crime? Do U.S. voters like politicians who can show they are tough on people download ebooks? I never heard of that.

The kind of voters he’s talking about won’t make that distinction

I don’t think so. When people say tough on crime , it always means certain kind of crimes. Definitely not downloading ebooks or music, etc.

Actually I would say yes, it means that type of crime as well for certain people. When US politicians say they are "tough on crime" they mean "You are scared and you are angry about it, so I will hurt those people who make you scared and you will respect me for it. You won't feel less scared or angry, but you shall feel vindicated for feeling this way."

Tell someone that they are not getting a payrise this year because some punk downloaded an ebook and now the company is on the brink of bankruptcy (whether or not it is true). "Tough on crime" is a reference to who the politician is willing to hurt - it has nothing to do with criminal activity itself.

All these things can be true:

- Carmen Ortiz overcharged Aaron Swartz.

- Carmen Ortiz's action in the Aaron Swartz case show a lack of judgement that should have cost her her legal/political career.

- Carmen Ortiz is not responsible for Aaron Swartz's death.

- Aaron Swartz is dead because he had a mental illness.

You shouldn't blame Swartz's death on Ortiz. Tens if not hundreds of thousands of people go to prison each year in the US and don't feel the need to kill themselves. It was Swartz's mental illness, which he had spoken about publicly before his death, that made a bad situation, which was severely worsened by Ortiz, seem much more devastating. However Swartz's response to that is not Ortiz's fault. Imagine a scenario in which someone commits suicide after a breakup. Would we blame that person's ex? If someone commits suicide after being fired, do we blame their old boss? The catalyst for the suicide is not at fault. The fault is with the illness that makes the person think suicide is the only way to respond to that catalyst.

Yeah, lick that boot!

> Tens if not hundreds of thousands of people go to prison each year in the US and don't feel the need to kill themselves

Plenty do, and plenty die while they're in prison. This is not a rational justification for what happened to Schwartz (and looks to me like victim-blaming)

> Would we blame that person's ex?

I mean if the ex had maintained years of abuse and was threatening the person's life - yes? Yes we would?

Blaming mental illness is an utterly weak response here. Many, many people struggle with mental health and don't commit suicide; the assumption that mental health issues == suicide is reductive and harmful.

>Plenty do, and plenty die while they're in prison. This is not a rational justification for what happened to Schwartz (and looks to me like victim-blaming)

It is not attempting to be a justification for what happened to him. It is demonstrating that Swartz was not acting rationally. You shouldn't blame someone for triggering an irrational response by another person. And it isn't victim-blaming to say someone is dead because of their mental illness anymore than it is victim-blaming to say someone is dead because they had cancer.

>Blaming mental illness is an utterly weak response here. Many, many people struggle with mental health and don't commit suicide; the assumption that mental health issues == suicide is reductive and harmful.

You are the one being reductive and equating all mental health issues to suicide. I am talking about one specific person with mental health issues. Talking about Swartz's mental health history is important. If he got the help he needed at the right time he might still be alive. Talking about that aspect of the story can help save the lives of people who feel similarly trapped as he felt.

Andy Good, Swartz's initial lawyer, told The Boston Globe: "I told Heymann the kid was a suicide risk. His reaction was a standard reaction in that office, not unique to Steve. He said, 'Fine, we'll lock him up.'

http://bostonglobe.com/metro/2013/01/15/humanity-deficit/bj8...

https://en.wikipedia.org/wiki/United_States_v._Swartz

Multiple prosecutors (Ortiz, Heymann), the judge (Gorton), and institutions (MIT, JSTOR) wantonly pursued an extreme perversion of justice in full knowledge of Swartz's mental state.

Funny that you left out the next couple of sentences in that quote: "I’m not saying they made Aaron kill himself. Aaron might have done this anyway."

But either way, what do you think the response from the legal system should be in this situation? Should "my client is a suicide risk" be a path to reduced sentencing? I think that is a huge can of worms. Authorities should certainly work to protect people in their custody to prevent suicide, but I have a hard time agreeing with the idea that they have a responsibility to be more lenient against potentially suicidal defendants.

Again: given a full warning of the problem, judge and prosecutors expressed extreme indifference.

Certainly not judicious exercise of their discretion.

All for a victimless crime.

And rather than express some modicum of sympathy you point out the humour in the situation. (What humour, I'm not even going to begin to ask.)

I couldn't disagree with you more strongly.

Not funny as in humor, but definition 2 and 3 of "funny"[1]:

>2: differing from the ordinary in a suspicious, perplexing, quaint, or eccentric way

>3: : involving trickery or deception

The overall quote agreed with me, but you removed that extra context to make it agree with you.

You also did a good job of avoiding giving a definitive answer to my question because you realize your answer sets a difficult precedent. Should "my client is a suicide risk" be a path to reduced sentencing?

[1] - https://www.merriam-webster.com/dictionary/funny

You're doing an equally good job of avoiding expressing any empathy and human concern your response instead with again defending your own position and word choice.

I'll offer you another opportunity with your own question:

Should "my client is a suicide risk" be a path to reduced sentencing?

My empathy is going to the people who are alive and suffering from similar mental health issues today that could be helped if we told the truth about why Swartz is dead.

I answered the question in the first comment.

> Multiple prosecutors (Ortiz, Heymann), the judge (Gorton), and institutions (MIT, JSTOR) wantonly pursued an extreme perversion of justice in full knowledge of Swartz's mental state.

What is JSTOR doing on that list? After Swartz was identified and arrested, JSTOR said that they would not pursue a civil case against him, and they were not interested in seeing him criminally prosecuted. As far as they were concerned the downloading had stopped and the matter was done.

I'd hope it would encourage them to be slightly less passive white knights in future.

Reads better without the first line.

(And yes, I often fight the temptation to insert a line such as that where it's richly deserved. Usually successfully. If I can't, I try to at least be creative and somewhat indirect.)

> I mean if the ex had maintained years of abuse and was threatening the person's life - yes? Yes we would?

In fact, we have!

https://www.huffpost.com/entry/jessica-haban-domestic-violen...

When a police officer shoots a kid with their back turned, wearing headphones who couldn't hear the cop say "stop", is the police officer responsible for the kid's death?

Where does responsibility stop?

I am sorry, but that is a ludicrous analogy. Of course I would blame the police in that situation. However Swartz is the one that figuratively pulled the trigger not Ortiz. A proper analogy would be the cop arresting the kid and the kid hanging themselves in their cell. It is hard to blame the police in that situation because no one would expect the kid to hang themselves.

And for the record, I am general not of fan of the police. You can dig into my old comments and see various anti-police rhetoric to the extent that it fits into normal HN conversations. But that doesn't mean police or the legal system are responsible for everything bad that happens. Authorities can't be expected to be omniscient and foresee any possible extreme response like committing suicide.

Given your repulsion, I'm going to assume that means you do think it would be the cop's fault. Why, though? The cop is within their right to stop someone they find to be doing bad things; and the person ignored requests to comply, so the cop needed to stop the danger they perceived. Maybe the kid's walkman looked like a gun. The cop was doing an extreme, but technically available, option for what they could do.

But your own "proper analogy" doesn't match either.

What's more accurate would be someone is arrested for stealing an iPod. They did, actually, steal that iPod. They go to jail, and then they're informed, from every angle, that the penalty for stealing the iPod was going to be 200 years in prison and 14 million dollars in fines. They'll also have a felony record, so even if they get let out on early release, they'll never have a job.

Their. Life. Is. Over. For iPod theft.

Of course, the law on the books says it'd be 1 year in prison, minimum, and $500 fine, minimum; but, this DA threw the book at them, and promised it would all stick. 200 years in prison, 14 million in fines.

This person knows, now, that, at best, they're going to have a year or two of their friends coming to see them, maybe once a month, in prison, and then they'll be forgotten about, to live alone forever.

Because it was an iPod, they won't be allowed to work any of the technical jobs, because they might break the law again, or something - some other baloney excuse.

They've also watched tons and tons of TV that show what prisons do to their gangly selves, and they're not ready for that, either. They know they'll be abused and harmed.

So they decide to protect themselves because this DA also has a history of winning cases they bring to the court, at the strength of penalty that the DA requests.

How is it not the DA's fault of over-prosecution?

>The cop is within their right to stop someone they find to be doing bad things

No they aren't. A cop has no right to kill someone unless that person is an immediate threat to the safety of others. A person calmly walking away is not a threat. Considering the number of guns in this country and the laws of many jurisdictions a person with a gun in not necessarily a threat either. Cops in this country are way too trigger happy.

>Their. Life. Is. Over. For iPod theft.

Prison does not mean their life is over. Suicide means their life is over. Plenty of people live happy and fulfilling lives after getting out of prison. Acting like this person's life is over because of potential jailtime is an insult to anyone who has served time.

And you are also ignoring that this person hasn't even been convicted or sentenced yet. As other people in this thread have stated, it is unclear if Swartz would have even served time for this even if convicted. The treats of the maximum penalty were potentially a bargaining tactic to get a plea deal. That is something that happens constantly in this country and another facet of our legal system that I don't support.

> Prison does not mean their life is over. Suicide means their life is over. Plenty of people live happy and fulfilling lives after getting out of prison. Acting like this person's life is over because of potential jailtime is an insult to anyone who has served time.

200 years. They have no expectation of ever leaving prison. It’s very easy for someone to believe that their life is forever over and that everyone they’ve ever known or loved will quickly stop paying notice to them.

> And you are also ignoring that this person hasn't even been convicted or sentenced yet.

That didn’t matter. When you have people standing over you, confidently declaring that no, really, you’re going away forever, the case against you is very strong, impenetrable even, this is all your fault and you’re a failure and people will laugh at your absence. That does *a lot* to a person.

> The treats of the maximum penalty were potentially a bargaining tactic to get a plea deal. That is something that happens constantly in this country and another facet of our legal system that I don't support.

Arguably, it’s psychological torture.

Just because a lot of so-called criminals can survive it without being overwhelmed to the point of suicide doesn’t mean they all will.

No one thought Swartz would actually get 200 years in prison. Sure, his situation sounds more dire if you exaggerate it beyond reality.

Apparently Swartz did. I imagine *plenty* of neurodivergent people would. Someone says “you’re on the hook for a 200 year in prison crime”, what else would someone who thinks literally think that means?

Firstly, the max penalty was 35 years not 200[1]. Even 35 years wouldn't be his entire life.

He also wasn't only hearing the voice of the prosecutor. He also assuredly had people telling him more realistic outcomes. Maybe that message never got through to him because he was not in the right mental state. It is possible that with the right people to talk to he would have realized there was plenty of reasons to continue living. That is why I think it is important to be honest about what killed him. We need to normalize the type of struggles he went through. We should make it clear that if even he can succumb to mental health problems that there is no outsmarting something like this. That is a more valuable lesson than "the district attorney has blood on her hands".

[1] - https://web.archive.org/web/20120526080523/http://www.justic...

> Would we blame that person's ex?

Yes, if their ex, old boss, etc. was a federal prosecutor that was going to lock them in a cage full of criminals.

I mean seriously: Imagine if some college kid was working at Subway and their boss was trying to lock them in the store’s basement, where they were keeping hundreds of criminals, and the kid’s only escape was death. Imagine if your sibling’s spouse forced them into a dungeon and your sibling killed themself. Would you blame your sibling or the wrongdoer?

"Establish some sort of line early that you are not willing to cross. Otherwise you might find yourself one day with blood on your hands, having forgotten that the law is not an end in itself..." Somewhere a prosecutor is mulling over this decision currently, with the beating heart of Mr. Julian Assange. Individuals as diverse as Cornell West, Ai Weiwei, Joe Rogan, Susan Sarandon, Tucker Carlson, Jimmy Dore, and Eric Weinstein support his freedom.[0] [0] https://mobile.twitter.com/AgramSeth/status/1471170511782690...

“I would write things about stuff I saw at the school — that I thought would irritate people”

Ugh. I hate people that like to pretentiously crap over what others give them in order to signal their sanctimoniousness.

Also, don’t do the crime if you can’t do the time.

> Ugh. I hate people that like to pretentiously crap over what others give them in order to signal their sanctimoniousness.

> Also, don’t do the crime if you can’t do the time.

So you are tone policing the author's "sanctimoniousness" but also support Ortiz completely destroying a young man's life over a pretty minor copyright issue?

Strange ethics ...

Spare me. Losing a loved one sucks - we all understand that. Exploiting that grief to generate sanctimonious rage towards Ortiz is unfair.

I’m occasionally a criminal defense attorney and a former overly-charged defendant myself. I’d blame his attorney before Ortiz.

How about "the time should be reasonable and proportionate to the crime actually committed" and "the crime should actually be a crime" and other related concepts.

"Don't do the crime if you can't do the time" is pretty authoritarian, as far as quips go.

Why are we going after Carmen Ortiz again? Prosecutorial discretion is the law of the land, after all. I get it, it wouldn't get as many clicks as criticizing lobbyists, lawmakers, and deadlocked legislatures throughout the country that literally wrote the laws Ortiz enforced. That's a much more complicated argument and requires nuance.

The far right and far left (of which Matt Bruenig is decidedly a part of) are absolute experts in propping up strawmen instead of solving problems. Slacktivism at its finest.

It's important to not forget people who perform harmful, malicious acts while in power to prevent them (when possible) from obtaining power to do it again during the remainder of their lifetime. Checks and balances, actions have consequences, citizen responsibility, and all that jazz.

I didn't take this piece as "going after" Ms. Ortiz, but as "never forget", which seems like a fair approach to a public figure and their actions while in public office.

Let’s not forget:

“On July 11, 2011, he was indicted by a federal grand jury on charges of wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer.[15][91]”

So a grand jury of regular ole citizens decided to indict - because there’s no dispute that he did what he was accused of.

“On November 17, 2011, Swartz was indicted by a Middlesex County Superior Court grand jury”

So a second grand jury thought he should be charged too.

“ prosecutors offered to recommend a sentence of six months in a low-security prison”

So he was offered 4 months of actual time in white collar prison.

“Swartz and his lead attorney rejected the deal, opting instead for a trial where prosecutors would be forced to justify their pursuit of him.[98][99]”

Uh, no. That’s not how it works. The prosecution doesn’t have to justify the case. They have to prove you committed the crime you are charged with. Whether you or the jury think it’s a waste of time is legally irrelevant.

And then Swartz took his life.

It’s not fair to pillory Ortiz when 1) 2 grand juries indicted Swartz 2) The prosecutor offered a reasonably fair deal (and there’s no indication it wasn’t up for negotiation) 3) We don’t know what sentence Ortiz would have actually recommended at sentencing.

I’m sorry, if Swartz killed himself because of this case - that’s just moronic - and Ortiz doesn’t deserve the blame. As a lawyer, I’d feel a hell of a lot more guilty if I was Swartz’s attorney than I would as Ortiz.

> So a grand jury of regular ole citizens decided to indict

As the old saying goes, a grand jury would indict a ham sandwich if the prosecutor told them to.

Edit: I'm not sure how many are aware of how grand juries work.

The prosecutor presents evidence, but the defense is generally not allowed to present any evidence (the defense isn't even allowed to be in the room unless they are explicitly summoned). Grand jury proceedings are secret. If there is an indictment, the defense will not even be allowed to see what evidence was used.

Thus, it's not surprising that a manipulative prosecutor can sometimes get a grand jury to issue an indictment based on flimsy evidence, leading to the saying about them being persuaded to "indict a ham sandwich".

Most common law countries abolished grand juries long ago, and about half of the U.S. states no longer use them at all (even though they are still technically allowed).

In most cases grand juries are optional. The prosecutor does not need to use a grand jury to file charges. So, prosecutors use the grand jury as a way to pass the buck.

They are not (tv news cycle nuttiness aside)used to railroad the innocent.

We do know what sentence she would've recommended. She and Heymann were pushing for 35 years. More than many killers and rapists get, by decades at that. The prosecution even compared him to a rapist.

https://www.huffpost.com/entry/stephen-heymann-aaron-swartz_...

https://theintercept.com/2021/02/15/marty-walsh-aaron-swartz...

And let's not forget why he turned down the plea deal: HE WASN'T GUILTY OF ANYTHING. Jstor and MIT both didn't want a prosecution, and "MIT’s site license for JSTOR [allowed] for “unlimited” use of the JSTOR library." The prosecution claimed he was going to release the downloaded materials publically, which might have constituted copyright infringement, but he had not actually done so at the time of his voluntary surrender.

Thanks for the correction. I don’t know about federal court, but in (my) state court the judges really don’t care what the prosecutor wants. They go by the guidelines, the sentencing report, and how big of an asshole the defendant is. In my state Swartz would have gotten the usual - two years probation, restitution, no contact with victims.

Anyone do federal criminal work and can guess how the presentence report for Swartz might have read?

>if Swartz killed himself because of this case - that’s just moronic

All other arguments aside - calling the actions of someone with severe mental health issues moronic is the epitome of callousness. What's next, the R word?

Come on, show some class.

My point is that he didn’t kill himself because of the case because that wouldn’t make any sense - it must have been mental illness.

Therefore if it was his mental illness, it’s unfair to blame Ortiz.

>Why are we going after Carmen Ortiz again? Prosecutorial discretion is the law of the land, after all.

One doesn't follow the other. If anything, the fact that certain things are left to personal discretion makes it more important for people to speak up when they disagree. In the absence of law to constrain the behavior of the Carmen Ortiz's of the world, social pressure is all we have.

> absence of law to constrain the behavior of the Carmen Ortiz's of the world, social pressure is all we have.

How about changing the laws? You do realize that we literally pick the law-makers, right? I guess writing blog posts is easier.

I always wonder why people assume writers are

a) not doing anything else to further goal and

b) that writing is absolutely, totally useless even though lots of people read it and they, themselves, felt compelled by the writing to respond

I guess they haven't heard the idiom, "The pen is mightier than sword"

Because she tried to rob Aaron Swartz of his future in order to further her career. Indirectly, it worked. Carmen Ortiz used her authority to suck.

>Prosecutorial discretion is the law of the land, after all.

I don't understand what you're getting at. She was given discretion and she misused it. That seems like a really obvious reason to go after her.

When the regime in Iraq failed, I wonder how many people went after judges and prosecutors to settle scores. These people use decorum to present themselves as righteous arbiters of justice and civility, but often are nothing more than political hacks destroying countless lives.

> I don't understand what you're getting at. She was given discretion and she misused it.

Discretion means that you're permitted to make whatever decision you think is best. Misusing discretion is an oxymoron.

> Misusing discretion is an oxymoron.

IANAL (are you?) but "abuse of discretion" seems to be a thing

https://www.law.cornell.edu/wex/abuse_of_discretion

https://codes.findlaw.com/us/title-5-government-organization... (2-A)

But showing someone has poor discretion is the point.

As an example, defending someone that had such generally agreed poor discretion is not, generally, showing good discretion either.

You're conflating the colloquial use of the word "discretion" with the legal term.

Nothing about either use makes her decisions immune to criticism.

She is a lawyer, not an official in the medieval church.

I don't really follow. The claim wasn't that she did something she wasn't allowed to do, by law. The claim is that she crossed moral lines by choosing to do so. Or am I missing some context here?

Or do you have a different meaning on what discretion means? Legally and otherwise.

That's disingenuous, "Discretion" is also defined as "the quality of making good judgements" and "the ability to make responsible decisions" and "the ability to make intelligent decisions". I don't think Carmen exhibited any of those qualities of discretion.

I think a better word for Carmen is unethical bully.

That's fair, imo still a technicality. A better phrasing would be "she was given discretion which she used for her own personal gain."

Sorry, are you arguing that the mere fact that something you do isn’t illegal means you can’t be criticized for it?

Would it follow that you can’t criticize Joe Biden for any of his decisions as long as they aren’t actually illegal? I seriously can’t make sense of your position. What’s under dispute is not whether the act was legal but whether it was a horrible idea.

It’s not a strawman. She’s the direct cause, not the law. If there’s a different prosecutor, it wouldn’t happen, he wouldn’t die.

> The far right and far left (of which Matt Bruenig is decidedly a part of)

Matt Bruenig is not far left, cf. https://en.wikipedia.org/wiki/People%27s_Policy_Project, he's a democratic-socialist, maybe at most a socialist.

Far left is quite something else! Cf. https://en.wikipedia.org/wiki/Far-left_politics.

Carmen Ortiz bullied Aaron Swartz into committing suicide.

She's worse than the 4chan/kiwifarms trolls, because she used her incredible power and position against him.

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