Philip Greenspun: Aaron Swartz | Hacker News Reader

Philip Greenspun: Aaron Swartz

blogs.law.harvard.edu

245 pointssoundsop28 comments

“Generally the minimum cost to defend a federal criminal lawsuit is $1.5 million.”

Wow, the US justice does really need a reform.

That is appalling. Effectively, by simply charging someone with a crime, the government is actually immediately convicting them of a crime with a de facto punishment of a $1.5 million fine. Forcing someone to pay $1.5 million to defend themselves, is, in and of itself, depriving that person of property without due process of law, and therefore a violation of the fifth amendment.

Quite frequently, you will be blocked from using your assets to defend from such suits (your assets will be frozen), so good luck attempting to spend your $1.5 million anyway.

The book Three Felonies a Day talks about this (the main focus is how the government's tactics for working its way up the food chain to the apex criminal, which is not related to Aaron's story, but the author's exposition of costs and property restrictions are relevant). http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/...

Why is anybody not fixing it? Nobody even talks about it. A large majority of the tech world supported Obama. But the issue of piracy, prosecution and law never ever came up. Why is nobody bothered? When will this shit end?

> A large majority of the tech world supported Obama.

I didn't. Fuck Obama. He had voted to give retroactive immunity to telecom companies for spying on American citizens when he was a senator. That showed his true character. Everything else was just marketing.

He even got awarded the "Marketer Of The Year" award from AdAge. Beating Nike, Coke, and Apple. Since then I feel largely my hunch has turned out to be true. We are still at war, we are still engaged in extra-judicial rendition, we spend our tax money trying to show 25 year old programmers in jail for 30+ year for downloading scientific papers, the list goes fuck.

What advantage to those in power is there from "fixing" this? To them it is not broken, it is working as designed and intended. Things didn't get this way by accident.

They are also known to seize assets so even if someone has money saved for defense, those can easily disappear.

Your argument holds true for any dollar amount above zero, and it's hard to imagine how we could get the average cost to zero. If you want to keep the average low, you will need to find some way to prevent a mafia boss from spending millions of dollars. Make every defendant use only a state provided attorney?

The state could provide every defendant a line of credit with a limit roughly equivalent to the amount the state prosecution is spending. If the defendant wins, the balance is paid by the state. If the defendant loses, then the balance must be paid back by the defendant.

Sounds fair, but also kinda like the system we have. For one thing, all the evidence the prosecution pays for is supposed to be provided to the defense. Perhaps not the evidence the defense would like, but ideally the facts are all there and the court case is about telling a story that fits.

I don't want to take the number at face value because it includes the amount spent by guilty people trying to avoid jail at any cost. Kenneth Lay no doubt spent a pretty penny on his defense.

In the case of USA vs. A Swartz, there were already over a 100 filings and the case had not even gone to trial yet ( http://ia700504.us.archive.org/29/items/gov.uscourts.mad.137... ). All that back and forth requires billable hours from a very pricey attorney, the money adds up very quickly. I do not know enough about the legal system to determine how the discovery/pre-trial motion process could be made more efficient and cheaper for the defendant.

I posted these question in a comment here:

http://news.ycombinator.com/item?id=5048729

I can imagine and believe that defending yourself against the US government is costly, what I don't understand is what the breakdown of all expenses would look like.

What services do you need to purchase/hire that you wouldn't get in a normal court case?

Is it because you spend a lot more time in court or in preparation?

Do you need to choose among lawyers with special certification? What type of paperwork do you need to produce?*

In the Latin America (where I am) I could easily see the biggest expenses being bribes and it is in general what I think of when you need a problem solved. (Not a good thing at all...)

P.S. Making an infographic about a case like this vs a regular court case would be an interesting project and could help us make the case for Aaron...anyone want to help by looking for data / making one on your own?

Long story short:

The type of lawyer(s) who can even competently take this case exist in small numbers and are the big law primadonnas that work for $500 an hour minimum. Just interacting with the government prosecutors to get a scope of the charge and starting to build a defense, before one word is said in court, is easily $200,000 (400 billable hours is nothing) in a trivial case and if you really want to win a 'difficult' case, then expect a lot more.

On top of it, your chances of winning are still pretty slim. Meanwhile your prosecutor has the practical equivalant of not only infinite wealth but the support of "terrorism" and "organized crime" legislation and powers that pretty much strip you of many rights and usually lead into freezing of your assets even if you have that kind of money.

While conservatives in America tend to be pretty wacky, from my perspective as a liberal, I do agree with them regarding federal law enforcement being out of control. Perhaps it was justifiable to have these powers when dealing with actual terrorists and mafioso's but they use these very same powers against computer nerds and potheads.

Obama could reform this if he chose to. I hope this story has legs. This is all quite insane.

I wonder, if there was a law that all funds spent on your side in a trial, had to be matched by funds given to the other side to fund his side as well -- would that work?

If the DA's budget per trial is $1 million, then lawyers of the defense must also be given $1 million. If a corporate sues anyone, they have to give them the same budget their lawyers get for their own defense.

Sure, figuring out the budget used is tricky, but even if it is not accurate, it could help balance the situation.

My father owns a small payment processing company that does electronic processing of checks. One of his employees was busted by a federal task force for laundering a lot of money. The task force initially accused my father of being the ring leader. My father cooperated fully with the investigation, gave the task force emails, documents, etc. He had nothing to hide. They were still threatening him with prosecution so my father hired a very expensive attorney in D.C. and they eventually declined to prosecute. Total cost $20,000.

It's a lot of money but not $1.5 million. A large majority of innocent people don't end up at trial. Even a lot of the guilty people don't end up at trial. My dad's ex-employee became a witness for the government against the money launderers and avoided going to trial.

You have to pay even if you win?

"The English rule provides that the party who loses in court pays the other party's attorney's fees.

Nearly every Western democracy, other than the United States, follows the English rule."

http://en.wikipedia.org/wiki/English_rule

There was an interesting bill introduced into the House recently, the SHIELD, or "Saving High-tech Innovators from Egregious Legal Disputes" act, which offsets the cost of a patent law dispute to the loser.

The issue of legal costs is not only relevant with federal criminal lawsuits, but also with smaller companies and "patent trolls". Taking this into consideration, the SHIELD act seems like a mere Band-Aid.

That's civil court. How much does the crown pay for criminal defense?

I dont know about england, but where I come from (denmark) if you win a criminal case you dont have to pay anything.

If you loose you have to pay for your own lawyers and any technical inquiries. You never have to pay for the prosecutions lawyers.

I had no idea it was that high. What does it apply to? If I'm falsely accused of robbery, should I expect to pay 1.5 million to defend myself?

What, defend yourself ? What would happen to the prison workforce if poor people could avoid conviction simply because they were innocent ?

The typical accused criminal in the US pays exactly zero to defend himself. The counties and states are more efficient than the feds, and as it happens, your typical burglar/rapist/drunk driver/drug dealer is, in fact, guilty, and plea bargains a year or five in the pen.

But, when the feds want to railroad a person, well, that person gets railroaded. He probably should have skipped bail.

Robbery is not a federal crime.

Train robbery and bank robbery, on the other hand...

That blew me away too. I do not know how any one in their right mind could justify that.

Any one explain it?

There must be an argument for it. How does the average American justice in a US court?

I had forgotten that Aaron was the 12 year old whom won the ArsDigita prize. Thank you Philip.

Alas, people who suggest fighting terrorism with Anything other than terrorism do not have the slightest understanding of terrorism. You can try and be the bigger man, but please just understand that you will not stop anyone. If this wasn't true, we would not have armies in just about every country on earth, because, well, you need tanks to fight someone with guns, and guns to fight someone with knives. A government that requires you to have a minimum of $1.5 million to start to defend your liberty is anything other than a democracy.

Sadly, my friends, the way in which we want to fight this condition is not through firing (1) person, or signing petitions. That will only allow people to talk about it for a little while until Lil Wayne drops another album, then it is off to other news.

They have proved to us they can use "their" laws to force a young man into taking his own Life. While the answer is not to take another life, it is to hit them where they can feel it without hurting them physically.

I suggest Anonymous.

The lawyers asked me “Why would someone download a huge body of academic journal articles?” (my response was “I would be guessing but my best guess would be that they wanted to experiment with some kind of text processing algorithm. [...])

Is it really so difficult to imagine for some people that perhaps he simply wanted to give the world free access to information?

Reply on news.ycombinator.com