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Comment by binarymax | Hacker News Reader

The witch hunt was inevitable due to the sheer emotion we all felt during this tragic event. It is correct to step back and not look at getting one or two attorneys fired - but rather look at the law itself, and reflect on the absolute absurdity of how it can be applied. If the law is the law, and the law says that someone downloading academic papers carries the same punishment as a murderer or rapist, then the law needs to be changed. A fundamental shift needs to take place.

We can take a page from: "Dear Congress, It's No Longer OK To Not Know How The Internet Works"

And follow with: "Dear Attorneys, It's No Longer OK To Not Know All Hacking Isn't Terrorism"

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The reason to seek to end the political career of Ms. Ortiz is not because her hounding of aaronsw was inconsistent with the behavior of other federal prosecutors, but rather precisely because it was "what any good federal prosecutor" would have done.

There are so many criminal laws on the books--and federal law enforcement powers are so great--that any individual who is identified as a political target can have their lives ruined, regardless of the moral justice of the charges they face.

Furthermore, in spite of what this article says, prosecutors frequently use their discretion when choosing to file charges. The beneficiaries of that discretion are often the politically connected, examples of which are numerous and infamous.

In other words, the filing of these charges against Aaron Swartz was an inherently political act and requires a political response.

That these charges were morally odious cannot be doubted, and yet articles like this ask, were they nonetheless correct? By asking that question they attempt to exculpate Ms. Ortiz and her subordinates.

This prosecution was "correct" only because people like Aaron Swartz who seem powerless are the kind of people who go to jail all the time. The effort to end Ms. Ortiz' career is an effort to make prosecutions like this "incorrect" by making people like Aaron Swartz more powerful, because just as the powerless are targeted in this very way all the time, similar digressions by the powerful are frequently overlooked.

When mercy and proportionate justice is granted only to the powerful, then any quest for mercy and justice must concern itself first and foremost with power.

In the American political system, power is gained and exerted by imposing political consequences on those politians who transgress against your objectives.

http://www.harveysilverglate.com/Books/ThreeFeloniesaDay.asp...

I think the attorneys getting fired would be a great first step. After all they hounded Aaron and people like him to send a "message". Let them get sent a "message" in return.

Yes, after all, "an eye for an eye" is a great system of justice.

No, they shouldn't be fired for doing their job, regardless of the consequences.

It is a tragedy that Aaron took his life, but nobody can argue that it was an appropriate response to the challenges posed to him.

You can't blame a prosecutor because Aaron reacted violently to them doing his job, just as you can't blame violent video games for Columbine or D&D for kids hurting themselves in the forest with swords.

They are all contributing factors, but it is the core mental illness that is at fault.

> You can't blame a prosecutor because Aaron reacted violently to them doing his job

Perhaps they cannot be blamed for his response, but a myriad of evil things have occurred in this world at the hands of people "just doing their jobs". The mere fact that someone is being paid for them doesn't justify vicious, cruel, and/or outrageous actions that have predictably bad outcomes. Further, it could easily be argued that their pursuit of this case went beyond the normal scope of their jobs.

While federal criminal cases are technically brought on behalf of the government, in many cases the charges are dropped when the victim expresses disinterest in having the individual prosecuted. In this case, they were attempting to lock someone up for decades in a case where the alleged victims didn't even want the perpetrator prosecuted. Since the victims had no interest in it, the only remaining motivation for such an aggressive prosecution would be to put another notch in the belts of the US Attorney's office prosecuting the case. That is hardly an acceptable use of taxpayer resources. It is an abuse of power aimed at furthering the individual careers of the lawyers involved.

> It is an abuse of power aimed at furthering the individual careers of the lawyers involved.

Does this mean that if you win a case where the actual victim doesn't even care anymore still gives you a good reputation?

It means that a high profile conviction such as this would have been a nice boost to their resumes, regardless of the particulars. The legal profession is somewhat unique in that being perceived as an aggressive, cold-hearted, and ruthless individual with the ability to squeeze out a win even when the facts and circumstances don't support a win is a positive thing.

Sorry, but no, they weren't "just doing their jobs". They were operating way outside the parameters of their jobs, which - as extensions of the Executive Branch - are subject to oversight by the Judicial branch which, in turn, is subject to direct popular oversight in the form of trial by jury.

The critical fact is that the Prosecutors were doing everything in their power secure guilty pleas without going in front of a jury, where they were very likely to lose. That's why they were offering a mere 6-8 months in jail on multiple felony confessions vs. 35 years in prison, a $1mm fine and a trial process designed to be financially ruinous. In other words, their "offer" hinged on their ability to place an insurmountable wall between Aaron and a jury. In doing so, they avoided a key provision of the Constitution. The breath-taking abusiveness with which they pursued him only underscores why that provision was made in the first place.

http://online.wsj.com/article_email/SB1000142412788732458150...

Faced with power this unchecked and malicious, most people simply cave, which is why fewer than 10% of Federal crimes end up before a jury. But apparently, Aaron considered life as a convicted felon to be a fate worse than death. As with so many other things, he simply wasn't like most people. While his suicide brought an unusual amount of attention to the abuse that's going on, the abuse itself is far from unusual. Indeed, it's become par for the course. That's the issue. That's why the response is about people regaining control over a terrifyingly out-of-control system.

Extending this to the specific individuals is essential, because that - and only that - can reflect the moral dimension of the situation. After all, we're not talking about a busted sewer pipe here, or a faulty traffic light leading to an especially bad traffic accident. The DOJ's standard operating procedure represents a calculated erosion of democratic safeguards. That's what makes their conduct a violation of their oaths and crime against the people. So yes, the public's reassertion of its moral authority over its government should absolutely involve severe punishment for those who have so egregiously betrayed the public trust. Given the context, "career ending" is hardly too high a price for the specific individuals to pay. As any prosecutor will tell you, the law is about deterrence as much as it is about punishment.

An eye for an eye? Please, we're talking about firing some people, not a dozen+ felonies and decades in prison.

>You can't blame a prosecutor because Aaron reacted violently to...

That is not what we are proposing firing them for.

> them doing his job

They did a shit job of that, and that is what they need to be fired for.

Hounding someone with threats of bankruptcy or of imprisonment for longer than they'd been alive is very different from them playing games.

Your comparison of a suicide to a mass killing in order to plead the just world fallacy is ill chosen at best.

> You can't blame a prosecutor because Aaron reacted violently to them doing his job

We seem perfectly happy blaming bullies when people commit suicide (including incidents where both parties were adults). Given the position of relative power of the two individuals, it's not unreasonable to draw a parallel there.

Nobody called for her imprisonment or hounding her to the point where she's going to hang herself. Just a corrective measure to a system that has clearly spun out of control. A change of career.

If the job of the prosecutor is to persecute someone, even after the "victim" resolved their issue with the offender, then they have a shitty job and should just up and quit.

There are better jobs out there: ones that don't destroy the lives of good people.

Even good people fuck up. Aaron committed crimes and got himself in trouble. Aaron then killed himself. There are many people who could have done things differently to prevent this from happening but why should we point fingers?

JSTOR, the offended party, sorted it all out with Aaron out of court. It was an issue of copyright infringement, not theft, but Ortiz characterised it as such. She decided to pursue it out of some misguided and rabid attempt at sticking Aaron's head on a pike a a warning to others, and to make her CV look good.

There are fingers to point, and they need to be pointed in the right direction.

http://aynrandlexicon.com/lexicon/patents_and_copyrights.htm...

Interesting take, but as with much of Ayn Rand's work, fundamentally flawed. An idea can be had independently. The idea if a computer was independently conceived upon in the UK and in Germany at around the same time. Intellectual Property laws weren't needed to "protect" the idea.

All that I really being said is that the person who comes up with an idea should be properly compensated. You don't need IP laws to do that. Many businesses agree - they file patents for inventions for their employees, and pay them a wage (and possibly a bonus).

The job of the prosecutor is indeed to continue the prosecution, even if the victim and the offender have resolved their issues. Think of a case of some victim being coerced to have the charges dropped. Would you prefer the prosecution to stop or would you prefer if the crime was resolved?

I'm sorry, was JSTOR coerced into asking for the charges to be dropped?

In this case probably not, though public pressure may have been a part of it. And MITs statement was less clear on that matter. However, this is not for the prosecution to decide. The prosecution should treat each case equal. If criminal charges haven been brought forward, they must be prosecuted or dismissed solely based on evidence, not based on the victims actions.

Please note that I do not think that the way the prosecution pushed the charges was right.

If criminal charges haven been brought forward

Neither JSTOR nor MIT brought forward criminal charges; that was done by the US Attorneys themselves. So saying "this is not for the prosecution to decide" is wrong--the prosecution decided to bring charges, so it's their responsibility if the charges were way out of proportion.

Strictly speaking this is not correct. JSTOR and MIT cannot bring criminal charges; only the US government may. They can bring civil charges on their own behalf in addition to the criminal charges, and whether the 2 parties agree to settle out of court is relevant to any civil charges brought against the defendant. This is the basis for the difference between civil and criminal law - civil law covers disputes between 2 parties and serves as a framework if the 2 parties cannot reconcile.

On the other hand, criminal actions are not just about the grievances between the defendant and the victim of the crime. In principle, crimes are committed against the people themselves (hence the case naming scheme exemplified by the United States vs. X or The People of Illinois vs. X). Even if the victim isn't particularly interested in pursuing the prosecution, the prosecutor is still within his rights to try the case. Indeed, in many violent crimes such as rape, the victim is not interested in aiding the trial. While this can sometimes derail the prosecution, it need not. Pursuing the case absent the victim's full cooperation cannot ipso facto be considered prosecutorial abuse.

Strictly speaking this is not correct.

How so? Nothing you said contradicts anything that I said.

Even if the victim isn't particularly interested in pursuing the prosecution, the prosecutor is still within his rights to try the case.

Yes, and if the prosecutor decides to do so, he/she is responsible for that decision. That was my point.

Yes, I contradicted your assertions that

a) it is MIT and JSTOR that have primary discretion in whether a criminal case moves forward (it is the government's sole discretion)

b) MIT and JSTOR are in fact responsible for bringing criminal charges (they are not - they can only bring civil charges)

c) that the prosecutor is responsible for the severity of the penalty and/or the defendant's emotional response to that penalty

My disagreement with your third assertion was more implicit so let me clarify a bit.

First, it is not the prosecutor's job to question whether a law's penalties are in proportion to the crime it proscribes when deciding whether to bring a case. Discretion over the severity of the punishment is left to the sentencing phase of the trial if the defendant is convicted, and it is highly likely that Aaron's sentence would not have been the maximum had he been found guilty (a fact I am sure his lawyers made him aware of).

Second, under what reasonable standard can a prosecutor be held personally responsible for the emotional state of the defendant? Should it be acceptable for criminal defendants to pressure prosecutors into dropping cases by threatening self-harm or suicide in the hopes that a public outcry will harm the prosecutor's career? Try to ignore for a moment that the defendant in this case has your sympathies. Would you accept that tactic from a serial killer or rapist?

It may be that the law itself is unnecessary or counterproductive. I'm certainly open to the argument that at least publicly funded research ought to be open to the public. Yet it is still the law of the land. From the facts of the case, Aaron committed an obvious crime and behaved as though he knew it were a crime. The potential price of civil disobedience is that you will in fact end up punished for it. In the end, his story (like Rosa Parks and others before him) may end up bringing about the change he wants. But to say that the prosecutor abused her authority or was personally responsible for his death is an emotional response without basis and runs counter to the very idea of a criminal justice system.

I contradicted your assertions

I didn't make any of those assertions. Other people in this thread might have, but I didn't.

it is not the prosecutor's job to question whether a law's penalties are in proportion to the crime it proscribes when deciding whether to bring a case.

I didn't say it was. I agree that the prosecutor doesn't decide what the possible charges and punishments are; those are taken as given. But the prosecutor certainly does decide which cases to prosecute at all, and how aggressively to prosecute them. As I understand it, this case was prosecuted extremely aggressively.

under what reasonable standard can a prosecutor be held personally responsible for the emotional state of the defendant?

I didn't say he was (I realize others in this thread have, but I didn't); I agree he isn't. But that's irrelevant to whether or not this prosecution was way too aggressive for the actual harm done; IMO it was.

The potential price of civil disobedience is that you will in fact end up punished for it.

This is quite true. But it doesn't make the punishment fair or just.

to say that the prosecutor abused her authority...runs counter to the very idea of a criminal justice system.

Maybe it runs counter to the idea of a perfect criminal justice system, but the one we have is far from perfect, and prosecutors know that. In a perfect system, every instance of a given offense would be prosecuted the same, every defendant would get a fair chance to defend themselves, and we would have a reasonable expectation of a just outcome. In the system we have, because so many things have been criminalized, there are far more offenders of the letter of the law than can possibly be prosecuted, and defendants are at a huge disadvantage vs. the system. So who actually gets prosecuted, and what chance they have at a fair hearing, ends up being decided by the prosecutor's judgment, which is often colored by their personal beliefs or political leanings. Under those circumstances, IMO it is quite legitimate to question a prosecutor's judgment when a case is treated far more aggressively than seems warranted by the actual harm done.

This is not an eye for an eye. Aaron's dead, and we're not talking about killing the attorney. But firing her? Absolutely.

>You can't blame a prosecutor because Aaron reacted violently to them doing his job,

Their job is to perpetuate violence, rather justified or not.

Some are criticizing you, but I personally think this is the right answer. US Attorneys and the Fed "gotcha" system of justice need to be contrained.

I agree that in this situation the laws on the books should also be under review. But prosecutors have some discretion as to whom and what and to what extent they'll pursue a case. Regardless of where they might be on a spectrum from noble, high minded civil servant to the most egregious political opportunist, a consequence to the prosecutorial action this case (public opinion, increased scrutiny, career consequence severe or light, etc.) could help establish an incentive for others in the future to act differently. Not legally binding, not compulsory, but just a element of "Let's not make that mistake again."

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