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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

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.

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.

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.

Disbarring Heymann for misconduct would effectively end his career in law. That's probably the most that could happen to him (aside from SEO following his name for the rest of his life as an incredibly douchey scumbag).

I think you're right. Ortiz position is based on her reputation, while Heymann reputation is based on his position. Meaning for the greatest effect you would remove Ortiz reputation (i.e. stopping any attempt for a political campaign) and get Heymann removed from his position (i.e. demoted).

>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.

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.

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!

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.

First of all, let me point out that I agree that sentencing is a total cluster f--k.

That being said, the fact that you didn't win on a count doesn't mean that you were "falsely accused." The standard for winning on a count is "beyond a reasonable doubt" or say 95%. The standard for actions being considered in sentencing is "more likely than not" or 50%.

Say the trial proves a 75% probability that you did counts 1-12, and a 98% probability that you did count 13. That means you can't be convicted on 1-12, but because it's more likely than not you really did it, the judge is allowed to consider those counts in determining your sentence, but only up to the maximum for the single count.

The rationale behind this is that the judge is also allowed to consider, in your benefit, things like other peoples' opinions of your character, etc. You don't have to prove beyond a reasonable doubt that, e.g. you're a good husband and father. This cuts both ways--the prosecutor also doesn't have to prove beyond a reasonable doubt that you beat your wife.

Not saying I agree with it, but it has a certain symmetry.

The real problem is that the maximum sentences for any given count are totally ridiculous.

It's not just that losing 92% of their case doesn't cost the prosecution at sentencing. It's that those charges continue to pay dividends to them, even though they're counterfeited by the actual trial.

It seems like one good inoculation against overcharging would be for damages and facts establishing conduct to be fenced off by which charges succeed and which fail, so that failing to convict on a charge puts part of the sentence at risk, as opposed to filling up some freakish "community chest" of sentencing accelerators.

Even the Granick analysis you quoted earlier came to "over a year" for the probably guideline calculation, not 35 or 50. And it never talked about additional charges adding to the sentence in the "sentencing" portion.

She did talk about each additional conviction adding to the maximum possible sentence for a plea bargain, but then said that the guideline calculation is still the same.

She linked a PDF of hers, and I tried to read it, but ironically it requires HTTP authentication to some journal archive which I haven't paid for and don't have access to.

I've also tried going through the 2011 Federal sentencing guidelines to confirm what you gleaned from Granick, but to be honest they're too byzantine for me to get through in a few minutes with no training.

I guess what I'm trying to say is that I'm not sure how you got from Granick to what you're talking about here. Perhaps I missed a linked article from the site hosting her original article?

Either way I don't see how it would make sense to credit '# of charges' alone in sentencing as it is well-known that in general the prosecution has to bring all charges it can prove related to the case, if only because of double-jeopardy.

"related conduct, even aquitted conduct, is part of the sentencing calculation."

But why wouldn't that be part of the sentencing calculation?

Let's say I get charged under, say, 100(c), with elements of proof [A, B, C] and 100(d) with elements of proof [D, E, F]. They convict me on all of A, B, C (and therefore find me guilty of violating 100(c)). They find I actually broke D and E too, but not F, therefore I'm not guilty on 100(d).

If D and E are related to 100(c) why should a judge not take that into consideration? The jury confirmed those elements of the charge were true beyond a reasonable doubt.

I have heard from somewhere that judges may consider elements that were not confirmed by the jury as long as there's still a preponderance of evidence to support. That could be an issue I suppose, if you suspect the judiciary is on average corrupt. But even that still passes the "common sense" test IMHO.

Either way, what I got from Granick was that the worst element of the sentencing calculation by far was the loss calculations (which could essentially easily be "blank check"ed by MIT), not that the judge is allowed to consider related conduct proven by the defendant.

I haven't seen the Granick analysis. But it's easy to do the guidelines calculation. The base level for fraud is 6, and there is an 18 level enhancement when the amount in question is between 2 and 7 million dollars, as the government claimed. That yields, with no criminal history, a guideline level of 24 and a sentence of 57-71 months if there were no other enhancements. There almost always are. You can drop 2 levels if the defendant "accepts responsibility" which may or may not have happened. There would be 2-3 years of supervised release (no computer) and a fine within statutory limits. The danger with multiple counts is that the sentencing judge may decide to impose consecutive punishments which would exceed the guideline range. In this particular case, which, make no doubt about it, was a political case, Ortiz' office might seek an upward departure because of the defendant's lack of remorse, the PACER incident, and a perceived "danger to the community."

You keep on referring back to your purported legal background. And then in threads like http://news.ycombinator.com/item?id=5049530 it becomes abundantly clear that the rules do not actually work like you claim that they do.

Please stop trying to argue from personal authority. Say your piece. Cite claims that could benefit from that.

Now you may think that Ortiz was likely to lose at trial. However Orrin Kerr's analysis did not agree with you. (See http://www.volokh.com/2013/01/14/aaron-swartz-charges/ if you want to be reminded of that analysis.) As far as anyone here knows, you're a random internet poster who has not proven to be very convincing on the law. By contrast Orrin Kerr is a respected law professor who is commenting on his area of specialty. Therefore he's arguing from much stronger authority than you are. (And he backed up what he said with specifics of the legal charges and relevant precedents.)

Of course if you're just professionally involved, you're not the one that is possibly going to be in a cage for three decades. And if your livelihood not only depends on the existence of these situations, but in fact becomes even more well-compensated as the complexity and therefore stressfulness of them increases, you may even find a way to conjure up justification for the whole charade under some guise of morality and justice, even if for no one other than yourself. And that's a large "part of the reason so many lawyers on HN having been defending Ms. Ortiz".

> 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.

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-l... which among other things explains why Aaron could have accepted that and still wound up with years in prison.

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

Serious question.

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).

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.

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?

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.

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"?

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

Just curious, are there any ethical obligations not to bring a case to trial if they don't believe that the defendant is guilty? Or it's just the chances of winning that matter?

Prosecutors, in theory, are supposed to seek justice, not victories. (Defense lawyers, on the other hand, are supposed to give their client the best possible representation. If the defense gets a guilty guy off, that's the prosecution's fault.)

Prosecutors shouldn't bring a case unless both a) they think the guy did it, and b) they think they are likely to win. We can debate to what threshold of doubt each of those statements hold, but that's the general gist.

Prosecutors are supposed to zealously represent their client, which in this case is the state. The are required to seek "justice" but necessarily that is defined somewhat more narrowly than in common parlance. They are not supposed to substitute their sense of justice (one way or another) for the state's and the people's sense of justice.

Drug laws are really the best example of this. Prosecutors are not allowed to say "I won't prosecute this case because drug usage is a victimless crime." My mom thinks drug usage is contagious in social circles and a tremendous danger to the youth, votes accordingly, and until that changes it's not right for some unelected prosecutor to second guess her.

Explain these funky ethics? 'Beyond a reasonable doubt' is a different standard than 'preponderance of the evidence'. I would think if you have a 25% chance of being able to win on a 'beyond a reasonable doubt standard' against someone accused of, say, murder, it would be unethical not to prosecute.

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.