Comment by codingdave | Hacker News Reader

Comment by codingdave | Hacker News Reader

Federal prosecutors always throw the book at people. That is their job, that is how the legal profession works - 2 sides come at a case from the most extreme positions, knowing that the end result will fall somewhere in the middle. Of course they found inappropriate laws to throw at him. Of course it seems over-zealous. That is how our system works. But people need to realize that prosecutors do not expect every charge to stick. They do not expect to actually get the horrible sentences that they threaten.

Because this case never went to trial, any decisions or reactions based on the worst-case scenario threats of prosecutors are unfounded. Any criticisms of laws being unfairly applied would have been argued in court.

The tragedy here remains that Mr. Swartz needed professional psyche help, and did not get it. A smaller tragedy was that he needed better legal help.

Across the board, this is a horrible story. But people continue to focus on the wrong points. Petitions to fire the prosecutor? Really?

We should be working towards better mental health in our society. I would also love to see a change in our legal system, but that one seems a tougher nut to crack.

Federal prosecutors nearly never take cases to trial, because we provide them plentiful resources and allow them an absurd amount of leeway in threatening people who appear to be politically useful targets. We give their threats teeth by allowing them to say that the victim is liable for a nearly unlimited sentence should he fail to plead out. There are accounts that it's also common to seize a victim's assets to prevent him from paying a real lawyer to defend him. The judges actually recognize that this is cruel & unusual, and have formed an entire extralegal 'sentencing guideline' system for conventional crimes that is entirely at their discretion, separated from the maximum legal penalties by an order of magnitude; You only find out whether you're to be put on this if you dare to try and prove your innocence.

That's no way to run a justice system, particularly as without anyone claiming to have been wronged, and novel circumstances of the 'crime', this was an attempt to legislate / regulate through deterrence via prosecution, or possibly just to punish. Aaron Swartz had already been targeted by the American federal justice system for having the audacity to disrupt the PACER bureaucracy that was being run as a behind-the-scenes moneymaking operation.

Not to mention that even if the DOJ doesn't freeze your assets, defending yourself against the DOJ is an incredibly expensive proposition. It can deplete the life savings of even affluent people.

Even if it's just a 'day on the job' for the prosecutors it's not for the people they accuse and prosecute. Although I understand that that the prosecution in America seems more like bargaining than real justice and that you should always ask for more than you can reasonably achieve in bargaining, I think that the threat of years of your life wasted in prison is not acceptable. I agree with your point about better mental health-care, but the fact that Aaron needed, and did not receive, care does not redeem the prosecutor who drove him over the edge in my opinion.

Saying that it's unfair to challenge the prosecutors behavior because the case never went to court does not seem relevant in light of the consequences the threats have had.

It is unfair to act like this was a singular effort against one man. This happens every day in every court case. I think we agree on that.

I'm not condoning it, I'm saying cherry picking one case to fight is missing the point. His real story is one of a failure in our mental health system. This focus on the prosecution is twisting the story into areas that are harder to change, and had a smaller impact on the end result.

This is not the story of a good guy being pursued by a bad prosecutor. This is a story of someone who did commit criminal acts, did get caught and prosecuted, and then did not have the personal capabilities to deal with the consequences. Yes, the story includes a bad legal system. But focusing on the prosecutor diminishes the actual problems in our legal system, diminishes the problems with our mental health system, and diminishes Mr. Swartz own responsibilities in his own story.

May I ask you what criminal acts he commited?

Apropos of your thoughts on copyright infringement, he at the very least committed trespass. Even if MIT had no interest in prosecution. That is undisputed.

> he at the very least committed trespass.

Which is typically a $100-500 fine, and classified as a misdemeanor.

Certainly. But the question was "May I ask you what criminal acts he committed?" which, in the context of this discussion, seems likely spurred by a belief that his offenses were purely civil in nature, or should not have been offenses at all.

I place no judgment. But misdemeanor, felony or otherwise, it's a correct and accurate answer.

If the system or process needs to change, why not change it directly? The prosecutor is irrelevant if the whole process is broken.

Overall this is a pretty good description of our adversarial system of justice, however it is important to remember prosecutors have special ethical obligations. Notwithstanding some creative and recent arguments by the Department of Justice that their prosecutors are not bound by state ethical rules (See e.g. The Thornburgh memo [1], but see 28 USC 530B [2]), most states have ethical rules which place special obligations upon prosecutors similar to ABA Model Rule 3.8 [3], which requires a prosecutor to, amongst other things, "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause" and "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense", as well as "except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused".

The comment to Rule 3.8 [4] makes clear a "prosecutor has the responsibility of a minister of justice and not simply that of an advocate".

[1] http://en.wikipedia.org/wiki/Thornburgh_Memo [2] http://www.law.cornell.edu/uscode/text/28/530B [3] http://www.americanbar.org/groups/professional_responsibilit... [4] http://www.americanbar.org/groups/professional_responsibilit...

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