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January 14, 2013

Notable new commentary about the Aaron Swartz's case and prosecutorial power

Via How Appealing, I just saw that Slate now has up this new essay by Emily Bazelon titled "When the Law Is Worse Than the Crime: Why was a prosecutor allowed to intimidate Aaron Swartz for so long?". The piece merits a full read; here is how it starts and ends:

I didn’t know Aaron Swartz, but I wish I’d followed the out-of-all-proportion charges the Department of Justice brought against him before his death.  Swartz, of course, is the Internet prodigy who took his own life over the weekend, a few days after prosecutors insisted, according to his lawyer, that he go to prison for allegedly committing computer fraud by downloading 4.8 million articles from the academic database JSTOR.

The causes of suicide are almost always complex, and Swartz suffered from depression. I’m glad that’s been a clear thread running through the coverage of his death.  But Swartz’s mental health history doesn’t change the fact that he was on the receiving end of blatant prosecutorial intimidation — an egregious overcharging of crimes by the U.S. attorney’s office in the name of setting an example.  If the prospect of prison and high legal fees contributed to Swartz’s decision to take his life, as his family and his girlfriend say, then that is a tragedy that should lead to some serious soul searching at the Justice Department.  Prosecutors wield enormous power over all of us.  This case is one terribly sad example of what can happen when they abuse it....

I’d like to tell you that the prosecutorial overreach that took place in Swartz’s case rarely happens.  But that’s not true.  There are many principled prosecutors who only bring charges they believe they can prove beyond a reasonable doubt.  But there are also some who bring any charge they can think of to induce a defendant who may be guilty of a minor crime to plead guilty to a major one.  These cases usually are hard to call attention to: They’re not about innocence, easy and pure.  They’re about the muddier concept of proportionality.  If any good at all can come from Swartz’s unspeakably sorrowful death, maybe it will be how this case makes prosecutors — and the rest of us — think about the space between guilt and innocence.

January 14, 2013 at 05:20 PM | Permalink

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I am curious to hear whether Mr. Otis thinks Swartz should have been charged.

The reason for my curiosity is that I recently read, at Legal Insurrection dot com, a statement by Mr. Otis, who agrees that David Gregory should not have been charged with any crime because, I quote, "In my judgment, the non-prosecution decision was correct. I always thought that, in exercising the awesome power a prosecutor wields, the first thing he needs to decide is whether he’s dealing with a criminal. Gregory did violate the statute, but no normal person would think of him as a criminal; his behavior was not bad faith or venal, or undertaken for some corrupt or bad motive."

Was there anything about Aaron Swartz such that, "a normal person would think of him as a criminal; his behavior was not bad faith or venal, or undertaken for some corrupt or bad motive." What about the prosecutors? Was there anything about the prosecutors such that, a normal person would think of their behavior as criminal; that their behavior was not bad faith or venal, or undertaken for some corrupt or bad motive?

Posted by: Jardinero1 | Jan 14, 2013 5:39:46 PM

Prof. B,

What do you think of Orin Kerr's commentary at the Volokh conspiracy where he basically comes down on the side that at least under the facts as understood this wasn't really a novel prosecution? And this from someone who in plenty of other cases has been extremely critical of computer crime prosecutions.

Much like the marihuana activists I see Swartz as someone who needed to be willing to take the fall if he actually believed that strongly in what he was doing. And from the facts as Kerr recounts them I don't see an insistence on prison time being at all out of line.

Posted by: Soronel Haetir | Jan 14, 2013 6:43:55 PM

Well Soronel i have no problem with him taking his fall for his crime. But my problem is where are all the state agents all the way up to whatever governor was retarded enough to sign a law that contridicts federal law.

Sorry the escuse that we can't get em all does't wash. These are not some unknown pusher or higher up on the street but known govt agents. I think even the fuckups who now run this country can read a state law registry and see who signed or voted for what and when!

Posted by: rodsmith | Jan 14, 2013 6:52:17 PM

It's not unusual, but as can be seen in the quote from Mr. Otis about charging David Gregory - charging is arbitrary. Only the man who swims upstream knows the strength of the current, and the prosecutor determines that current strength.

Posted by: beth | Jan 14, 2013 6:59:31 PM

When ever I see articles on prosecutorial power and the charges they can bring---I must always say, I completely identify. I was acquitted of all Federal charges by choosing to go to trial in 2011. These charges allowed 20 years of prison PER COUNT, and I was charged with 12 counts. On top of that I could have also faced fines, forfeiture and restitution. I am grateful that I was able to afford counsel...who BEGGED the prosecutor to see that I was NOT a criminal. The charges consisted of: buying a boat (4 counts), lending money to a relative, (5 counts), allowing my spouse to remove his name from a joint account (2 counts) and conspiracy (1) count. There was never ANY discussion from the prosecutor's office of dropping the charges against me. I had NO CHOICE but to go to trial. This has been a devastating event in my life, and though I was acquitted, I don't think I'll ever be able to get past how easy it is to accuse people of crimes in this country. (I got to read the Grand Jury testimony in my case, and I was absolutely appalled). Once the Federal Government starts down their road, their seems to be no stopping them. (except a jury...and that is super scary, and expensive)

Posted by: folly | Jan 14, 2013 7:18:17 PM

Jardinero1 --

I don't know enough about the case to have an opinion. Bazelon might be right, or Orin Kerr might be right; generally, I put more faith in Orin (who is a casual friend of mine). I would also note that what is "overcharging" versus "correct charging" is in the eye of the beholder. I don't think I ever ran into a defendant who believed anything OTHER than that he was overcharged.

I thought that David Gregory should not be put in a position where he would go to jail for largely the same reasons I thought the same thing about Scooter Libby. Although both violated a statute, neither is a criminal in any sense that term would be understood by a normal person, and neither acted to enrich himself, which is almost always the motive for non-assault crimes.

I might add that I was accused of taking Libby's side because he's a Republican. If Gregory is a Republican, I'd be astonished; his fawning interview with Obama would seem to indicate otherwise.

In making prosecution decisions, I did not and would not take account of a person's politics. I would take account of their character, however.

Posted by: Bill Otis | Jan 14, 2013 8:10:37 PM

This is a very sad story. For whatever it may be worth, although the US Attorney's Office obviously concluded that this wasn't something that it couldn't responsibly decline to pursue altogether, it's also not at all clear that it thought substantial jail time was necessary or even warranted. There are news reports that, according to Swartz's lawyers, the government was willing make a sentencing recommendation of six months in exchange for guilty pleas.

The point here isn't to diminish how sad this ending was, but just to note that the prosecutor's office, even if firmly convinced that some punishment was warranted, may well have been persuaded that a very short jail term was sufficient to make its point without piling on excessive or unwarranted punishment.

Posted by: guest | Jan 14, 2013 8:33:06 PM

guest --

As I've said to Jardinero1, I don't know enough about the facts of the case to have an opinion about whether it was overcharged.

Among the things I don't know is whether Swartz's position was that he was guilty of absolutely nothing. Even if so, the defendant's initial position is almost never his final position (or what the jury concludes).

If there was a good case that he was guilty of some felony offense, then it was he, and not the government, who has to account for the fact that he turned down the government's offer of a six month recommendation in exchange for a plea.

One thing I have learned over the years, and not just in the USAO, is that human beings are capable of all manner of self-justifying rationales, obstinency, and rose-colored glasses (especially about their own behavior). These things make for a good deal of tragedy, and my guess (although only a guess) is that they helped make for a tragedy here as well.

Posted by: Bill Otis | Jan 14, 2013 8:49:52 PM

Every false prosecution is really an opportunity to destroy the lives of the prosecutor and all supervising attorneys. One must hire a second lawyer, an expert in lawyer malpractice, to terrorize the defense lawyer, a traitor to the defendant. This traitor likely worked for the federal government, has friends in the prosecutor office, and owes his job to the prosecutor, not to the client. After cases they may get together and drink to the stupidity of the public. This defense traitor will do nothing to destroy or deter the prosecution, and must be subjected to legal terror, and even physical terror. Get a bat, and clear his desk, saying, you will break every bone in his body if he refuses to go after the prosecution and even the judge.

1) Total e-discovery on all work and personal computers of the prosecutors and of all supervisors. Do not show to the kids given all the child porn in them. Refer such to the FBI.

2) Refer every untoward utterance to the ethics office and to the Disciplinary Counsel of the state of license. If there are enough, submit one a week, to keep the prosecutor under continual investigation for years.

3) Start a campaign of vilification with the prosecutor's spouse, children, parents, church, friends. Start an ad campaign publishing embarrassing background information.

4) Try to organize a total boycott of the prosecutor and supervisors by all product and service providers.

5) Even though, there is absolute immunity, sue the prosecutor repeatedly, in "order to change an unfair law." Bust the budget of the office with defense costs. Shop for a judge with courage.

6) Support a direct action group that will apply 50 lashes and leave the prosecutor tied to a tree outside the court, to deter the pro-criminal feminist lawyer and its male running dogs.

Posted by: Supremacy Claus | Jan 14, 2013 10:23:28 PM

As I've said to Jardinero1, I don't know enough about the facts of the case to have an opinion about whether it was overcharged.

Among the things I don't know is whether Swartz's position was that he was guilty of absolutely nothing. Even if so, the defendant's initial position is almost never his final position (or what the jury concludes).

Bill-

Since you've quite generously answered a question from another commenter, I wonder if I may impose one more. According to the Wall Street Journal (http://online.wsj.com/article/SB10001424127887324581504578238692048200404.html) the government offered six to eight months in exchange for a guilty plea, but indicated it "might only seek seven years at trial." Though I generally disagree with what you comment here, you seem like a pretty stand-up guy, so I'm wondering: when you were with the USAO, was it normal to offer a 12x discrepancy between the sentence in a plea deal versus after trial? My non-lawyer view is that given that the courts are to impose a penalty "sufficient but not greater than necessary," it would seem that either the offer was grossly insufficient, or the post-conviction demand would be grossly above what's necessary. Obviously this might be required in some cases, like to get a key witness to testify against an organization, but that wouldn't seem to be relevant here.

For what it's worth, I actually think, given my limited view of the case, that a sentence in the range of the government's offer is a little higher than ideal but not ridiculous, but the seven years is clearly out of line. The massive discrepancy between the two numbers, however, I find highly disturbing.

Posted by: dsfan | Jan 14, 2013 11:30:55 PM

The question I would throw out is whether those people who apply the "discretionary" logic in this context would do so in the context of the 5A. As Lyle points out in his preview (see link below), the real basis for the complaint is the feeling from the conservatives legal community that state agencies are "bullying" landowners to get more from them during the permit process than they otherwise would be entitled to under law. But isn't "bullying" just "overcharging" by a different name?

http://www.scotusblog.com/2013/01/argument-preview-when-is-a-civic-task-a-taking/#more-157619

I find it ironic that conservatives support government discretion when it comes to locking other people up but get angry when the government uses its discretion to take their own property. I can't find the principle (though I can find the politics) behind giving the prosecutor discretion but not the environmental regulator.

Posted by: Daniel | Jan 15, 2013 12:34:41 AM

dsfan --

"[W]hen you were with the USAO, was it normal to offer a 12x discrepancy between the sentence in a plea deal versus after trial?"

I am poorly positioned to answer, since I was the head of appeals and only rarely participated in plea negotiations, which are at the front end of the system. From what little I do know, I don't know that I'd say it was "normal," but I couldn't swear it never happened, either.

My general view is that there is no such thing as "normal," and that each case is individual and has to be evaluated on its own merits. That seems particularly to be true here. It's a very unusual case. By far most federal prosecutions are about drugs, immigration and firearms. This has nothing to do with that.

"My non-lawyer view is that given that the courts are to impose a penalty "sufficient but not greater than necessary," it would seem that either the offer was grossly insufficient, or the post-conviction demand would be grossly above what's necessary."

A government recommendation is only that, which is why the government cannot promise a specific sentence. The judge alone imposes the sentence, and the statutory language you quote is a direction to the courts, not the executive branch.

I was not and am not a big fan of plea bargaining. I understand the economics of the system make it unavoidable, but it is not the mechanism designated by the Framers for the disposition of felony charges. Left to my own inclinations, I would charge what I thought the case merited on the facts, neither more nor less. The defendant could plead if he cared to, or go to trial. I never had a bit of a problem with the defendant's going to trial. That is his decision. On the other hand, if that's his choice, I didn't like his grousing when his rose-colored view of his behavior got exploded by the evidence, and he wound up just getting the judge angry by putting on some shake-and-jive defense that didn't survive 90 seconds of cross examination.

Posted by: Bill Otis | Jan 15, 2013 3:08:22 AM

I want fairness credit for this.

The feminist lawyer's over reaching prosecution was only a factor among many in the suicide. The most powerful factor was his depression, which caused a mental state that allowed the self injury. The second most likely factor could have been intoxication. Need the toxicology report. The third factor is likely to have been relationship stress with family and loved ones. His intentional act also broke all legal links of causation with other factors. I opposed the prosecution of that lady who posed as a kid and harassed a girl who committed suicide. I oppose scapegoating this feminist, productive male hater prosecutor.

On the other hand, in a claim against the feminist lawyer, she had multiple legal duties to the defendant. If it can show she deviated from professional standards of due care, the negligence would be per se, since the prosecution may have violated Rules of Conduct and of Evidence enumerated in statutes. Even if she has immunity, she should be sued to try to change the unfair case law and to get the legislature to reverse the Supreme Court self-dealt lawyer immunity. It is quite lawless, wrongful, and injurious to the legal profession, if torts is meant to deter careless conduct, and as a substitute for violence.

I urge the feminist male hater to resign, even though she is not the real cause of the suicide. She is an embarrassment to the office.

Posted by: Supremacy Claus | Jan 15, 2013 8:55:34 AM

The potential for a long sentence does not mean the feds would actually push for such a long sentence. The problem might be the laws itself -- I don't know -- but it surely looks to me like the guy violated the law. If the U.S. was trying to send a message against illegal hacking, which is far from totally benign, that isn't necessarily horrible.

And, I find it troubling that more than one account in effect implies that somehow the U.S. government is to blame, they "contributed" somehow to his suicide because they did too much to stop "downloading 4.8 million articles from the academic database" in a too harsh matter [which very well might be true -- it's a separate matter] that otherwise would require paying a fee & the fact he was able to do something that even Lessig opposed fairly easily doesn't change that for me.

His lawyer said the government demanded "prison time" -- not "decades" in jail. What "prison time" were they asking for to accept a plea deal? That sort of thing would be helpful for me to fully judge this. There are certain people caught in the criminal justice system who greatly deserve our sympathy. I'm unsure how much this guy (RIP) deserves, even if he was a great guy and promoted the good fight.

Posted by: Joe | Jan 15, 2013 10:22:29 AM

Why does PACER charge user fees?

Posted by: Bob | Jan 15, 2013 12:54:03 PM

Bill says,

If there was a good case that [Swartz] was guilty of some felony offense, then it was he, and not the government, who has to account for the fact that he turned down the government's offer of a six month recommendation in exchange for a plea.

This argument doesn't work even on its own terms. The government has a duty to ensure "that justice shall be done." A defendant doesn't. So if the government here was pursuing an unjust sentence, it violated its duty, and for that should be held to account; Swartz's supposed intransigence during plea negotiations (not to mention his supposed guilt) is just irrelevant.

But the terms of the argument themselves are also pretty shaky. This was a first offense. It wasn't violent. Swartz didn't seek to line his own pockets. He didn't cause any appreciable harm. (The alleged victim here, JSTOR, refused even to take any civil action.) And Swartz was, by almost all accounts, an extraordinary person who made remarkably valuable contributions to his community, his country, and the world. So why assume that he ought to do prison time? Why, indeed, assume that mere in rejecting an offer that required prison time, he was being unreasonable? These assumptions seem pretty unjustifiable. Cf. Bill's own views about Scooter Libby.

Posted by: Michael Drake | Jan 15, 2013 9:25:05 PM

Michael.

Because in my mind his violations of the law were flagrant. First JSTOR tried to stop him and he subverted their efforts. Then MIT tried to stop him and he subverted their attempts multiple times. Finally, when the police whet to arrest him, he fled. None of those actions are the actions of an innocent mind. He knew he was breaking the law and he did it willfully and wantonly. That has to count for something against him.

Second, words like "appreciable" are in the eye of the beholder. Harm was done. So again, that has to be counted against him as a matter of kind, even if people disagree on the degree of harm.

What I think if motivating a lot of commentary on the web is the sense that if they were in the prosecutors shoes the they would have done something differently. That's fair enough. But I don't find anything unreasonable in the plea offer. Sometimes both sides can be reasonable and there isn't any villain.

Posted by: Daniel | Jan 15, 2013 10:09:40 PM

Dan: You are a collaborator with the cult criminal oppressor destroying our nation.

Computer prodigy. Potential to generate $billions in added value to the economy in the future. No personal gain from liberating data paid for by the taxpayer, both the documents of PACER, and the articles generated by public funding in JSTOR, held hostage by left wing Commie low lifes in academia and in the court. It is PACER and JSTOR that are the real criminals, the thieving criminals.

Vile, feminist, Inquisitorial little power mad feminist female dog, hating the productive male. A disgusting cult criminal piece of subhuman filth, destroying $millions in value every year she is kept alive, empowered by the greatest criminal syndicate in human history. It can only be stopped by mass arrests, an hour's fair trial, and summary executions.

Not much of a comparison. She is strongly urged to resign, and then to kill herself, to do the right thing.

Posted by: Supremacy Claus | Jan 15, 2013 10:23:01 PM

http://www.talkleft.com/story/2013/1/15/152428/051

This provides more interesting detail including this tidbit:

"Two of Aaron Swartz's attorneys, one current and one former, say that the Government wanted Aaron Swartz to plead guilty to all 13 counts in the Superseding Indictment, and it would recommend a sentence of six months in confinement."

He didn't want the deal. He didn't want jail time. Further on, the prosecutors was said to perhaps be satisfied with a “slightly lesser” amount of time. If true, he wasn't really at risk at some long time in jail at all. He was playing hardball, probably on principle, but also couldn't handle the stress particularly given (per some reports) past mental health issues.

It all looks more complicated than some make it out to be.

Posted by: Joe | Jan 15, 2013 10:42:34 PM

Here is the site at the White House, petitioning for the removal of the feminist pig.

https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck

The minimum number of signatures has been rapidly exceeded.

Posted by: Supremacy Claus | Jan 15, 2013 10:45:43 PM

The Republicans in the House want to investigate the feminist pig.

http://www.huffingtonpost.com/2013/01/15/darrell-issa-aaron-swartz-_n_2481450.html

They will make her resign within weeks, if not sooner.

Posted by: Supremacy Claus | Jan 15, 2013 10:52:53 PM

The DOJ press release:

http://www.justice.gov/usao/ma/meetattorney.html

Posted by: Supremacy Claus | Jan 15, 2013 10:57:19 PM

Michael Drake --

" The government has a duty to ensure 'that justice shall be done. A defendant doesn't."

Finally, after all these years of high-minded preaching, we have a succinct statement of why you're happy to tolerate every sneaky, shake-and-jive machination by the defense. The defense side isn't there to see that justice is done; it's there to beat the rap! Thank you! But please, no more preaching.

BTW, you have no basis except knee-jerk ideology for insisting the sentence initially proposed by the government was excessive until you have fully and honestly set forth all the evidence the government possessed. Of course you pass right on by that in favor of mushy characterizations over facts.

"So if the government here was pursuing an unjust sentence, it violated its duty..."

Kind of a big "if" there.

Here is what adults know: Negotiation is just that. You wanted the SCOTUS to recognize the centrality of plea negotiations in Lafler, and you won. Now it's time to understand what "negotiation" means. One of the main things it means is that, in order to move the criminal off his opening postion (generally something like, "You fascist thugs made the whole thing up and I'll plead to zip"), the government can hardly START with its FINAL position, any more than any good faith party to a negotiation can do that. It is precisely to reach a just sentence AT THE END OF THE BARGAINING PROCESS that the government starts high.

I mean, you don't understand this? How long have you been practicing criminal law?

What you actually want is for the government to START with what it views as a just sentence so that, after the give-and-take, it winds up getting stuck with a windfall for the criminal. Far out! If the prosecutor were a child, you could pull that off. Unfortunately for the defense, there is no language in the Constitution requiring the prosecutor to be a child.

"Swartz's supposed intransigence during plea negotiations (not to mention his supposed guilt) is just irrelevant."

The idea that guilt is irrelevant to the outcome of a case is vintage defense bar thinking. This is why defendant perjury is so, well,cool.

As noted, in plea negotiation, as in any negotiation, the attitude of each side counts. You don't get justice when one side is playing hardball and the other is playing Chinese checkers.

Of course the defendant has a perfect out if he feels the government is playing dirty. Tell it to go to a warm place and you'll see it in court.

If you don't like the way the government negotiates, the thing to do is not get on some Intenet site and whine. The thing to do is call their bluff and beat their backside in front of a jury.

Posted by: Bill Otis | Jan 16, 2013 12:36:37 AM

Bill's scenario would be proper except for one thing, the defense lawyer has dual loyalties. He once worked for the prosecution, and still has friends there. He owes his entire living to the prosecution, and not to the client. If he goes all out, fully deters the prosecution, he loses his living.

I believe there is a duty of professional standards to do total e-discovery on the computers of the prosecutors, their supervisors, all the way up the chain of the DOJ. We want to rule out an improper motive, common fallacies of logic, and bias. Publish it to the internet. After the first adverse ruling, repeat with the judge, the biggest threat to the interest of the client. Appeal any refusal. Use the data to disqualify both. Generate ruinous costs to their thin budgets, as they are doing to the client. Call for a personal boycott of the Inquisitorial oppressors.

I have never heard of any defense attorney meeting his duty of zealous representation so fully.

Posted by: Supremacy Claus | Jan 16, 2013 6:21:58 AM

"The thing to do is call their bluff and beat their backside in front of a jury."

Fair enough except for one thing. The swine on the bench gets his check from what side? The government, so the rulings overwhelmingly favor the government, and the proceeding is totally rigged in the favor of the wholly owned subsidiary of the criminal cult enterprise, the government. That check justifies a demand for recusal of the judge after each adverse ruling, for being in the pay of the other side.

The remedy is a flat fee paid to the judge, split evenly between the 2 sides. The judge may make more money by moving the trial more quickly, to move on to the next flat fee.

Posted by: Supremacy Claus | Jan 16, 2013 6:29:46 AM

sounds like mr. claus is off his meds again

Posted by: Erika | Jan 16, 2013 10:07:06 AM

"The defense side isn't there to see that justice is done; it's there to beat the rap! Thank you! But please, no more preaching."

Well, yes, that is the system is place. The system as a whole is there to see that justice is done. Brings to mind the movie "The Fugitive." The marshal's job there was to bring in the fugitive. Doesn't matter if the fugitive was actually innocent. Or prosecutors. Bad laws have to be prosecuted too. Prosecutors can't "see that justice is done" by simply ignoring laws they find unjust. The system as a whole is there to provide a form of justice. Defense attorneys too. If it is a reasonable thing to protect the client, yes, making sympathetic witnesses very upset is allowed, even children. It is a constitutional right even, as Scalia noted more than once. Prosecutors and judges are there to keep them honest, and vice versa.

Posted by: Joe | Jan 16, 2013 11:12:56 AM

Daniel, I don't think we disagree about much. Prison might have been reasonable, or it might not have; I just didn't think its reasonableness could be assumed. No denying that the "appreciability" of the harm involved is subjective.

Bill, I don't discern in your comment any response to my actual arguments. As for the abundant non sequiturs and straw men that you nonetheless managed to pack into your remarks, I'll let them speak for themselves.

Posted by: Michael Drake | Jan 16, 2013 11:35:57 AM

loved this!

"http://www.talkleft.com/story/2013/1/15/152428/051

This provides more interesting detail including this tidbit:

"Two of Aaron Swartz's attorneys, one current and one former, say that the Government wanted Aaron Swartz to plead guilty to all 13 counts in the Superseding Indictment, and it would recommend a sentence of six months in confinement."

He didn't want the deal. He didn't want jail time. Further on, the prosecutors was said to perhaps be satisfied with a “slightly lesser” amount of time. If true, he wasn't really at risk at some long time in jail at all. He was playing hardball, probably on principle, but also couldn't handle the stress particularly given (per some reports) past mental health issues.

It all looks more complicated than some make it out to be."

Who knows maybe the govt knows the same thing any normal american does. In todays' anal society any felony conviction let along 13 basicaly means your FUCKED!

As far as a life is concerned!

So yep he told them to kiss off!

Posted by: rodsmith | Jan 16, 2013 11:57:24 AM

Bill Otis: "The idea that guilt is irrelevant to the outcome of a case is vintage defense bar thinking. This is why defendant perjury is so, well, cool."

You are half right as this is a knife that cuts both ways, as far too many guilty verdicts convicting factually innocent persons have shown. While we hope and pray that the defendant's factual guilt aligns with the verdict in a case, factual guilt is, in fact, quite irrelevant to a case's outcome at trial - what is relevant, and what is solely relevant, is the jury's perception (in a jury trial) of the evidence and whether that jury collectively believes the evidence a perceived, which may or may not comport with the true facts, supports a guilty verdict "beyond a reasonable doubt," whatever that means.

Beyond this, Bill is correct that negotiations are just that. It is a common myth, in fact, that the government is required to plea bargain with a defendant. The government is not. In truth, the government is just as free to take its case to the jury as is the defendant (thought in most if not all jurisdictions, a defendant can open plea a case).

Posted by: C60 | Jan 16, 2013 12:12:27 PM

Michael Drake --

As ever, your concessions come in a cute package. But your inablilty/refusal to refute my analysis of what bargaining actually (and properly) entails is, I'm afraid, more revealing than you intend.

Still, I thank you for stating what I've been saying for so long. To quote you, "The government has a duty to ensure 'that justice shall be done.' A defendant doesn't."

This frank acknowledgement that the defense side is there strictly to advance its own interests (to wit, an acquittal by whatever shake-and-jive strategy can be concocted), justice be damned, is as invaluable as it has been long in coming.

Posted by: Bill Otis | Jan 16, 2013 1:39:13 PM

C60 --

"You are half right as this is a knife that cuts both ways, as far too many guilty verdicts convicting factually innocent persons have shown."

A single erroneous conviction is too many, as is a single erroneous acquittal. But adults understand that no system is infallible, not now and not ever. The only sensible question is whether the present system embraces a criminal procedure that minimizes the likelihood of convicting the innocent while still making it routinely possible to convict the quitly. The extremely low percentage of innocent persons convicted; the substantial increase in procedural protections for the defense over the last 50 years; and the vastly lower crime rate over the last 25 together persuade me that we have stuck about the right balance in the rules of criminal procedure. This is why I am willing to take on the defense screeching that goes on on this blog.

"...factual guilt is, in fact, quite irrelevant to a case's outcome at trial."

With respect, that is an overstatement by a considerable margin. Factual guilt aligns with a determination of legal quilt in the huge majority of cases, as I suspect you know. Yes, it's a matter of jury perception (every human conclusion is a matter of perception), but the idea that there is no, or only a random, connection between perception and reality is wildly incorrect. Indeed, it comes close to saying that legal outcomes are random if not solipsistic.

No realistic observer thinks that. For by far the most part, factually guilty defendants get convicted and factually innocent ones don't. That is not a random outcome.

Posted by: Bill Otis | Jan 16, 2013 1:58:51 PM

Bill, again, I'm still not seeing any actual response to my argument. But here's a pro tip: When someone points out that your remarks are nothing but a nonresponsive string of caricatures and confusions, that's not normally thought of as a "concession."

Last word's yours if you want it.

Posted by: Michael Drake | Jan 16, 2013 4:08:50 PM

Michael Drake --

"Bill, again, I'm still not seeing any actual response to my argument."

That's because you don't want to.

"Last word's yours if you want it."

I will only repeat my thanks to you for conceding (indeed, it seemed to be more proclaiming) that prosecutors have a portfolio to do justice, while defense lawyers neither have nor want any such thing.

Posted by: Bill Otis | Jan 16, 2013 5:31:36 PM

From all of the news articles I have read it is difficult to discern a crime other than his breaking into a closet, or invading a closet, and setting up his listening device. The piled a lot of charges on him. The prosecutor needs to be fired and go out into private practice and do divorces where she will do less damage.

Posted by: OldFart | Jan 19, 2013 8:16:58 PM

Erika's remark, that of a feminist lawyer, is quite ironic.

The Supremacy has no psychiatric diagnosis unless empiricism and utilitarianism are considered to be pathological in this lawyer underwater sewer. I can assure you they are not on the land or air above. The lawyer swimming in the sewer of supernatural central legal doctrines does not even have any awareness of the realms above the sewer. All memories of such have been erased by the indoctrination in law school. We are in the territory of the Twilight Zone episode, "The Eye of the Beholder" (doctors make a last attempt to repair the hideous deformed face of a female patient. The bandages are removed. The doctors and nurses gasp and groan in disappointment. We pan to the face, and it is that of a beauty queen here. We pan to those of the doctors and nurses and they have hideous pig faces. Everything is upside down in the lawyer planet.)

Erika can make her remarks more useful by telling us what she is wearing at the time she is making them.

Posted by: Supremacy Claus | Jan 20, 2013 11:03:57 AM

I will be referring to the above Twiling zone episode, Eye of the Beholder, to explain lawyer anomalous thinking and action.

Some Supremacy abbreviations.

CCE = Criminal Cult Enterprise

EOB = Eye of the Beholder

SDI = self dealt immunity

DAG = Direct Action Group, needed to apply 50 lashes to judges and lawyer, leave them tied to a tree outside the court. To deter.

TD = To deter (a lawyer euphemism for the destruction of a productive entity by ruinous prosecution or litigation)

SCLD = Supernatural core legal doctrine, such as mind reading, future forecasting of rare accidents, the setting of standards of conduct by a fictional character, a thinly disguised avatar of Jesus, in violation of the Establishment Clause.

RS = rent seeking theory, a synonym for armed robbery. Your taxes will be transferred to a privileged group by the government, and you are getting nothing in return. If you refuse to pay your taxes for that purpose, a man with a gun will show up and help you to pay them.

PS = Profit seeking, the opposite of RS. Both parties get something of value to them. Government building of a much used road? PS.

Posted by: Supremacy Claus | Jan 20, 2013 1:17:45 PM

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