January 12, 2013

"Prosecutor as bully."

Lawrence Lessig on the suicide of Aaron Swartz (which we've already been talking about here). Lessig was Swartz's friend and — for a time — his lawyer:
From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Aaron had literally done nothing in his life “to make money.” He was fortunate Reddit turned out as it did, but from his work building the RSS standard, to his work architecting Creative Commons, to his work liberating public records, to his work building a free public library, to his work supporting Change Congress/FixCongressFirst/Rootstrikers, and then Demand Progress, Aaron was always and only working for (at least his conception of) the public good....
Swartz faced a million-dollar trial, and he was out of money, "yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge."
Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: Shame.
AND: From the NYT obit:
In 2008, he took on Pacer — or Public Access to Court Electronic Records, the repository for federal judicial documents. The database charges 10 cents a page for documents; activists like Carl Malamud, the founder of public.resource.org, have long argued that such documents should be free since they are produced at public expense....

Mr. Swartz recalled, “I had this vision of the feds crashing down the door, taking everything away.”...
He was scared, apparently, but he also joked and flaunted about his misdeeds:
 “Attention attractive people: Are you looking for someone respectable enough that they’ve been personally vetted by The New York Times, but has enough of a bad-boy streak that the vetting was because they ‘liberated’ millions of dollars of government documents? If so, look no further than page A14 of today’s New York Times.”...
The government chose not to prosecute that time. But Swartz moved on to the JSTOR matter, and United States attorney Carmen M. Ortiz said: “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”

The obit links to Swartz's own blog post describing his depression (and other ills). That post is from 2007, before either the Pacer or the JSTOR incidents.

68 comments:

chrisnavin.com said...

If true, this is a shame, and shows our Federal prosecutors are a little touchy and not adapting to the people, nor technology well.

Throughout my lifetime there's been a definite shift away from the private sector towards the public. There have been more people moving into D.C., and more people paying attention to politics as if has really changed all that much. Maybe an adversarial relationship is forming.

It's as if we're all looking for the image of our greatness to be reflected back upon us.

Or it's just a case about Aaron Swartz.

bagoh20 said...

What is this thing you speak of, this "shame"?

bagoh20 said...

Regardless of the facts of this case, opinion is often led astray with the argument that someone is doing wrong because they may be pursuing money, and are not if they are not after it. That has no effect on the victims. If I steal your wallet and throw it down a well, that does not make it any less a theft. In fact, it's worse, because now I can't even make you whole by returning it.

Titus said...

Everything important happens in the Northeast Corridor.

chrisnavin.com said...

There's a utopianism in a lot of such folks, but it can do a lot of good. There can be an anarchic spirit as well, aiming for subversion as with Julian Assange.

Hackers tend to be young men, doing it for the thrill, or because it's there, but there are also Chinese state-sponsored hackers, and Russian mobsters, and well...human nature.

There's a whole new generation of geeks and engineers who are building the framework for the new technology, and there are all the old laws, media, establishment and interests adapting

Nonapod said...

Very sad. I'm guessing he saw himself as a heroic character like Jean Valjean.

edutcher said...

Sorry, it belonged to MIT and he took it. He knew what he was doing.

Don't do the crime if you can't do the time.

AllenS said...

What a lot of people don't know, is that Swartz once drew a picture of a gun with a 30 round magazine when he was in grade school.

Ann Althouse said...

"Don't do the crime if you can't do the time."

What do you think would be an appropriate sentence. The prosecutor was trying to get him put away for something like 35 years (or, I read one place, 50 years).

Ann Althouse said...

"Very sad. I'm guessing he saw himself as a heroic character like Jean Valjean."

The fact that he "had literally done nothing in his life 'to make money'" and that he "was always and only working for (at least his conception of) the public good" shows what is, in some ways, a big problem.

Mitch H. said...

On the one hand, that sounds like crazy prosectorial overreach, but on the other hand there is nobody as rabidly greedy as the idealist with no interest in money, and nobody as selfish as the man who only has the public's interest at heart. Displacement is a hell of a drug. And it sounds like he was having a bad time going cold turkey.

Lessig never struck me as a man familiar with the sensation of shame, but it is a good thing if he is learning in his middle age yet.

m stone said...

Swartz was co-founder of Reddit, now worth $145 million

A nice way to jump off and "work for the public good."

Rick Caird said...

We need to hold our prosecutors to a much higher standard. We have, for example, ObamaCare because the Federal prosecutors in Alaska cheated changing the results of an election. They really suffered few repercussions.

In this case, the prosecutor's performance needs to be thoroughly reviews and if it found to be not in the interests of justice, the prosecutor should be fired, disbarred, and suffer further penalty himself. The power of a prosecutor and his access to funds that far exceeds the access of the average defendant, requires fair and honorable prosecutors. We need to severely penalize such prosecution failures.

We also, as he David Gregory sage shows, need to have one law for everyone.

m stone said...

I don't excuse the government prosecutor's zeal, for that matter.

Maybe "rabid" zeal is the better phrase.

Michael K said...

The prosecutors of Senator Stevens were not dismissed although one of them committed suicide during the investigation. They were Clinton holdovers because Bush never cleaned out the DoJ after he was elected. Partly that was the result of the Democrats' successful obstruction of his administration in 2001.

Most of the Federal Prosecutors in the Bush years were holdovers from the Clinton administration due to Congress’ unwillingness to confirm Bush’s nominees. Plus Sen. Steven’s indictment was repeatedly brought up and mentioned as if it somehow damned Gov. Palin by association.


This caused Bush all sorts of trouble thanks to a couple of Republican turncoats who kept the Senate in Democrat hands. When Gonzales belatedly tried to fire Clinton federal attorneys, all Hell broke loose. Clinton, of course, had fired all US attorneys when he took office.

Levi Starks said...
This comment has been removed by the author.
Levi Starks said...


Was anyone killed?
To me this case, and the proposed sentence has less to do with the fact that an ox was gored, than with who owned the ox.

edutcher said...

Ann Althouse said...

Don't do the crime if you can't do the time.

What do you think would be an appropriate sentence. The prosecutor was trying to get him put away for something like 35 years (or, I read one place, 50 years).


It is theft, after all; schools make money selling copies of articles to students doing research papers (I spent long hours trying to find the ones that were free).

What would be the value of the articles he stole over their useful lives?

Would it add up to grand theft? Petty theft? Put a value on it and add in some deterrent effect to let hackers know this isn't fun and games (like the moron that hacked my email this week).

Would 10 years be sufficient? 20? Again, the difference between this guy and David Gregory is context; both broke the law, but Gregory is castigated (rightly) for getting off because he's in the media and has connections.

Technically, Swartz' crime is a bit more dangerous to society

SteveR said...

I suppose that you can't fight a law unless you break it first.

Balfegor said...

that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge.

This is the part I find most disturbing about this. Why couldn't he reach out to raise money for a defense? If the prosecutors interfered in some way to prevent him from obtaining funds for a defense, that sounds like serious misconduct. And what kind of judge would try and prevent someone from seeking donations to defend himself in a criminal trial?

cubanbob said...

What do you think would be an appropriate sentence. The prosecutor was trying to get him put away for something like 35 years (or, I read one place, 50 years).

360 days would enough. It wasn't that bad a crime. Now how about prosecuting real criminals like Eric Holder or just about any senior Obama Administration senior official not to mention former members of Congress like Frank and Dodd.

Richard Dolan said...

Most federal judges impose sentences in the middle of the applicable guidelines range. The guidelines range turns on the magnitude of the victim's loss and other factors. The putative victims here (MIT and JSTOR) were both asking the gov't to drop the case. That factor could easily have resulted in a downward departure -- judges have broad discretion, but generally must explain why they choose to depart from guideline ranges.

No way that this fellow was "facing" anything like 35 or 50 years. Nor would a reasonable fee to try this case be $1 million.

I can understand why a prosecutor would press the case, and seek a felony plea. This fellow set himself up as the Robin Hood of the digital world, and had already gotten one pass for a prior episode. When you liberate other people's stuff, it's only in the movies that it all ends without consequence. But it's hardly the crime of the century.

Very, very bizarre story.

Michael said...

Balfegor. Standard procedure. Federal prosecutors have the assets of the accused seized thus separating the accused from a chance to hore top flight counsel. Thus impoverished they are meant to launch their defense with the aid of second rate lawyers or those without competence in the specialty at hand. See Conrad Black. Etc.

Maguro said...

Well, it's a shame that this didn't get plea-bargained down, it does seem like the sort of crime that prosecutors shouldn't spend an inordinate amount of time pursuing. That said, a crime was committed and it takes two sides to make a deal, so how flexible were Swartz and his defense team? Were they negotiating reasonably and in good faith? Or were they drawing the thing out, hoping to get more publicity for their "free information" cause?

While it's certainly possible that the prosecution is 100% at fault here, I'm not necessarily willing to take Larry Lessig's story at face value.

Basta! said...

Edutcher, at the university I attend the university pays the institutional rate fee to JSTOR, and then anyone with a university ID number can access and download any article on there at no additional charge. So the school pays, not makes money on the deal.

But maybe each university is different?

edutcher said...

I was going for a Master's Certificate in E-business a few years ago and Haavahd Business School had some articles on the subject of one of my papers. You could see the abstract, but to read the full article or download it, it was going to cost you - not an arm and a leg, granted, but money is money.

Another point that hasn't been raised is that this is that whole 60s mindset that Lefties had a right to break what they felt were "unjust laws" and, if (or when) caught, a slap on the wrist was almost expected - Ayers and Dohrn are the most egregious examples.

Balfegor said...

Re: Maguro:

Well, it's a shame that this didn't get plea-bargained down, it does seem like the sort of crime that prosecutors shouldn't spend an inordinate amount of time pursuing. That said, a crime was committed and it takes two sides to make a deal, so how flexible were Swartz and his defense team?

Not really, it sounds like. Lessig writes:

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April

There are people who don't want to knuckle under and plea guilty, and that's their right. In our system, somewhat unusually, prosecutors have a lot of discretion to adjust the recommended sentence to encourage people to surrender (in many other countries, plea bargaining would be totally unacceptable, even viewed as corrupt). But what that means is that the sentence for someone who chooses to fight for his liberty may strike an impartial observer as grossly disproportionate -- they're set that way pour encourager les autres.

Balfegor said...

Sorry, "not very" I meant. Not very flexible.

cubanbob said...

Swartz didn't kill anyone or threaten to kill anyone or threaten anyone with bodily harm. Nor did he steal a huge sum of money or cause anyone serious economic harm. Yet the government threaten him with a punishment that is normally reserved for major crimes for what is at most a jumped up misdemeanor. The real crime and the real criminals are the government and the prosecutor.

Ann Althouse said...

"Again, the difference between this guy and David Gregory is context; both broke the law, but Gregory is castigated (rightly) for getting off because he's in the media and has connections."

Another difference is that Swarz wasn't prosecuted for the Pacer offense, and Gregory's offense was his first.

Mary Beth said...

It is theft, after all; schools make money selling copies of articles to students doing research papers (I spent long hours trying to find the ones that were free).

What would be the value of the articles he stole over their useful lives?


I read that MIT and JSTOR both asked the DoJ to drop the charges and they refused. If the papers were that valuable to them, why would they not want to see this continue?

Paddy O said...

"schools make money selling copies of articles to students doing research papers"

They do?

I've researched hundreds and hundreds of articles and have gotten free full-text versions of them without paying a dime, all using my school's access.

If students are buying journal articles these days they're getting scammed. Almost every journal article I need from the last 20 years or so is now full text pdf.

O Ritmo Segundo said...

Michael's typo above is amusing:

"Federal prosecutors have the assets of the accused seized thus separating the accused from a chance to hore (sic) top flight counsel."

Michael, I do believe you're missing a "w" in there somewhere.

edutcher said...

Paddy O said...

schools make money selling copies of articles to students doing research papers

They do?

I've researched hundreds and hundreds of articles and have gotten free full-text versions of them without paying a dime, all using my school's access.


Granted, it may be dependent on the school and which particular branch. I know the place where The Blonde got her degree (can I say that?) had a similar set-up to yours, but that was the nursing school. At the business school, you were on your own.

All I know is I saw plenty of examples. That said, like you, I always went for the free stuff.

Eric said...

I don't excuse the government prosecutor's zeal, for that matter.

There are so many laws that are so broadly written prosecutors always have the option of burying you under an avalanche of 3-5 year offenses to end up with a potential 500 year sentence. You have to take the plea, guilty or not.

The more corrupt the state, the more laws. -- Tacitus

Moose said...

I puzzled as to why this was so significant to him that he had to kill himself.

I'd suggest that he had some other things going on - and that while the prosecution was overzealous he had little danger of actually going to prison.

Eric said...

...and that while the prosecution was overzealous he had little danger of actually going to prison.

I think his chances of ending up in prison were pretty good, actually, but even if that's not the case he may have believed it to be true.

Jerome said...

"And what kind of judge would try and prevent someone from seeking donations to defend himself in a criminal trial?"

Maybe a judge who felt that any defense donations the accused might receive should be counted as "assets" in setting his bail? Ring a bell? Or have we already forgotten poor George Zimmerman?

Robert Cook said...

"Federal prosecutors have the assets of the accused seized thus separating the accused from a chance to hore top flight counsel."

I don't know if this is true in all cases, or only in cases where the defendant's assets are assumed (or claimed) to be derived from his criminal activity, (e.g., drug crimes).

These are the asset forfeiture laws by which our law enforcement agencies enrich their own budgets by stealing the assets from persons who haven't even yet been convicted of the crimes of which they've been accused.

This is a scandalous and disgraceful illustration of the long-germinating fascism in our government and its organs of justice (sic) and law enforcement.

Robert Cook said...

Oh, and to call prosecutors "bullies" is almost a redundancy.

purplepenquin said...

If the DoJ wanted names/info on other hackers and he wasn't playing ball, then the prosecutor's piling-on of the charges makes perfect sense.

Fritz said...

See what Gregory dodged?

wwww said...

If it is true, that he was given guest access by MIT to download articles, then the case looks ridiculous.

The Genius Savant said...

Thinking PACER documents should be free, especially for non-parties to the relevant case(s), is idiotic. Especially when we've had year after year of the Chief Justice bemoaning funding levels for the federal judiciary.

Nonapod said...

While I don't agree with what he did I certainly think 35 or 50 years as punishment is draconian in the extreme. I also believe that copyright and patent laws need some serious reforms.

David R. Graham said...

“I’m right so I’m right to nuke you."

The nuke part of that is irrelevant. The relevant part is the "I'm right" - meaning, "You're wrong."

That separation of one from another is the tragedy, The Fall.

Eric said...

This is a scandalous and disgraceful illustration of the long-germinating fascism in our government and its organs of justice (sic) and law enforcement.

I don't think it's the best example to come along lately (Zimmerman seems more apropos), but I have to say the exercise of state power certainly does seem to be more capricious than it was, say, twenty years ago.

chickelit said...

Nonapod said...

I also believe that copyright and patent laws need some serious reforms.

Most people object to the length of patent term yet it was tweaked in 1995 to harmonize with the rest of the world: 20 years from the filing date. It's highly unlikely this will change anytime soon.

Titus said...

This is a Northeast elite university issue.

The rest of you flyover states don't understand.

Please, we would prefer you not give us your piece of shit state view.

Now head to the nearest Walmart and leave us alone.


We hate you more than you hate us-if you can believe it.

Titus said...

I live in fab Cambridge and while I am not a hacker I am definitely a Cambridge jacker. I have jacked off more foreign hogs in this city than probably any other citizen.

So take that dumb fuck red state southern hicks.

Beldar said...

Our host asked, in comments above, "What do you think would be an appropriate sentence[?] The prosecutor was trying to get him put away for something like 35 years (or, I read one place, 50 years)."

It is not merely routine, but universal, for prosecutors to charge aggressively. Everyone with even a passing familiarity with the criminal justice system, state or federal, prosecution and defense, understands that is done for bargaining purposes. The system can only actually stagger on, day by day, because 90%+ of all charges end up being resolved short of a full-blown trial, most often through plea agreements.

Lessig wrote, "[T]he question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a 'felon.' For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April ...."

If Lessig's got his facts right, this strongly suggests that Swartz wasn't looking at 50 years or 35 years, and perhaps not at any prison time whatsoever — if, but only if, he acknowledged the seriousness of his crimes through a guilty plea. Lessig's assertions strongly imply that Swartz was willing to plead guilty to something less than a felony (again, presumably without any jail time).

Every single argument about Swartz' history and his crimes that has been advanced by Lessig or others in this discussion could also have been argued by his defense counsel at sentencing, if they got that far. But those same arguments were surely also made by his defense counsel in plea negotiations, and if he'd already gotten an offer of minimal or no jail time, he was way ahead of the game in my opinion.

Eric said...

If only we could bully that last 10% into accepting a deal we wouldn't need criminal courts at all.

ambienisevil said...

Alex Stamos, to have been an "expert witness" on Aaron's side:

http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/

pm317 said...

May be he didn't suck up to Obama enough, you know like all other Obots, ..

Zach said...

The University of JSTOR are not the victims in this case. The journals, who sell access to articles for large amounts of money, are. Both MIT and JSTOR pay a lot of money for that access, and arguably would benefit if the subscription model broke down.

Right now, there's a lot of controversy about whether academic journal articles ought to be available for free, or whether the subscription model should continue. Many people (including me) think they charge a lot of money in return for very few tangible contributions. The subscription model means that a lot of money go to the publishers and away from researchers (ultimately, from the taxpayers -- it's not like you're going to pay a $35.00 download fee for one article out of your pocket). Swartz, obviously, knew this -- that's why he was stealing the articles in the first place.

The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar.

Larry Lessig is either an idiot or a liar. Journal publishing is an extremely profitable business, and depends utterly on being able to sell access to articles. That's why they're opposing the open access movement, and that's why the open access movement is opposing them. The point of the theft was not to make several million dollars, but to destroy the ability of others to make several million dollars.

Swartz may not have felt like a felon, but he was committing a felony. Or maybe he wasn't, if he could plea bargain well enough. But to claim "no harm, no foul" is pretty misleading -- the harm was the point.

Zach said...

There's an interesting example of doublethink in Cory Doctorow's summary of the case, excerpted in the previous post. On the one hand, Swartz had done the exact same thing before:

At one point, he singlehandedly liberated 20 percent of US law. PACER, the system that gives Americans access to their own (public domain) case-law, charged a fee for each such access....

On the other hand, this case was harmless -- more of a prank, really:

Aaron snuck into MIT and planted a laptop in a utility closet, used it to download a lot of journal articles (many in the public domain), and then snuck in and retrieved it. This sort of thing is pretty par for the course around MIT, and though Aaron wasn't an MIT student, he was a fixture in the Cambridge hacker scene, and associated with Harvard, and generally part of that gang, and Aaron hadn't done anything with the articles (yet), so it seemed likely that it would just fizzle out.

Lyle said...

People saying the government pushed him to commit suicide are the ones who should be ashamed.

Eric said...

Right now, there's a lot of controversy about whether academic journal articles ought to be available for free, or whether the subscription model should continue. Many people (including me) think they charge a lot of money in return for very few tangible contributions

Don't the journals coordinate (and pay) for the peer review?

Zach said...

Don't the journals coordinate (and pay) for the peer review?

Peer review is uncompensated. You're expected to do it as a professional courtesy (after all, every paper you submit will need at least two reviewers, and if everybody begs off, the quality of reviews will be even worse than they are already).

The journal lines up the reviewers and arbitrates any disputes. They also provide some line editing -- page proofs, typesetting, etc. Mostly, they provide the author with an audience, which should not be discounted -- a paper is supposed to teach people something, which means that interested people need to be able to see it.

Journal publishing is very profitable, and it uses a lot of uncompensated labor -- neither the authors nor the reviewers get paid. There's a very good argument that the journals are making out like bandits in return for not much value added. But then again, purely open access journals are still trying to get off the ground, and none of them can compete with the truly prestigious names like Nature or Science. So at least at this point in history, it's not yet possible to dispense with the middle man entirely.

Zach said...

Another factor to consider is that for the truly big journals, the difference between an institutional subscription and an open access model isn't visible to most researchers. Your library will never give up its subscription to Nature or Physical Review, so from your perspective it's already free.

The real front lines of the fight are in the specialty journals. The publishers would like to bundle large numbers of small journals together with a few big names and charge a high price for everything. The institutions would prefer to concentrate on the big names. Journal prices aren't really visible to researchers -- they just want access to whatever article they're looking for at the moment. On the supply side, researchers need their articles to have visibility and credibility.

Beldar said...

In comments above, Eric (1/13/13 1:28 AM) said, "If only we could bully that last 10% into accepting a deal we wouldn't need criminal courts at all."

I get the humor. I don't agree with the premise that underlies it, though.

The system depends upon constantly shifting and individualized evaluations of responsibility and risk. The prosecutor and the defense attorney have access to most, but not all, of the same information on which to make those evaluations.

To the extent that prosecutors misperceive the strength of their cases, and accordingly are too aggressive in charging or too resisting to pleading down, then yes, some percentage of defendants — at the margin — will capitulate and take a worse deal than they "ought" to have gotten in a perfect world. But other defendants with better counsel won't make that mistake; they'll resist, and go to trial, at which point the decisions of the judge and jury end up replacing the predictive guesses made by both sides. And at that point they — and more importantly (to the system), all the other prosecutors, defense lawyers, and judges who are watching — has a new discrete and meaningful data point to use in the future in terms of evaluating their respective risks and benefits during plea negotiations.

It's a dynamic system. You can mock its coercive tendencies, but they are inherent in any such system, and the real question is how tightly various variables should be screwed down.

There will always be a "last 10%" who continue testing the boundaries of the system. They're essential for the system to keep working even as well as it does.

Beldar said...

Prof. Althouse, set aside your cruel neutrality. Lessig argues that "[t]his is the time when every mixed emotion needs to find voice." May we hear yours directly, rather than trying to guess it by inference — a dangerous task when dealing with someone like you who delights in playing devil's advocate?

Given that the undisputed facts could obviously support a felony conviction at trial, do YOU think the prosecution was unreasonable in demanding that any plea be to a felony (even with no jail time)?

If Swartz had rejected any plea, and had been convicted of a felony, but had the incarceration portion of his sentence suspended, would you think that fair or unfair?

Eric said...

Beldar, my complaint is the system is set up such that it's in the state's interest to overcharge defendants. We can't afford to take every case to trial, and that makes the guy who doesn't take his plea bargain a threat to the system.

Whereas we used to just charge someone for spitting on the sidewalk, now we'll charge them for spitting on the sidewalk, conspiracy to spit on the sidewalk, spitting on a sidewalk within 1000 ft of a school, lying to a federal official, conspiracy to lie to a federal official, conspiracy after the fact, conspiracy to form a conspiracy, and spitting on the sidewalk while in possession of a tin of Copenhagen.

Now, even if you didn't actually spit on the sidewalk, as a defendant you're an idiot if you don't take the plea bargain unless you can affirmatively refute the charges, because otherwise you're risking a sentence that would be ridiculous even if you were guilty.

That's the problem. The deck is stacked against the defendant such that the presumption of innocence is turned on its head. If you're innocent you'd damn well better be able to prove it.

Balfegor said...

Re: Beldar:

To the extent that prosecutors misperceive the strength of their cases, and accordingly are too aggressive in charging or too resisting to pleading down, then yes, some percentage of defendants — at the margin — will capitulate and take a worse deal than they "ought" to have gotten in a perfect world. But other defendants with better counsel won't make that mistake; they'll resist, and go to trial, at which point the decisions of the judge and jury end up replacing the predictive guesses made by both sides.

You're assuming a world free of transaction costs. Counsel -- good counsel -- are frequently expensive, and not everyone is protected by generous indemnification agreements or D&O insurance, etc. If everyone had infinite money or top quality legal counsel were free, I'm pretty sure you'd see a lot more people challenging criminal cases in court. And more than a few of them would win too.

I don't really think this is a marginal phenomenon either. The well-heeled defendant who can afford to take the process as far as he and his counsel think the facts will support them is the exception, more than the rule.

Jeff Hall said...

Beldar said...

Given that the undisputed facts could obviously support a felony conviction at trial

But a felony conviction of what? He used a network to which he had lawful access to download papers that he had a license to use (and most of which were, for that matter, in the public domain.) Does anyone know just exactly what law he was accused of breaking? How do I know that I'm not breaking it when I download papers from my school's library?

KLDAVIS said...

"Mitch H. said...
Lessig never struck me as a man familiar with the sensation of shame, but it is a good thing if he is learning in his middle age yet."

I'd suggest you look up Hardwicke v. American Boychoir and ascertain why Lessig had special cause to represent the plaintiff.

Mitch H. said...

KLDAVIS, that exact case was what I meant by Lessig's alienated relationship with the idea of shame.

Specifically: “I’ve never felt angry, or really angry, at Hanson,” Lessig says. “Hanson’s sick. He’s got a disease. The real evil isn’t the Hitler. The evil is the good German. The evil is all those people who could’ve just picked up the goddamn telephone and stopped it.”

That shows no understanding of the actual functionality of shame as a social mechanism. The disease model of evil and shame as a social mechanism are mortal enemies of each other, philosophically speaking.

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