"Lobster rolls may bench spree judge."

Headline at The Boston Herald.

Federal prosecutors say that U.S. District Court Judge Mark L. Wolf — who rescinded killer Gary Lee Sampson’s 2003 death verdict after learning a juror lied about her family’s criminal history — entertained a defense witness on Martha’s Vineyard last summer even after noting in an order that Dr. James F. Gilligan’s psychiatric report was part of the Sampson defense. U.S. Attorney Carmen Ortiz’s office has asked for evidence in the matter from Wolf before deciding whether to ask Wolf to recuse himself from Sampson’s penalty phase retrial, due to start this fall.

Wolf disclosed Friday that he and Gilligan were co-panelists last July at a Martha’s Vineyard Film Society screening of a documentary on prison guard brutality titled, “The Life and Mind of Mark DeFriest.” Wolf admitted in court yesterday he invited Gilligan and attorney Alan Dershowitz to his vacation home for lobster rolls before the event.

Carmen Ortiz... a familiar name. I'll have to publish this post to click on the tag and refresh my memory.

ADDED: Ah, yes, Ortiz is the prosecutor who went after Aaron Swartz. 

The famous lawprof Larry Lessig is walking across New Hampshire in the wrong kind of pants and it's a story in The New Republic because...

... well, you'll have to read a long way into this article to figure out why, and it's not the cause of knowing better than to wear jeans when hiking in cold, wet weather.

Wasn't there some old lady that was walking across America one time, for peace or something like that? And then there was Forrest Gump, running across America, getting to the end, then turning around and running the other way, and gathering followers, even though he had no message? Or was a happy face T-shirt the message? I don't know, but there's no way I'm sitting through that movie again to try to find out.

But I will try to read this TNR thing. Scanning to paragraph 7:

And so, while the New Hampshire Rebellion is patterned after the exploits of “Granny D,” the octogenarian campaign-finance-reform activist who walked the length of country in 1999...

Yes, that's the old lady I just mentioned. Granny D. Campaign finance reform? I'd forgotten. But she was noticed. Because she was old, and she was walking. The whole length of the country. Lessig is reasonably young, and he's only doing a 2-week, 185-mile walk. But he's famous, and he's savvy about getting publicity.

... Swartz is its real inspiration. Lessig sometimes calls the march “Aaron’s walk” and timed it to begin on the one-year anniversary of Swartz’s death. “That event radicalized me,” Lessig tells me. “It’s pushed me over an edge, a certain kind of edge.”

Pushed over the edge, by a young man who went over the edge into suicide.

Walking is a grand old way of spreading a message and gathering followers. It's the Jesus method. Imagine Jesus augmented with tweeting and TED talks and all the other mechanisms of modern media.

"[S]ome have wondered if Wales, who couldn’t figure out a way to become rich off his innovation, was cynically making a play to cash in on being a great humanitarian."

From the NYT Magazine article "Jimmy Wales Is Not an Internet Billionaire."

Wales... realized early on that the community would revolt if he were to monetize Wikipedia by selling ads. He may now travel the world giving speeches and even include Bono as a friend, but Wales’s celebrity relies largely on being the guy who made the sum of the world’s information free without making a penny himself. As such, his reputation remains inextricably linked to the noisy, online volunteers who got him there.

Much more at the link.

Wales likes to invoke the higher purpose of Wikipedia. He applies his libertarian worldview to the Internet and has taken on institutions like the United States government and Apple for threatening to curb the free exchange of information on the Web....

[His] proximity to famous people doesn’t sit well with some members of the Wikipedia community who assert that Wales’s new life is, in some ways, contradictory to the egalitarian online world he created.....

Wales... ensures he is not taken for a radical. He treads carefully when weighing in on more extreme members of the free-culture movement, like Julian Assange — who he has criticized for using the “wiki” name — and online hacking collectives like Anonymous. Wales and I met for lunch the day after the 26-year-old computer programmer and Internet activist Aaron Swartz killed himself. The community had erupted with calls for Wales to weigh in, but he was hesitant. “People have been pushing me to comment, but I didn’t know him,” Wales told me. He has also stayed mostly mum on Edward Snowden, the contractor for the National Security Agency who leaked confidential information about widespread snooping by the United States government....

The article begins and is larded with info about his wedding and his wife (and wives), which I suspect is another example of the NYT's hackneyed, desperate playing up to female readers.

"Dianna really loved her six-month month internship at Cat Haven."

Says her father, relying on the old "died doing what she loved" cliché.

Dianna Hanson was volunteering at Cat Haven sanctuary in Dunlap when she was tragically attacked after getting into the male lion's cage.

Is that the right use of "tragically"?

IN THE COMMENTS: ByondPolitics said:

You didn't provide a [sic] in your title.

It’s possible that the word "tragedy" stems from the ritual sacrifice of goats. However, there is also evidence that the word arose because the chorus sounded like the song of goats — much like a current internet meme that matches popular songs to bleating goats. However, people aren't goats (which is precisely why the internet meme is funny and your ham-fisted question is not) and lions aren't known to perform acts to large numbers of fellow lions in order elucidate concepts regarding emotion. Therefore, the action at issue is not a reversal of whom was sacrificed but rather whatever action of hers led to her death. The nature of that action is unknown.

In any case, Aristotle seems a fair place to assess whether the performance of a deed merits the adverb and the answer is yes. The deed was important. It was complete. It had great magnitude. It evoked pity and fear. There is also substantial evidence that she used her acts during the internship to effect, in a broad audience, a relief from those emotions.

Ah. The question is reminiscent of ones asked daily in Freshman Comp. Good Times. Good Times.

A more interesting question is why you repeatedly make frigidly flippant remarks immediately after the deaths of warm and valuable young people whom were striving to effect positive change: David Foster Wallace, Aaron Swartz, and now this woman. It's disturbing.

Why? I aim to disturb. Why do you think you shouldn't be disturbed? Also, "whom were striving" is bad English. And speaking of women and "warm... young people," why did the warm young persons David Foster Wallace (is 46 young?) and Aaron Swartz hang themselves in such a way that their wife/girlfriend would discover their hanged bodies? Why are they considered "warm" when they did that? Are you more disturbed now?

As for women who get their sentimental feelings stimulated by consorting with lions... these people are stupid. Swartz and Wallace were extremely smart. Responsibility varies. Face reality. To call what I'm saying "frigidly flippant" is to let yourself off easy. You want to talk about gender politics?! Listen to yourself. You think I'm being shallow. Entertain the possibility that you are the shallow one... and that you are a sexist pig.

But thanks for the heads-up on "month month." That's funny.

Aaron Swartz's "family and closest friends have tried to hone his story into a message, in order to direct the public sadness and anger aroused by his suicide to political purposes."

"They have done this because it is what he would have wanted, and because it is a way to extract some good from the event. They tell people that the experience of being prosecuted is annihilatingly brutal, and that prosecutors can pursue with terrible weapons defendants who have caused little harm. One of the corollaries of this message is that Swartz did not kill himself; he was murdered by the government. But this claim is for public consumption, and the people closest to him do not really believe it. They believe that he would not have killed himself without the prosecutors, but they feel that there is something missing from this account—some further fact, a key, that will make sense of what he did."

Larissa MacFarquhar — in The New Yorker — looks at the real complexities of the Aaron Swartz story. This is an extremely impressive piece. Read the whole thing. The passage above is the best abstract summary of what is in the piece, and I'll extract a few more things that are better examples of the kind of details that flesh out that abstraction:

He disliked all vegetables and refused to eat them except in extremely expensive restaurants, such as Thomas Keller restaurants. He had ulcerative colitis, a serious digestive disorder similar to Crohn’s disease; he also thought that he was a “supertaster,” experiencing sensations of taste more intensely than regular people. Partly for these reasons, he ate only foods that were white or yellow. He ate pasta, tofu, cheese, bread, rice, eggs, and cheese pizza. He was phobic about fruit and wouldn’t touch it. He rarely drank alcohol and was careful to stay hydrated. He went through four humidifiers in his apartment in Brooklyn. He said that he left San Francisco because the air-conditioning was bad....

He became a political activist.... But he never felt as strongly about any new idea as he had once felt about them. He would adopt a cause, only to become dissatisfied, deciding that it wasn’t important enough, or was too unlikely to succeed, and he would move on to something else....

He came to believe that the influence of money in American politics was so enormous a problem that possibly little else could be solved until that was. Then again, there were always other countries: in conversation with an Australian friend, he decided that it would be ridiculously easy to “take over Australia,” but that since the country had only twenty million people it wasn’t worth it.

"Once your life is inside a federal investigation, there is no space outside of it."

"The only private thing is your thoughts, and even they don't feel safe anymore. Every word you speak or write can be used, manipulated, or played like a card against your future and the future of those you love. There are no neutral parties, no sources of unimpeachable wisdom and trust."

"You read about these Tiger Moms — that’s the opposite of the way we viewed things."

Said Aaron Swartz's father. "Our perspective was — and remains so — that our kids should follow their interests."

Swartz’s parents were quick to recognize their son’s enormous intellect and gave him space to cultivate it.... They often deferred to his judgment and ignored his quirks. If they noted his moodiness, they would do so cryptically, as if afraid to offend....

The Swartzes allowed Aaron to take control of his own education at a young age, and he officially withdrew from high school after ninth grade. Between the Web and a grueling diet of books (Swartz would consume more than 100 per year), there wasn’t much he couldn’t master on his own.

Footnote: "When he was 15, Swartz stumbled across his platonic ideal for a high school education: A Boston Globe story 'about a boy who learned while traveling the country with his father, and is now an assistant professor at MIT,' as Swartz summarized it. 'Amen to that!' he wrote."

His father recalls him holding forth passionately on abstract legal concepts as a child. As an adolescent, he became devoted to the fiction of George Saunders, a writer with strong moral commitments whose idiosyncratic style (Saunders routinely makes up words) appealed to the autodidact in him.

Footnote: "Swartz later became a die-hard David Foster Wallace fan, too. Wallace once remarked that the unwritten 'end' of his masterpiece, Infinite Jest, could be 'projected by the reader somewhere beyond the right frame,' and Swartz spent months mining the text for clues. He eventually knitted them into a plausible conclusion, which he laid out on his blog under a 'gigantic spoiler' alert."

From a TNR article by Noam Scheiber about Aaron Swartz, the computer genius who killed himself last month. Since he killed himself, it's hard to know how to take this information about how he educated himself and how his parents accommodated him, but let's look at this and the contrast to what the opposite, the notorious Tiger Mother everybody was talking about 2 years ago.

"Aaron Swartz Was Right."

"The current academic publishing system is prettied-up extortion. He defied it, and the rest of us should too."

I'd like to read that article, but it's in The Chronicle of Higher Education, and a subscription is needed for access.

Ironically.

ADDED: From the article (by Peter Ludlow):

If anything, Swartz's ["Guerilla Open Access Manifesto,"] understates the egregiousness with which this theft of public culture has been allowed to happen....

[T]he articles in JSTOR were written with government support—either through agencies like the National Science Foundation and the National Endowment for the Humanities, through state-financed educational institutions, or through the tuition of students and the donations of alumni.

Once a student graduates from her college she no longer has access to JSTOR—even though her tuition supported the research that went into the data represented there. She may go on to be a generous donor to her college and still not have access to JSTOR. You have to be a faculty member or student to have access, even though, to some degree, everyone helped pay for that research....

Until academics get their acts together and start using new modes of publication, we need to recognize that actions like Aaron Swartz's civil disobedience are legitimate. They are attempts to liberate knowledge that rightly belongs to all of us but that has been acquired by academic publishers through tens of thousands of contracts of adhesion and then bottled up and released for exorbitant fees in what functionally amounts to an extortion racket.

When Swartz wrote his manifesto he pulled no punches, claiming that all of us with access to these databases have not just the right but the responsibility to liberate this information and supply it to those who are not as information-wealthy....

Aaron Swartz's act of hacktivism was an act of resistance to a corrupt system that has subverted distribution of the most important product of the academy—knowledge. Until the academy finally rectifies this situation, our best hope is that there will be many more Aaron Swartz-type activists to remind us how unconscionable the current situation is, and how important it is that we change it.

Much more at the link, if you can get in there.

Tina Brown: "I mean, he'd be impeached by now for drones, if he was George W. Bush."

That was her off-topic outburst after Bill Maher said: "The Obama administration has been heavily targeting whistleblowers — true — and information activists. What can we do to hold the government accountable for this harsh crackdown?" (Maher was driving at the Aaron Swartz incident.)

And here's Eleanor Clift calling drones "a blessing."

Well, first of all, drones are here to stay. They are the 21st Century modern tool of war. And in many ways they are a blessing. Much better than bombers because they can be more effective and targeted than bomber planes just raining bombs down. With an enemy that is harbored in various places, in countries where we are not at war with the country, it’s the only way you can really get at them short of invading that country which we did and discovered that isn’t so hot. So I would say they are, they are a blessing. But, they bring all sorts of ethical and moral concerns, and there should be some sort of judicial review....

"The other night, when [redacted] asked me why I switched from computer science to sociology, I said..."

"... it was because Computer Science was hard and I wasn’t really good at it, which really isn’t true at all... The real reason is because I want to save the world," wrote Aaron Swartz, quoted in a long article titled "The Idealist: Aaron Swartz wanted to save the world. Why couldn’t he save himself?"

"Swartz didn't face prison until feds took over case..."

"The late Internet activist was facing a stern warning from local prosecutors. But then the U.S. Attorney's office, run by Carmen Ortiz, chose to make an example of Aaron Swartz, a new report says."

The report is likely to fuel an online campaign against Ortiz... An online petition asking President Obama to remove from office Ortiz — a politically ambitious prosecutor who was talked about as Massachusetts' next governor as recently as last month.

There's a hot campaign to destroy Ortiz. Note that there's also this other case where she's accused of "bullying" a motel owner, in what she calls "strictly a law-enforcement effort to crack down on what was seen as a pattern of using the motel to further the commission of drug crimes for nearly three decades." Ortiz is considering appealing in that case, and the Boston Herald has the headline: "Ortiz to motel owner: We’re not done yet." It's not like she said we're not done yet.  That's the newspaper's paraphrase of "We are weighing our options with respect to appeal."

Is the prosecutor getting bullied? If she were to commit suicide — Swartz-style — would everyone feel ashamed of what they did to her?

No one cries for a prosecutor.

"With Aaron's death, we can wait no longer."

"This time there will be change or there will be chaos."

"When I was at M.I.T., if someone went to hack the system, say by downloading databases to play with them, might be called a hero..."

"... get a degree, and start a company. But they called the cops on him. Cops."

From "How M.I.T. Ensnared a Hacker, Bucking a Freewheeling Culture."

Swartz "was deeply committed to civil disobedience and to the moral imperative of breaking unjust laws."

"On the other hand, he seems to have had his soul crushed by the prospect that he would spend time in jail. This is an unusual combination. Usually the decision to engage in civil disobedience comes along with a willingness to take the punishment that the law imposes. But despite Swartz’s apparent interest in legal questions, he seems to have made his decision with a blind spot to the penalties that would actually follow. It’s a strange situation: Swartz was really interested in the law, and he knew he was violating the law. He knew a lot of lawyers who would have told him that this would likely happen if he went ahead with his plan. But there was some apparent blind spot that led him to act anyway."

"Must you always be out in that ghastly clown suit, running around annoying people?"

Says Pretty Alice to the Harlequin in Harlan Ellison's "Repent Harlequin!' Said The Ticktockman," which I read on the urging of commenter Icepick because of the way it reflected on the recent news stories about Aaron Swartz, David Gregory, and the Boston ban on drinking games.

I downloaded this Orson Scott Card collection — "Masterpieces: The Best Science Fiction of the 20th Century" — which included "Repent Harlequin," because I wanted to understand this harlequin/ticktockman distinction, and lo and behold here's the harlequin — actually, what do you expect? he's a harlequin — wearing a clown suit, when just 5 days ago, the bloggism of the day was clown suits. We were pimping clown suits.



It's weird how these themes seem to coagulate on their own.

Aggressive prosecution #2: Internet activist driven to suicide.

The Wall Street Journal delves into the prosecution of Aaron Swartz:

Mr. Swartz's lawyer, Elliot Peters, first discussed a possible plea bargain with Assistant U.S. Attorney Stephen Heymann last fall. In an interview Sunday, he said he was told at the time that Mr. Swartz would need to plead guilty to every count, and the government would insist on prison time....

With the government's position hardening, Mr. Swartz realized that he would have to face a costly, painful and public trial....

He knew what he was doing was criminal, and he was a very intelligent man who chose to do it anyway and conceived of what he was doing as actively virtuous. Wouldn't a public trial serve his purposes in critiquing the laws he opposed and arguing for the liberation of the data files he tried to set free? (I'm picturing Swartz as a bit like those animal rights activists who steal into a mink farm and open all the cages. They believe that they are serving a call of morality higher than the interests embodied in the law they willingly violate.) It's civil disobedience, which — in classic form — demands that you take the law's punishment. That's part of the acted-out argument that the law is immoral.

"It was too hard for him to ask for the help and make that part of his life go public," [his girlfriend, Taren Stinebrickner-Kauffman] said. "One of the things he felt most difficult to fathom was asking people for money."

His crime was about making more information freely public, and yet he cringed at publicity about his own plight, even where his plight was something he invited into his life and believed in as an especially good thing to do. Why the shame? Why not expose yourself as a martyr to laws you oppose?

Swartz's girlfriend and family released a statement saying: "Aaron's death is not simply a personal tragedy.... It is the product of a criminal justice system rife with intimidation and prosecutorial overreach." Understandably, they want to infuse their loss with meaning. But did the prosecutors go wrong?

The Massachusetts U.S. attorney's office declined to comment Sunday, saying it wanted to respect the family's privacy. But in a news release from July 2011, when the charges in the case were announced, U.S. Attorney Carmen Ortiz said, "Stealing is stealing, whether you use a computer command or a crowbar."...

The government indicated it might only seek seven years at trial, and was willing to bargain that down to six to eight months in exchange for a guilty plea, a person familiar with the matter said. But Mr. Swartz didn't want to do jail time.

"I think Aaron was frightened and bewildered that they'd taken this incredibly hard line against him," said Mr. Peters, his lawyer. "He didn't want to go to jail. He didn't want to be a felon."

But he knowingly and willingly committed numerous felonies, did he not? I'm not hearing the lawyer say that Swartz didn't do what the prosecutors said he did. The argument was that the law ought to be different. If you break the laws as a way to make that argument, how is the prosecutor supposed to respond? Your argument is to the public and to the legislators.

To say he didn't want to be a felon is to express a wish about the past. And it's a wish that wasn't even true. Swartz wanted to be a felon who eludes prosecution. Who gets that wish in a system of law? The intelligent, educated, nice-looking, good guy with lovely friends and family? The person who credibly threatens self-murder? The activist capable of articulating why the crime he committed should not be a crime? 

Aggressive prosecution #1: California businessman commercially growing medical marijuana.

Adam Nagourney, in the NYT, gives very sympathetic treatment to Matthew R. Davies — "a round-faced 34-year-old father of two young girls" with "graduate-level business skills" who "paid California sales tax and filed for state and local business permits" and got the advice of many lawyers as he set up an enterprise that plainly and overtly is a felony under federal law. Davies told the NYT:

“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”

Cloak illegal activity? It is illegal activity. Federal law is real. Haven't you heard?!

The right way? Cloaking is the right way when you're committing crimes. With your business education, somehow you were all: Hey, what a smart idea I have — being completely out in the open about breaking the law. Why hasn't anybody else thought of this?

And I love the way the NYT suddenly has a pro-business orientation. Davies deserves special grace under the law because he's using the structure of business and because he's excited about making big profits! Compare that to all the articles anguishing over Citizens United and how terrible it is to respect free speech rights when the speech comes from a place that is structured as a business.

“Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana,” [said a letter from United States attorney for the Eastern District of California, Benjamin B. Wagner, a 2009 Obama appointee.] Mr. Wagner said that prosecuting such people “remains a core priority of the department.”...

“It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”

Yes, and it is mind-boggling that those who argue for the broad interpretation of federal power and who scoff at the idea of the 10th Amendment and reserving powers to the state somehow can't grasp the meaning of their general propositions when they encounter an issue where they prefer the state policy to the federal policy. The NYT and other drivers of elite opinion ought to have to face up to the reality of what their legal propositions entail.

And quite aside from the problem of the allocation of power at the federal and the state levels, how about some consistency about equal justice under the law? Let the law — as written — apply the same way to everyone, whether they have a round face and 2 young daughters or not, whether they've gone to grad school or not, whether they have big visions of massive profits or they are living hand to mouth. If the law is wrong, change the law — for everybody. Don't cry over the people you think are nice — like David Gregory and Aaron Swartz. Nonphotogenic and low-class people deserve equal treatment, and cutting breaks for the ones who pull your heart strings is not justice.

"I worry that Swartz’s prosecution is a sign that America is gradually losing the sense of humor that has made it the home of the world’s innovators and misfits."

... America is gradually losing....

"We need more harlequins, fewer ticktockmen."

Said Icepick in last night's thread about Boston banning drinking games in bars. He began:

I recently read "The Scouring of the Shire" chapter from Return of the King. It was disturbing how much the Shire under (ultimately) Saruman's direction sounded like modern America. The country is being run by over-officious jerks, and the American people are putting up with it. Land of the free no more....

And then:

We need more harlequins, fewer ticktockmen.

A link goes to the Harlan Ellison story "Repent Harlequin!' Said The Ticktockman." 

Icepick advises:

Professor, I believe you need some more tags. One for over-officiousness, and perhaps tags for harlequins (see Swartz, for example) and for ticktockmen (anything with Bloomberg).

Ellison begins his story with a quote from Thoreau's "Civil Disobedience":

The mass of men serve the state thus, not as men mainly, but as machines, with their bodies. They are the standing army, and the militia, jailors, constables, posse comitatus, etc. In most cases there is no free exercise whatever of the judgment or of the moral sense; but they put themselves on a level with wood and earth and stones; and wooden men can perhaps be manufactured that will serve the purposes as well. Such command no more respect than men of straw or a lump of dirt. They have the same sort of worth only as horses and dogs. Yet such as these even are commonly esteemed good citizens. Others as most legislators, politicians, lawyers, ministers, and office-holders serve the state chiefly with their heads; and, as they rarely make any moral distinctions, they are as likely to serve the Devil, without intending it, as God. A very few, as heroes, patriots, martyrs, reformers in the great sense, and men, serve the state with their consciences also, and so necessarily resist it for the most part; and they are commonly treated as enemies by it.

Ellison introduces that quote with: "There are always those who ask, what is it all about? For those who need to ask, for those who need points sharply made, who need to know 'where it's at,' this...."

That story was published in 1965, when the phrase "where it's at" was quite the thing. 

ADDED: I just bought "Masterpieces: The Best Science Fiction of the 20th Century," which contains "Repent Harlequin!"

"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.