[governance] Bloomberg - The Overzealous Prosecution of Aaron Swartz

[Paul Lehto]

Perhaps some of the best evidence of prosecutorial overreach in the USA -
generally speaking amongst all classes of alleged offenders - is the number
of federal cases that actually go to trial versus the number resolved by
plea bargains.  Data available from US court administration agencies show
quite clearly that the number of actual trials is dropping every year to a
present vanishingly small percentage of cases.

As a former litigator, this indicates fairly clearly to me that defendants
and their attorneys perceive far too much risk in going to trial because
the sentences and the average number of charges are so high, it makes
taking a plea bargain for a ten or fifteen year sentence pretty darn
attractive compared to rolling the dice and getting 35 years (a life
sentence for many people not quite young) if found guilty at trial under
the typically VERY broad statutes available in every area of the criminal
law including the copyright "crimes" at issue in the Aaron Swartz case.

This severe reduction in the number of criminal cases going to trial
(something the defendant, by the way, has a constitutional right to) also
indicates to me that a sizable percentage of people who are in fact not
guilty are nevertheless pleading guilty because of the risks of trial
(unless one can show that prosecutors have gotten much much better at
charging only guilty people relative to prosecutors only ten years ago,
which is a quite unlikely proposition).

Although prosecutorial immunity is indeed a problem, and this immunity is
often considered absolute or quasi-absolute when the activity in question
is the filing of charges or things that take place in court, not all
actions of prosecutors are so immune.  A somewhat lower standard applies
when prosecutors act in an investigatory function.  If a complaint can be
styled regarding the improper investigation of a charged crime and it can
be shown that the prosecutor was directing the investigation (which they
usually do, provided they are involved at that point) then there is a
better chance of making a claim.  But here, note that the prosecutor's
choice to file overzealous charges in court would still be subject to the
near-absolute immunity standard.

Paul Lehto, J.D.

On Sat, Jan 19, 2013 at 1:16 PM, John Curran <jcurran at istaff.org> wrote:

> On Jan 19, 2013, at 6:18 AM, Riaz K Tayob <riaz.tayob at gmail.com> wrote:
>
>   [The Panglossian world of US Exceptionalism.... of course these matters
> are discussed and debated, but dare to do anything about it and then those
> will be put in their place, or no?]
>
>
> The Overzealous Prosecution of Aaron Swartz
>  By Stephen L. Carter <http://www.bloomberg.com/view/bios/stephen-carter/>  Jan
> 18, 2013 1:30 AM GMT+0200
>
> ...
>
>
> Riaz -
>
> A very good question; I personally don't subscribe to a view of US
> Exceptionalism
> (that's likely because I've travelled a bit and can more readily make
> comparisons),
> but do see a system that excels at incremental improvement.   In this
> particular
> case, I do believe that the particular statute used in Swartz's
> prosecution will be
> amended to be more reasonable (see my earlier ICG posting reference to
> Time's
> article on same by Sam Gustin)
>
> Regarding the larger question raised by Carter's article, it is a
> bit more complex than
> depicted, since lowering the qualified immunity for prosecutors (as a way
> of raising the
> threshold to pursue cases), may also, if not very carefully done,
> incidentally raise the
> threshold for being able to _drop a case_ (i.e. the potential result where
> some form
> of conviction must be obtained less the prosecutor face increased personal
> liability)
> Change in this area would definitely benefit from informed discourse, and
> to the extent
> that one can claim that happens among US lawmakers, then perhaps someday
> there
> will be some productive outcome on this larger question as well...
>
> FYI,
> /John
>
> Disclaimers:  My personal views alone.  No pursuit of action against
> anyone is intended
> by this email; parties feeling overly prosecuted as a result should seek
> medical care for
> potential mental health issues.
>
>
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-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4965 (cell)
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