National Police Misconduct Reporting Project

More on the Aaron Swartz Case

From the One Generation Away blog:

Aaron Swartz was an influential man with very important friends, and that’s why this case is getting so much attention.  Sadly, this kind of behavior by prosecutors is not an extreme example, but instead par for the course.

“[I]t’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors filed a superseding indictment designed to scare Swartz even more into pleading guilty (it actually had no effect on the likely sentence, but it’s a powerful scare tactic). Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics. What’s unusual about the Swartz case is that it involved a highly charismatic defendant with very powerful friends in a position to object to these common practices. That’s not to excuse what happened, but rather to direct the energy that is angry about what happened. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.”

That was law professor Orin Kerr.  He has a proposal for change:  “Felony liability under the statute is triggered much too easily. The law needs to draw a distinction between low-level crimes and more serious crimes, and current law does so poorly.”  Some have proposed “Aaron’s Law” which would remove terms of service violations from the federal criminal code….

Aaron Swartz knew he was breaking the law when he downloaded those articles.  What he did not know, was that if a prosecutor wanted to make his life hell, she could credibly see to it that he was locked up until his mid 50’s.  We should make sure that punishments fit crimes, and that when we collectively threaten to remove a human being from society for a generation or two, they actually did something worthy of such a profound punishment.

The Aaron Swartz Case

There is much buzz surrounding the recent suicide of Aaron Swartz–and whether prosecutorial abuse by Carmen Ortiz played a part.

Glenn Greenwald:

Whenever an avoidable tragedy occurs, it’s common for there to be an intense spate of anger in its immediate aftermath which quickly dissipates as people move on to the next outrage. That’s a key dynamic that enables people in positions of authority to evade consequences for their bad acts. But as more facts emerge regarding the conduct of the federal prosecutors in the case of Aaron Swartz – Massachusetts’ US attorney Carmen Ortiz and assistant US attorney Stephen Heymann – the opposite seems to be taking place: there is greater and greater momentum for real investigations, accountability and reform. It is urgent that this opportunity not be squandered, that this interest be sustained.

The Wall Street Journal reported this week that – two days before the 26-year-old activist killed himself on Friday – federal prosecutors again rejected a plea bargain offer from Swartz’s lawyers that would have kept him out of prison. They instead demanded that he “would need to plead guilty to every count” and made clear that “the government would insist on prison time”. That made a trial on all 15 felony counts – with the threat of a lengthy prison sentence if convicted – a virtual inevitability.

Just three months ago, Ortiz’s office, as TechDirt reported, severely escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which “carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony”, meaning “the sentence could conceivably total 50+ years and [a] fine in the area of $4 million.” That meant, as Think Progress documented, that Swartz faced “a more severe prison term than killers, slave dealers and bank robbers”.

Swartz’s girlfriend, Taren Stinebrickner-Kauffman, told the WSJ that the case had drained all of his money and he could not afford to pay for a trial. At Swartz’s funeral in Chicago on Tuesday, his father flatly stated that his son “was killed by the government”.

More background from Radley Balko and Declan McCullagh.

Disorderly Deputy Arrests Orderly Man With Video Camera

From TwinCities.com:

He had been filming from about 30 feet away, he said. Henderson said deputies gave him no warning before Muellner took his camera.

The deputy wrote on the citation, “While handling a medical/check the welfare (call), (Henderson) was filming it. Data privacy HIPAA violation. Refused to identify self. Had to stop dealing with sit(uation) to deal w/Henderson.”

Henderson appeared in Ramsey County District Court on Jan. 2. A pretrial hearing was rescheduled for Jan. 30.

The allegation that his recording of the incident violated HIPAA, or the federal Health Insurance Portability and Accountability Act, is nonsense, said Jennifer Granick, a specialist on privacy issues at Stanford University Law School.

I like this quote from Henderson:  “I’m in the right,” he said. “If they don’t drop it, I’m definitely going to trial.”    He needs some Patriot-Attorney(s).

Federal Agents Riding to the Rescue to Protect Us

From the Wall Street Journal:

Peter Gleason was a psychiatrist who devoted much of his professional life to caring for what government officials call “underserved populations.” He would have been thrilled to learn that on Dec. 3 in New York, a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a ringing opinion that vindicated the conduct for which he was indicted and arrested in 2006.

Unfortunately, Gleason did not live to see this welcome reversal of the federal government’s crusade against him and the promotion of Xyrem—a drug widely used by physicians, including Gleason, to treat a number of medical conditions beyond what the federal Food and Drug Administration approved it for. Hounded for years, he saw his career and finances ruined by the relentless war waged against him by FDA bureaucrats and Justice Department prosecutors. Gleason committed suicide on Feb. 7, 2011.

Harvey Silverglate is a Cato adjunct scholar.

Conrad Black on the American ‘Prosecutocracy’

From the  New  York  Sun Opinion Page:

The Fifth, Sixth, and Eighth Amendments guarantee a grand jury (implicitly, though this is not expressly stated, to ensure against capricious prosecutions), just compensation for seized property, due process, access to counsel (of choice), prompt justice, an impartial jury, and reasonable bail. All of these guarantees have been sliced and pulverized to varying levels of granularity in the 50 states. Grand juries are rubber stamps that almost never withhold what is asked by prosecutors, and their proceedings are often unknown to suspects and targets as they occur.

The seizure of property, especially if that property is being relied on as a source for paying the legal bills of notoriously rapacious American lawyers, frequently occurs just before the prosecutors lay their charges, freezing the civil proceedings and rendering the defendant’s property unavailable as a source of sales or borrowing to pay for counsel, who almost always demand hefty retainers at the outset. The process — from identification of a target to the end of a trial — can often be several years, during which it is practically impossible for an accused person to function normally.

Juries are subjected to an intense propaganda blast from prosecutors in the areas where the case will be heard and the jurors selected, almost invariably echoed by the media, descending even to the likes of Nancy Grace, who routinely demands to know why uncharged possible suspects, whom she names, are “still at large.” Impartial juries in such circumstances, which obtain in all high-profile cases, are hard to come by.

Bail is not just a surety against flight but a tool of impoverishment against defendants, and is frequently far from reasonable. (I posted $38 million when I was a criminal defendant several years ago. It was a stretch but I managed it, despite an illegal asset seizure, but few people have the resources to defend themselves and even face the daunting odds against them in the courtroom.)

Read the whole thing.  For more info about Conrad Black and his case, go here.

 

Federal Guilty Pleas Soar As Bargains Trump Trials

That’s the headline of a front-page Wall Street Journal article today (sorry, subscription only).

It’s great to see more attention to this subject.  The average American has no idea how lopsided the numbers are.  All across the nation, in both state and federal court, fewer than 5 percent of the criminal cases are resolved by jury trials.  Prosecutorial threats of more charges and longer sentences pressure many people into surrendering their right to a jury trial.  For background, go here.

The Jason Fyk Case: Attempted Murder for Using a Cell Phone?!

Story from WBFF Fox45:

A man who took out his cell phone to record an act, that turned out to be a crime, has ended up in jail.

The next time you hit record in public in Baltimore you might want to think twice. A fateful decision to do just that, put a Pennsylvania business owner in jail for first degree murder. It was a move that web site publisher Jason Fyk cost him dearly. “I couldn’t believe, I could not believe the ignorance of how they twisted this story into something I did,” says Fyk.

His ordeal started last February in a downtown parking garage new Power Plant Live. Fyk had been conducting an interview for his web site with stunt bicyclists when they decided to leave to resume the talk elsewhere. They encountered another group of downtown revelers parked nearby.

After a few heated exchanges, a fight with both sides exchanging blows ensued. Fyk said he stopped recording and intervened when the brawl turned violent. Both parties went their separate ways.

Shortly after posting his video of the scuffle online, police showed up at his home with a search warrant. Several weeks later, another warrant was issued, for his arrest. Fyk says he was charged with “conspiracy to commit first degree murder for taking a cell phone video.”

The charges against Fyk have since been dropped. University of Baltimore Law professor Byron Warnkin says it’s technically not a crime to hit record, even if you catch someone breaking the law.

Both the police department and the attorney general’s office have declined to comment on the issue.

The level of ignorance here is truly astounding.  This isn’t a new cop and a new prosecutor screwing up the appropriate charge in some off-the-wall misdemeanor case.  One must presume the more experienced people are handling the murder and attempted murder cases–and yet Jason Fyk finds himself facing the most severe cases on the law books!  And do note how the system offered him a “break” if he pled guilty.  A less sophisticated person might have caved in and accepted that nightmarish deal.  Plea bargaining is a problem folks.

For additional background, go here, here, here, and here.

National Registry of Exonerations

From the McClatchy-Tribune (Washington Post, June 10):

WASHINGTON — Obie Anthony served hard time in California prisons for a crime he didn’t commit.

 He’s not alone, and he’s not forgotten. Anthony is one of nearly 900 exonerated former prisoners whose wrenching stories are wrapped into a new database. The National Registry of Exonerations, being formally unveiled Monday, is the largest of its kind, and it will get bigger over time.

“This is useful, because if we want to prevent false convictions, we have to learn how we make mistakes,” Samuel Gross, a University of Michigan Law School professor, said in an interview….

Disturbingly, the database also identifies 71 individuals who were exonerated of crimes to which they’d ended up pleading guilty.

The database still captures only a slice of the exonerated population. All told, more than 2,000 exonerations have been identified since 1989. Many of these, totaling 1,170, involved individuals whose names were cleared in “group exonerations” after revelations of police corruption, including the plantings of guns and drugs.

More on problems with plea bargaining here.  Link to the National Registry here.

 

False Accusations, Innocent People, and Plea Bargains

From time to time, you will find some posts here that concern problems that are not directly related to police misconduct.  This report concerns a young man who was falsely accused of rape.  On the advice of counsel, the young man pled guilty and went to prison.  Luckily for him, he was able to expose his accuser’s lie on videotape.

There are many problems with plea bargaining — one is that it extorts guilty pleas from the innocent.  Another, not at issue in the above case,  is that police misconduct escapes scrutiny because it does not come to light since there is no trial.  More here.