Thursday, January 24, 2013

It's called a system for a reason

Almost two weeks ago Aaron Swartz, the creator of RSS (Real Simple Syndication) and an internet visionary took his own life while staring a federal prosecution in the face. There has been much hand-wringing ever since.

Mr. Swartz' family, friends and supporters have portrayed this as a case of an over-reaching prosecutor pressing forward with a case that the alleged victim didn't want to see pursued.

There is much to be said for that proposition. The expression that if you're charged in federal court you need a priest more than an attorney has a bit of truth to it. Sitting in federal court on the wrong side of the "V" is not a place that anyone in their right mind would choose to be.

But this didn't start with Aaron Schwartz.

Of course Mr. Swartz was white. He was rich. He had a dedicated following on the internet. He was a "freedom fighter" in the war for control of the internet. One day Mr. Swartz decided to download as many documents from JSTOR as he could. To facilitate his mission to liberate the scholarly papers he set his laptop up in a closet on the MIT campus and let it do its thing. Apparently he was upset that JSTOR compensated the publishers of the papers and not the authors. He claimed JSTOR was preventing the public from benefiting from the research.

He was charged in Massachusetts for breaking into a building with the intent to commit a felony - a charge that was later dismissed.

Los federales then charged him with computer fraud. He was facing up to 35 years in prison for downloading the articles - even though he had reached a financial settlement with JSTOR. He was offered a plea deal in which he would plead guilty in exchange for six months in prison.

Critics of the prosecution have singled out Carmen Ortiz, the US Attorney in Massachusetts, for overstepping her authority.

Well it wouldn't be the first time a prosecutor when overboard with a case. But in the vast majority of those cases, there is no high-profile defendant. And there's no outcry from the public.

No one except for family members were shedding tears for poor black men charged with possession of crack and facing sentences a hundred times more severe than the middle class white guys charged with possession of the same amount of powder cocaine.

What Mr. Swartz faced was not unusual. It's just that few folks care about what goes on down in the trenches in the criminal courthouse. The media is more concerned about tabloid-style crime stories. Reporters are under pressure to meet deadlines. No one cares about the guys in the holdover who can't afford to post bond. His story isn't sexy. It would also take too much time to do the story properly. So no one reads about it.

It's routine for a prosecutor to charge a defendant with a higher level crime in order to have some bargaining power down the road. Now you can abandon the enhancements or reduce it to a lesser-included to sweeten the pot.

Mr. Swartz' tragic death will shine a spotlight ever briefly on what really goes on in the criminal (in)justice system - but the machine will keep on running long after the next story steals the limelight. You can see it in courtrooms across the country on a daily basis - only you won't know it's even happening if you're sitting on the other side of the bar.

No comments: