It Happens Every Day

There has already been quite a lot of ink spilt on the Internet regarding the recent sad loss of Aaron Swartz. (And, yes, Bunny Chafowitz, I put “spilt” in there just for you, since I know you think that verbs should not end with “t.”)

Unsurprisingly, that ink spreads all over the place, forming inane commentary, as well as some more thought-provoking. (Equally unsurprisingly, two of the best articles — this one and this one — come from New York criminal defense attorney Scott Greenfield. I don’t know why I even bother to blog, with him still casting his long shadow over the blawgosphere. (For the record, I knew he wouldn’t quit: real writers can’t quit. At most, we slow down while tending to other life issues.))

As Scott points out, Aaron Swartz’s case is not unique in the criminal “justice” system; he’s just getting more attention because of who he was, and, more importantly, who his many admirers are.

The consensus appears to be that Aaron killed himself because of overzealous prosecutors, who apparently caused Aaron to believe that he faced the possibility of thirty to fifty years in prison, plus huge legal fees and potentially huge amounts of “restitution” (for what was never actually lost).

Jesselyn Radack over at Daily Kos bemoans the loss and suggests we all

demand[ ] serious Congressional oversight and accounting for the selective, vindictive and overzealous prosecutions of hackers and whistleblowers.

TechDirt complains that

Aaron Swartz Could Have Killed Someone, Robbed A Bank & Sold Child Porn & Faced Less Time In Prison

Probably not.

Because, again, as Scott points out, Aaron’s case is not unique. It’s not about “selective, vindictive and overzealous prosecutions.” That’s what makes the case all the more horrible. This is “just another day in America’s ‘justice’ systems.” Heck, Aaron isn’t even alone in choosing suicide as the best option for avoiding the injustice of our “justice” system.

This is “justice” in the United States of America.

A man, participating in an online wailing wall because of a cop who got away with murder, is arrested and charged with at least one “strike” felony for “making  “terrorist threats.”

Sounds like a potentially terrible crime. He’s not just making threats. He’s making terrorist threats!

Of course, there are (at least) two things indicating this is probably not at all true.

  1. He made the alleged “threats” on Facebook.
  2. There’s no such thing as “terrorist threats” in California’s Penal Code, other than owning a 0.50 BMG rifle.

Go on. Search it. I’ll wait.

So it’s not there. But, boy, does it sound terrible, or what?

And that’s why the newspaper was told that he was arrested for making “terrorist” threats; specifically, for posting, on a website board for those with heated tempers, “50 rounds to your dome Moody.”

I guess someone, somewhere, with enough desire, could see that as

so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety.

Which is what California law requires for a criminal (not “terrorist”) threat.

And that’s one of California’s infamous “strikes” that could count towards the equally-stupid-and-infamous “Three Strikes and You’re Out” legislation.

So maybe you can drive past a cop and flip him off with impunity. (Maybe.)

You damn sure better not post an ambiguously-worded comment online and live within just over an hour’s drive of where you might be able to locate the cop about whom you made the comment who is, at that very moment, shaking in his boots with fear that you will actually carry out the “threat,” even though he owns a gun, is part of the criminal elite, and you don’t have either such benefit.

Or maybe you’re just the guy who stopped by my office today, who was standing in the front yard of a private residence with his buddies in a small town several clicks outside of Fresno. When the cops drove by and saw them standing in the front yard, they started shining spotlights into their eyes. This guys says, “Hey! Quit shining those lights in my eyes!”

Next thing you know, he’s being pulled out into the street, and told he’s under arrest for public intoxication. Only, since there’s actually no intoxication, there’s no blood test, or even breath test.

But he has to hire an attorney to defend himself in court (for what is actually accidental “contempt of cop”).

Or maybe you’re the just-turned-thirteen-a-couple-of-weeks-ago kid I was representing recently, who found a package of “blunt wrappers” on his way to school last month and had the misfortune of being searched on arrival — since schools are “constitution-free” zones these days — and was dragged into court. The probation department, and the prosecution, arguing of course for “the best interests of the minor” — the law requires them to say those words, even though they neither mean them, nor actually know what they mean — wants to see this kid, who was twelve at the time, locked up for just over two months.

“There needs to be ‘accountability,'” said the probation officer.

“We agree with probation,” said the District Attorney. “This is a serious crime.” (Emphasis added, but that really was the statement. A thirteen-year-old, found with “blunt wrappers”: a serious crime. I wonder where murder stands, comparatively speaking. Does the DDA even have a word that can encapsulate the horror?)

Fortunately, reason prevailed in this case. I argued,

We can pretend that physiology is irrelevant, even though we all know that’s not true. [My client has some mental health issues, including such amazing attention-deficit problems that he will often ask me the same question two or three times before he realizes I've already given him the answer.] We can lock him up, and begin the process of institutionalization. Or we can take note of the extensive efforts of his mother in attempting to obtain mental health assistance, and allow her to take her son, who has just been screened, to Mental Health next week in order to get the assistance he needs to straighten himself out.

Without divulging any more details, the judge issued a ruling that will, hopefully, avoid incarceration of this child, who was 12 when he got in trouble, but has now reached the ripe old age of 13, making him Public Enemy Number One to Probation and the Deputy District Attorney. (And, of course, he’s black, which means there’s an automatic “presumption of dangerousness.”)

Or maybe you’re my “domestic violence” client, whose girlfriend is clearly engaging in massive hyperbole over what you did to her. It’s not that you’re actually innocent. But you didn’t do all the things of which she has accused you. Not by far.

In fact, I doubt the Batman’s Joker could have come up with some of the ideas that she communicated to the police, even if you can figure out how to reconcile her first story with her second story.

And now you’ve got a choice. You can fight the charges because the majority of them are false, and risk the very likely possibility that a jury will believe more of them than they should. Or you can take the offer of the prosecution to spend more time in prison than you should, even considering the crimes of which you arguably are actually guilty.

Maybe you’re my “assault with a deadly weapon” client, who kept getting into fights after drinking too much. The deadly weapon was allegedly a beer bottle, which may, or may not, have been accidentally broken when someone fell on it during a fight. After a huge courtroom fight by me, the client was granted probation instead of prison, and a chance to turn her life around.

Subsequently, she did just that. Again I don’t want to provide enough details to accidentally identify her, but the things she’s done with her life would make anyone proud.

So awhile back, we applied for an expungement of her conviction — which had already been reduced to a misdemeanor “for all purposes” due to her performance on probation — and because of the fact that she’d performed so well her probation was terminated early, the court was required by law to grant her requested expungement.

Required by law.

And yet the District Attorney’s Office still filed a motion objecting to the idea of the court granting the expungement.

Our criminal “justice” system has become such a monstrosity that it even puts Iran to shame.

The problem of prosecutorial overreach did not begin with Aaron, and it’s not going to be solved overnight. The problem is not just about obvious injustices done to a good person, but, more often, about bad things happening to bad people.

As Dan Kennedy noted, [federal prosecutor] Ortiz made waves among civil libertarians earlier with the aggressive prosecution of Tarek Mehanna, a propagandist for Al Qaeda. We all think he’s a bad person, and so few stood up when Ortiz’s office did something bad to him, putting him away for 17 years for things he said.

Similarly, many of you recognize Whitey Bulger not by name, but by character: he was the inspiration for Jack Nicholson’s character in The Departed. If his reputation is at all true to life, then he is almost certainly guilty of the murder for which he is being prosecuted by Ortiz’s office, but that does not mean he should be precluded from using any of his assets to defend himself.

It is that culture of over-prosecution and over-punishment that needs to change. Stories come and stories go about the United States’ culture of incarceration, and we ignore them, because they appear to affect only bad people. Shane Bauer spent two years incommunicado, held as a spy in an Iranian prison, and when he came home he investigated solitary confinement in the United States and concluded it was worse.

This is the world into which Aaron Swartz fell.

You see, it’s not just a matter of whether a person committed a crime or not. I will be the first to admit than many of my clients are guilty.

Let me insert here for potential jurors who have found my website, despite the judge’s orders that you not do your own research relating to the case, that while it’s true many of my clients are guilty, you don’t know if the one you sit in judgment on today is one of those.

He or she may very well not be.

So please, even though you have already shown a propensity to ignore the court’s orders to you, please recognize that the evidence might show that you’re actually sitting on one of the cases where I’m representing someone who is actually one-hundred-percent bonafide innocent. Maybe he or she accidentally pissed off the wrong kind of cop. The lying kind. Which are proliferating like weeds because jurors like you let them. Maybe that’s why we set the case for trial, despite the obvious risks of having to convince someone like you.

The problem, though, is that even where someone did something “wrong,” or even “illegal,” they might be facing — as was Aaron Swartz — a situation where the prosecution was trying to scare the living bejeezus out of them, to convince them to admit to crimes possibly more serious than those they actually committed, in order to avoid the possibility that a jury would convict them for something they didn’t do, which would result in a near-life, or even a life, sentence.

It didn’t just happen to Aaron Swartz.

It happens every day.


About Rick Horowitz

Rick Horowitz is a criminal defense attorney with an extreme dislike of the criminal "justice" system which routinely ignores the Constitution, the Law, and the lives it ruins.

In addition to this blog, Rick also writes at Fresno Criminal Defense.

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