Friday, January 18, 2013

Aaron's suicide: System Contributed, Society Perpetuated

If you are unfamiliar with the circumstances surrounding Aaron Swartz's suicide, the rest of what I have to say will not make any sense to you. 

Aaron Swartz, an inspired and inspiring fellow hacker, left us by his own hand at the age of 26. This story, his story, is nothing less than tragic. The world is lesser without him. For his [alleged] 'computing hacking crimes,’ he faced 35 years in prison, 3 years of supervised release, and fines of up to $1 million. This degree of punishment is more than someone would receive if found guilty of providing direct support to terrorists in the acquisition of nuclear weaponry. Think about that. Angry? So am I, but that's not enough.

If you believe the actions of the Massachusetts U.S. Attorney’s office, and that of prosecutors Carmen Ortiz and Stephen Heymann were atrocious, reprehensible, despicable even, and think, as Aaron's father does, their actions contributed to his sons death, I'm with ya. At least 43,666 share similar outrage with you, well, us. A White House petition is calling for Ortiz's removal from office. Burn the witch! But be careful here, if you think this will change a damn thing, that societies usual focus of rage will somehow save a future young life, and lead to some kind of social justice, that’s where we part ways.

You see, many will look at the circumstances and correctly conclude, “something is wrong here” and “something needs to change!” Unfortunately, they'll focus their rage on the wrong things, things they are told to get upset about, and mistakenly serve to protect the system that contributed to Aaron's suicide. They'll focus rage on the prosecution's behavior. They’ll focus rage on “appropriate punishment” of the crime. They’ll focus rage on amending or removing a defective CFAA law and supposed intent of that law. They’ll focus rage on obtaining social “justice.” Bzzz, wrong! Fake out!

I concede that these are normal, natural, yet systemically trained responses. Rage focused this way guarantees that more similarly minded political appointees get, well, appointed. Rage focused this way guarantees we’ll get no justice. 

Aaron’s story was never, ever about “the law” or that pesky word, “justice.” Like ~90% of cases, this was NEVER going to get to a trial. You know, the visual you get where you have rights to a judge, jury of your peers, call witnesses, opportunity to confront your accusers, articulate lawyers and everything else you see on Law & Order. Like "justice," getting a trial was never on the negotiating table, where justice is supposedly decided. The prosecution didn’t want it. Aaron and his lawyers didn’t want it. This entire charade was about plea bargaining, a place where you have none of these "constitutional rights.” This case all was about the manufacturing of yet another felon, about career advancement. Look, one of Aaron's prosecutors admitted as much right here:

“I must, however, make clear that this office's conduct was appropriate in bringing and handling this case.”
Carmen Milagros Ortiz, United States Attorney for the District of Massachusetts

Please don’t waste time debating whether or not you feel the prosecution was going too far. That’s the fake out. The same fake out you’ll see in the headlines that protects the system. That answer doesn't matter. Instead, ask yourself WHY the prosecution thought their “conduct was appropriate.” That's the dangerous question few are willing entertain. They do really think that, you know. They’re not lying. Prosecutors are trained to think that way. We train them to think that way. And from the system's perspective, it was! Appropriate.

You don’t agree? I don't blame you. If this was anything about justice, please explain to me why on the same website, in the Office of the US Attorneys’ own mission statement, does the word “justice” appear exactly nowhere.

A clever, curious, person might ask, "if not justice, what is all of this really about?" Well, if you work for the U.S. Attorney’s office, or work as any trial lawyer for that matter, your career is weighed and measured by your Win - Loss record. And in case you didn’t know, plea deals are a “Win,” for all the attorneys, no matter what side of the divide they are on. Plea deals are faster, cheaper, and again where the defendant has little to no "rights," which is why power loves 'em -- protects them.

Secondly, taking on high-profile cases like Aaron’s and “winning” are worth extra points. It gets the attorneys name out there, helps them differentiate from their peers, and advance careers. It’s all about the money power baby. Don’t believe me? Ask Gloria Allred. Ask Aaron’s attorney. Don't bother, Wired already did:

“Heymann [prosecutor] was looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill," Peters said. Heymann, Peters believes, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."”

Unconvinced? Biased source right? Check out the press release from U.S. Attorney’s office website about the case. "Alleged Hacker Charged With Stealing. Over Four Million Documents From MIT Network." Yes, that's a PRESS RELEASE! PRESS PRESS PRESS. Why does this impress you society? And it does, because they wouldn't do it otherwise. I'll tell you what lawyers are NOT graded on is their appropriate application of that nebulous word, “justice.” Otherwise we'd see big headlines about expousing that. We don't. Still too cynical for you? Maybe this will help, but it won’t make you feel better:
“Ortiz [prosecutor] said it was a generous deal her office offered, and it took into account that Swartz’s actions were not financially motivated. She said Swartz would have been confined to a “low security setting.”

Please show me where appropriate application of justice entered into the thought process, especially when there were no plaintiffs left at that point. I'd be willing to bet law school systemically eliminates justice-minded do gooders. Now, have another look at that US Attorneys’ mission statement again. See what does appear?
“United States Attorneys are appointed by, and serve at the discretion of, the President of the United States”

Ask yourself, are political appointees selected on their careers merits or on the basis of their political clout? Bzzz. Sorry, trick question. The answer is already on US Attorney Carmen Ortiz’s very own wikipedia entry. Says it right there in the second sentence, immediately after her title. 

“In 2009, she was nominated to the position by President Barack Obama. Ortiz is both the first woman and the first Hispanic to serve as U.S. attorney for Massachusetts.”

Unless you count being born a women and hispanic as an accomplishment, the answer is plain as day. Make the boss man look good! I know this comment borders on racist, sexist. Please understand I've no intention of diminishing her personal accomplishments in this regard. I'm sure she had it tough. What we must question, as her customers subjects, is how this make her qualified to administer justice. And apparently we think it does, otherwise why would her gender and ethnicity be highlighted first.

Oh, and I’m also sure the possibility of Ortiz being a potential Democrat gubernatorial candidate in Massachusetts had zero effect on things. Right.

Under these circumstances, if you change or repeal the law. So what? It was never about the law, or application of justice, remember. Go ahead, call for her dismissal. Change the political appointee in the same power structure. So what? Another similar minded and well-trained appointee will gladly take their spot before the day is out. Focus on defining “appropriate behavior” when the incentives are perverted against justice. Good luck with that.

Do all these things. Declare your victory! Get your social justice and pound of flesh. What you'll also do is protect the system that manufactures felons and contributes to suicide of our best and brightest. Do everything, but ask the dangerous question... WHY. WHY does basically everyone take a plea deal. WHY do prosecutors prefer them? You better ask it because it's the only justice system any of us are likely to experience. You do know most everyone is committing three felonies a day right

And so what if Oritz is fired. It's not like she is going to be disbarred. She'll immediately go across the street to a private firm working the other side of the table, probably making far more money too. And if you are in a similar position as Aaron, you'll find her credentials impressive. A "former" U.S. Attorney appointed by the President of the United States, who knows all players and the plea bargain process. Hell yeah. Because when YOU are facing hard time you'll not be the slightest bit interested in justice after all. What you want is to get off, and she's the best person for the job. Did you know Aaron's attorney, Elliot R. Peters (Partner at Keker & Van Nest LLP), previously worked in the U.S. Attorney’s Office, Southern District of New York?

Let’s explore one layer deeper into the perversity of the system. Upon Aaron’s death Federal prosecutors were forced to dismiss the charges against him. Not because a lack of evidence mind you, but because there is no defendant obviously. In addition to a PR hit, we must assume a “dismissal” counts against the prosecutions Win-Loss case record. From that perspective, the prosecution did NOT want Aaron to die. They would have much preferred him to live, take a plea, or at least suffer a conviction. On the other hand, Aaron’s attorneys scored a dismissal -- a “Win.” 

Whoa, whoa there. I’m not saying Mr. Peters or Keker & Van Nest LLP wanted Aaron to die. No. What I’m saying is that system is set up such that when something like this happens, something that sparks true outrage, then that rage needs to be directed, and that the defendants attorneys don’t lose. That’s important because otherwise they wouldn’t play along in the farce. 

But that can’t be, the thought is too terrible to bare. I agree with you. Their defendant committed suicide after all. What do they do then? Aaron's attorneys immediately focus rage on the prosecution for being, what’s the word they used, “intransigent.” Whatever. They, the prosecution, are the real problem here! Right! Wrong! Whatever you supposedly chosen on your own doesn't matter one bit. The point is you picked a side and played along. The point is you society bought it. Burn the witch!

All that happened here was Aaron died and the system won.