[conspire] Post Mortum legal explosion

Ron Guerin ron at vnetworx.net
Thu Jan 24 16:09:28 PST 2013

On 01/24/2013 05:41 PM, Rick Moen wrote:
> Quoting Ron Guerin (ron at vnetworx.net):
>> I have often seen that said in related threads.  I presume when the
>> old saying was fresh, it was based upon knowing what the crime was,
>> and knowing what the proscribed punishment would be.
>> Those conditions no longer apply in contemporary society.  It seems
>> to me that Swartz was facing something in the range of zero days to
>> life in prison (50+ years is effectively life in prison).
> No, he was facing between four months (if he pleaded) and one to 1.5
> years (if he went to court and lost).  Please see Kerr's second piece.

I find Kerr wholly unpersuasive in his attempt to be an apologist for 
our legal system and how it likes to operate.  His pieces are a study in 
how to sound like a scholar while completely ignoring the most important 
facts of the matter.  They probably admire that sort of thing at law 
school, but I do not.  Swartz was facing over 50 years for a litany of 
alleged crimes.  That's not me saying it, that's what the law says, 
that's what his prosecutor said[*], that's what he was charged and 
/threatened/ with.  Kerr says it too by listing the charges, but then 
burns up a lot of words obfuscating that simple fact and its 
consequences.  We have to deal with the law as it is, not how Kerr 
thinks it would have played out, so Kerr's speculation about what the 
end result might be is completely beside the point, and underlines my 
criticism of the 'old saying'.  Nobody has any idea what Swartz would 
have gotten, since they were adding new charges and new punishments up 
until Swartz's death.  As for current plea bargaining practice, it's 
reprehensible.  The law would never uphold a contract drawn up under the 
same circumstances since one of the parties clearly is being compelled 
to agree to it under threat of loss of life or liberty. To those 
victimized by this system, it matters not that it's a prosecutor and not 
the local mob boss making the threat.  "The deal or your life" is not a 
remotely acceptable way of doing things.

> There is also a logic problem in what you said.
> You might reasonably assert that Swartz was unclear on which specific
> statutes he would be chargeable under, but it is not credible to assert
> that he thought he was not transgressing the law in a serious way.
> Again, Kerr details reasons.

I've read Kerr's pieces, and that's a part of my life I'll never get 
back.  Kerr is a shameless apologist for a system gone off the rails. 
I've read him before, and he continues to impress only in his dedication 
to excusing the inexcusable under the guise of being a legal scholar.

Given all the details available today, I don't find it credible to 
assert that a reasonable person who understands what Swartz actually did 
would need to have thought they were committing a /crime/, since 
arguably nothing he did was a obviously a crime.  I don't find anything 
about this case remotely reasonable.  Kerr's details merely underline 
the outrageousness of our legal system, the laws that get passed, and 
the people entrusted with the power to deprive others of life and 
liberty.  This was nothing more than a Terms of Service violation, not a 
crime that should have involved prosecutors.  Nothing about Swartz's 
actions indicates he believed he was committing a crime.  Kerr conflates 
"wrong" with "criminal".  Avoid making the same mistake.  You may know 
you're doing something wrong, that does not mean therefore, you have 
committed a crime.

The only reasonable thing in Kerr's pieces are that people should focus 
their ire on the system and not the prosecutors.  That is in fact, my 
point as well.

- Ron

[*] Prior to the last round of added charges, the prosecutor released a 
press release trumpeting her charging Swartz with crimes punishable up 
to 35 years.

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