Aaron Swartz, Plea Leveraging & The Bordenkircher Problem

CryingJusticeAs Netroots Nation 2013 begins, I want to emphasize one of the best panels (If I do say so) of the event. It is titled: Beyond Aaron’s Law: Reining in Prosecutorial Overreach, and will be hosted by Marcy Wheeler. Joining Marcy will be Aaron Swartz’s attorney, Elliot R. Peters, of Keker & Van Nest LLP in San Francisco, Shayana Kadidal of the Center for Constitutional Rights in New York, and Professor Jonathan Simon of Boalt Hall at Berkeley. The panel goes off at 3:00 pm Saturday June 22.

As a lead in to the panel discussion, I want to address a topic that struck me from the first moment of the tragic loss of Aaron Swartz, the pernicious effect of the late 70’s Supreme Court case of Bordenkircher v. Hayes.

Paul Hayes was a defendant on a rather minor (involved $88.30), but still felonious, bad check charge in Kentucky. But Hayes had a bad prior criminal history with two felony priors. The prosecutor offered Hayes a stipulated five year plea, but flat out threatened Hayes that if he didn’t accept the offer, the prosecution would charge and prosecute under Kentucky’s habitual criminal (three strike) law. Hayes balked, went to trial and was subsequently convicted and sentenced to life in prison under the habitual offender enhancement charge. It was a prosecutorial blackmail threat to coerce a plea, and the prosecutor delivered on his threat.

Hayes appealed to every court imaginable on the theory of “vindictive prosecution” with the prosecutorial blackmail as the underlying premise. Effectively, the argument was if overly harsh charging and punishment is the penalty for a defendant exercising his right to trial, then such constitutes prosecutorial vindictiveness and degrades, if not guts, the defendant’s constitutionally protected right to trial.

Every appellate court along the way declined Hayes’ appeal until the 6th Circuit. The 6th, however, came up with a surprising decision, granting Hayes relief, but under a slightly different theory. The 6th held that if the prosecutor had originally charged Hayes with the habitual offender charge, and then offered to drop it if Hayes pled guilty, that would have been perfectly acceptable; but using it like a bludgeon in plea negotiations once the case was charged was impermissibly vindictive, and therefore unconstitutional.

Then, from the 6th Circuit, the case finally made its way to the Supreme Court of the United States. By that time, Hayes had long been in prison and the prison warden, Bordenkircher, was the nominal appellee in the caption of the case. The Supreme Court, distinguishing another seminal vindictive prosecution case, Blackledge v. Perry, reversed the 6th Circuit and reinstated Hayes’ life sentence.

Blackledge v. Perry is a famous case known in criminal defense circles as the “upping the ante case”. Blackledge was convicted of a misdemeanor and appealed, which in North Carolina at the time meant he would get a new trial in a higher court. The state retaliated by filing the charge as a felony in the higher court, thus “upping the ante”. The Supreme Court in Blackledge held that to be impermissibly vindictive.

A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a [new trial] in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources. . . . And, if the prosecutor has the means readily at hand to discourage such appeals — by “upping the ante” through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defendants will brave the hazards of a [new] trial.

. . . A person convicted of an offense is entitled to pursue his statutory right to a trial . . ., without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.

Alas, the Supreme Court in Bordenkircher v. Hayes did not think the same logic in Blackledge controlled the day. In a 5-4 decision, Potter Stewart held that the practice engaged in by the Hayes prosecutor was just fine. In distinguishing Blackledge, Justice Stewart wrote:

In those cases the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation “very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.”

By now, it should go without saying that Justice Stewart’s view of a criminal defendant having “relatively equal bargaining power” with the prosecution is a sick and demented joke. Nothing could be further from the truth. But, from that time on, the power of prosecutors to add charges as a bludgeon against criminal defendants has been unfettered and increasingly problematic.

And so we come to the unfortunate case of Aaron Swartz. You can probably already see the Bordenkircher problem in the Swartz case. There is, however, another related problem in Swartz – overcharging. Overcharging is the initial charging by a prosecutor of multiple counts where only one charge is called for, or tacking on extra charges that are beyond what the evidence calls for, all in an effort to coerce the defendant to quickly accept a plea. It is a corollary, but distinct, practice that goes hand in hand with Bordenkircher leveraging of charges. Both are excessive and vindictive leveraging of criminal defendants to force a plea (or cooperation as a snitch), and both are present in spades in the prosecution of Aaron Swartz by Carmen Ortiz and the US Attorney’s Office for the District of Massachusetts.

Initially, upon arrest at MIT, Aaron Swartz was first charged in the local Middlesex/Cambridge state court. Which was somewhat notable and interesting since the arresting officer was actually Special Agent Michael Pickett of the United States Secret Service, who was working with the Boston area located New England Electronic Crimes Task Force. The Task Force had a well established reputation for working with the D-Mass US Attorney’s Office and FBI. So, despite an arrest by a federal agent, working a federal task force, the charge was in local court. That was January 7, 2011.

Then came the first significant upping of the ante against Aaron Swartz with the filing of the initial federal indictment on four counts with a request for forfeiture of property on July 14, 2011, over six months after his arrest and filing of local charges. What did Aaron Swartz do in the time between his arrest and initial charges to the federal indictment to earn the increase in seriousness of the charges against him? Nothing, he simply failed to roll over.

You would think the United States Department of Justice might have exercised enough vindictiveness against the 26 year old Swartz. But, no, there was more in the offing. Much more. Again, Aaron Swartz did not roll over. Swartz had a benefit than very few caught up in the American justice system do, he had money and he had powerful friends and supporters. He wouldn’t roll.

Aaron Swartz and his lawyers relentlessly tried to negotiate a fair plea – probation and no incarceration – for the piddly level of conduct that was actually involved, and they were relentlessly rebuffed by the DOJ. What happened next? The US Attorney’s Office for the District of Massachusetts, led by Carmen Ortiz (with undoubtedly some help from DOJ Main), decided to really put the thumb on Mr. Swartz.

A superseding indictment to further terrify Swartz was filed on September 12, 2012 charging an outrageously puffed up thirteen felony counts, along with the forfeiture demand. Four months later Aaron Swartz was gone.

Aaron Swartz was overcharged right out of the gate in the first federal indictment, which also constituted upping the ante from the state charges. Then the overcharging and upping of the ante went nuclear in the superseding indictment. It was unnecessary, oppressive and unreasonable. It was, and is, the mark of a Department of Justice, and justice system, run amok. Both a Bordenkircher and an overcharging nightmare writ large and public.

Aaron Swartz is tragically gone far too young, but he left us so much in his time. And one of those things is the public exposure this case has brought, and the manner in which it has exposed the ugly underbelly of the American criminal justice system and its reliance on an oppressive and unbalanced system of plea negotiation.

Kevin Cullen, in a Boston Globe op-ed, in quoting Mr. Swartz’s lawyer Elliot Peters, put it succinctly:

Elliot Peters, the San Francisco lawyer who took the case over from Weinberg last fall, could not persuade prosecutors to drop their demand that Swartz plead guilty to 13 felonies and spend six months in prison. Peters was preparing to go to trial and was confident of prevailing.

But the prospects weighed heavily on Swartz.

“There was such rigidity with the people we were dealing with,” Peters said. “I couldn’t find anyone in that office to talk about proportionality and humanity. It was driven by a desire to turn this into a significant case, so that some prosecutor could put it in his portfolio.”

Proportionality and humanity are excellent words that are part and parcel of what is supposed to be “prosecutorial discretion”. As the courts in Bordenkircher and Blackledge noted, the criminal justice system, from local to federal, runs on plea bargaining. But contrary to what Potter Stewart said in Bordenkircher, the power of the defendant is NOT “relatively equal” to that of the prosecution.

The system, and the wielding of power by the government is out of balance, and out of control, as even prominent former federal judges are noting. There are any number of reasons prosecutors so abuse their power. Sometimes it is the desire to notch the big win, always it is a self desire to maintain their personal “conviction record” necessary for promotion, and sometimes it is to force a defendant into cooperation and snitching on other potential defendants and cases. All can be appropriate concerns for a prosecutor, but not without proportionality, humanity and discretion.

Radley Balko penned an excellent discussion of many of the different facets of the immense power, and abuse of power, of the prosecutor:

Prosecutors have enormous power. Even investigations that don’t result in any charges can ruin lives, ruin reputations, and drive their targets into bankruptcy. It has become an overtly political position — in general, but particularly at the federal level. If a prosecutor wants to ruin your life, he or she can. Even if you’ve done nothing wrong, there isn’t a whole lot you can do about it.

I highly recommend reading Balko’s piece in full as there is much depth there that goes beyond what there is space for in the instant post.

High profile cases like that of Aaron Swartz have brought a new light on abuse of prosecutorial power. Another example I feel compelled to mention is that of famed Hollywood director John McTiernan that was put on display last month in one of the last big articles by a friend to this blog, the late Michael Hastings. But while the famous cases like Swartz and McTiernan bring needed exposure, the root problem plagues and rots the entire system. Most defendants are at a far greater disadvantage than those who are wealthy and well known.

Former federal prosecutor and current criminal defense attorney Kenneth White, on his Popehat blog, gave a passionate and troubling description of the bigger picture in our criminal justice system:

People think the system failed or abused or singled out Aaron Swartz. This is the system, dammit, and if you think that Aaron Swartz faced what he did because he’s a hacker and the government has it out for hackers, then I’m here to tell you that you’re full of shit. Aaron Swartz had a great, well-funded defense team and a healthy support system. Most people don’t. If you read this blog, you know the types of things the system does to people, including people with far less ability to fight back. The system sends sick people to their death in a system that can’t care for them because they smoked weed. The system denies its prisoners medical care until they have to have their genitals amputated in a fruitless effort to delay an early death from cancer. The system sticks people into cells and very literally forgets them until they’ve spent a few days drinking their own urine. The system strives and strains to execute people based solely on the word of serial perjurers — serial perjurers whose record of perjury they have concealed from the defense. The system prizes junk science so long as that junk science supports its allegations. The system treats invocation of constitutional rights as evidence of guilt. The system reacts with petulant fury to being questioned. The system detects and punishes law enforcement and prosecutorial misconduct so rarely that bad actors are hardly ever subjected to real consequences.

These things happen every day to people less photogenic, talented, and charismatic than Aaron Swartz.

If the Aaron Swartz case has taught us anything, it is that as a nation we desperately need to have a discussion and recalibration on prosecutorial discretion, proportionality and humanity in our criminal justice system. The “system” is not about “them”, it is about us and who we are as a people. It is long past time to fix the system.

64 replies
  1. orionATL says:

    this is a very, very useful informative post, bmaz.

    it is also very passionate in the right way.

    prosecutorial overreach is something that bothers me greatly.

    sometimes i spend free time dreaming up a list of limitations on prosecutors.

    i would start with the requirement there be a fixed charge with fixed penalty (allowing judicial disgression) that cannot change without significant new information.

    i would create severe penalties, specifically, nullification of charges against the defendant up to disbarrment for withholding of info from defense attorneys.

    i would hold the prosecutor personally liable in the future for any conviction overturned on evidence, e.g., genetic evidence.

    i would hold the prosecutor and team responsiblefor validating with extreme confidence the testimony of any law enforcement personnel ( the lying cop problem).

    the prosecutor would be responsible for seeing that, upon conviction, that the conditions of imprisonment agreed to in any agreement are kept by the jailers and jailer behavior audited by an independent otganization.

    prosecutor should not be allowed to bargain with a potential witness for a reduced sentence. with respect to the truth of testimony given at trial, this conduct is egregious in the extreme.

    prosecutor should be held responsible for the accuracy of testimony of witnesses he calls. subsequent verified false testimony by a prosecutor’s witness should be grounds for dismissal.

    some recent non-national security cases media attention to this matters indicates its breadth in society. prosecutorial overreach and misconduct is a widespread plague in this society:




  2. Jeff Kaye says:

    Excellent post, bmaz. Really puts the sad, outrageous Swartz case into the hideous perspective of what currently, and scandalously, passes for “Justice”.

  3. JThomason says:

    BMAZ, what a profound, well wrought and pointed post this one is to addressing the notions of limited government. Here’s to you guys having a great panel discussion tomorrow!

    One could might even say to the idea of “self-government.”

  4. earlofhuntingdon says:

    Indeed, something is rotten in the state of Denmark. Doing nothing about it will make it worse, while the patrons and sponsors of that system grow in power and twist the law even more in their favor.

    Many thanks, bmaz. Best of luck at Netroots.

  5. earlofhuntingdon says:

    Should I be surprised the SJ Mercury’s article about Netroots was acidically tongue-in-cheek? Whatever. As if word-of-mouth networking, passing of business cards and “plotting victory” were foreign behaviors to the plethora of “committees” inside the Beltway that claim to protect everything from the president to democracy in Iraq to the freedom to drill, baby drill. The Mercury must think that political climates are shaped by whimsy and happenstance rather than energetic, intensely focused, consensus-building.

    Best of luck. Say hi to all those folks in baseball caps, dark glasses and darker SUV’s taking up all the parking spaces between the hotel and the airport. And when you look up at the dreamin’ California sky, smile for the candid cameras. Cheers.

  6. Adam Colligan says:

    I think much of the concern on this issue is not being directed at the best targets.

    Yes, the culture of prosecutors — their priorities and understanding of their own integrity — should be improved and probably can be improved even within the current structure.

    But as so many of the linked authors point out, the current prosecutorial culture is arising from incentives, and those incentives are structural. Good prosecutorial discretion will always be difficult to find because it essentially consists of someone who is rewarded by voters or politicians as an adversary being asked to take on a function of a neutral arbiter. When you take away that reward system, such as when prosecutors are installed in a DoJ bureaucracy and prized for not rocking the boat, you can get a pathetic lack of prosecutorial aggression such as we have seen with money laundering, pharma fraud, etc.

    So what we should really ask ourselves, rather than “how do we tell prosecutors not to be evil?”, are four basic questions:

    1) How formalized should the test be for whether an offense, if technically provable, is fair or right to charge? The UK Crown Prosecution Service has a detailed test to use; you can read it at http://www.cps.gov.uk/publications/code_for_crown_prosecutors/codetest.html . But remember that removing discretion through the use of such guidelines can also constrain the use of discretion in cases where we wish there had been more leeway.

    2) Who should apply charging discretion, however formal or informal it is made in (1)? Prosecutors? Grand jurors? Trial judges? Petit jurors? All of them?

    3) How should the duties and incentives of the party chosen in (2) be changed in order to accommodate this duty? Prosecutors are currently rewarded for winning, not balancing. Grand jurors are currently treated as technocrats and not arbiters of public or moral interest. Trial judges are not currently empowered to throw out charges because charging them is wrong rather than incorrect. And nullification by petit jurors is a terrible minefield that’s generally bad for the rule of law and not set up for such decisions.

    4) Should we reduce the extent to which charging decisions actually determine the level of punishment a person receives? One thing that Article III courts might do well to learn from courts martial is the concept of proving a charge with an outcome of “no punishment”. If judges, jurors, or some combination of the two had a much freer hand in determining sentencing — all the way down to zero for any or all counts — then the power leveraged by prosecutors cynically piling up the charge sheet would be strongly mitigated.

    Taking action on this last point would, however, require us not only to gut many aspects of sentencing guidelines that are beneficial for the consistent rule of law but also to reform broad aspects of our culture more generally. If “a felony conviction” carries with it all manner of formal and informal penalties automatically, then getting rid of automatic jail time would not solve the problem.

    At the risk of over-merging the two current topics of the week, I think this kind of discussion is very relevant to the Snowden case. Why should we necessarily have to wear ourselves out trying to conjure up some even more convoluted statutory change that would make doing what he did “legal”? Perhaps instead we should consider having a justice system that could have prosecutors be allowed to act like prosecutors and courts allowed to act like courts — charging and finding his actions to be at odds with a criminal statute — but also finding it unjust or outside the public interest to impose a penalty for those actions.

  7. C says:

    Excelllent Excellent post Bmaz. To anyone interested in this I highly recommend ProPublica’s recent coverage of the issue as well: http://www.propublica.org/series/out-of-order They’ve done a great deal to highlight the disturbing ways in which “the system” will often protect ‘their own’ against actual accountability until it is far too late.

  8. Peterr says:

    This is a fascinating post, bmaz.

    A couple of thoughts, with a question or two along the way . . .

    (1) The decision to file the first charges in state court strike me (at this point) as a means with which to hold Swartz and prevent him from engaging in further hacking. When the feds, six months later, filed federal charges, is this truly upping the ante in the eyes of the law? By shifting from state to federal, it strikes me that this might be seen as separate charging decisions by separate legal entities. According to this line of thinking, since the feds didn’t file the initial charges, they could not be said to be upping the ante — this was their first bite at the apple. The state prosecutor made one decision, and the federal prosecutor made another.

    Or so goes the theory.

    (2) The fact that a USSS agent was the initial arresting officer mitigates against this kind of separate charging decisions. Clearly, the locals and the feds were working together to investigate, and it only makes sense that they were similarly cooperating on the prosecution end as well.

    (3) The six month time lag before the first federal charges were filed could be explained as the feds saying “after Swartz was arrested and we had the leisure to dig more deeply into things, we discovered much more criminal conduct than was earlier known, so filing our charges was not an attempt to put additional pressure on the defendant, but our recognition that his criminal behavior was worse than initially understood.”

    Presumably a defense lawyer would laugh loudly at this attempt at an explanation, and then attempt (via discovery) to probe the timeline of the investigation and the decision to prosecute. Who decided what, and when? Who talked to whom? But how much would they be allowed to look at? Could they have asked for phone logs of calls between the feds and local prosecutors? Emails/memos/notes? Could they call the local prosecutor as a witness in the federal court as part of a pre-trial effort to get the heavier charges thrown out? “Your honor, the defense believes that the federal prosecutors improperly attempted to coerce a confession/deal by triangulating with the local prosecutors, and we would like to call local DA X to testify about what charging discussions were held between X’s office and the govt prosecution team at the federal level.”

    Any chance that a judge would have bought that argument, or even allowed it to be heard?

  9. bmaz says:

    Hi everybody! Currently at lunch with Rosalind, ripping it up and having a ball. Marcy is off goofing off somewhere and Jim White have some kind of hotel bonus points to where Grecian Goddesses drop grapes in his mouth while others fan him with palm fronds. Some weird term for it, “concierge service” or something.

    @Peterr: 1) You would think that, but Aaron was bonded out nearly immediately on the spot, so there was no holding and the arrest WAS by the federal task force guy who had been involved for a bit in the investigation. So,…..

    2) See above.

    3) That is not really my understanding of what happened, but maybe. There was a range of significant motions pending when Swartz dies; we will never know how the litigation would have turned out.

  10. orionATL says:


    “… (3) The six month time lag before the first federal charges were filed could be explained as the feds saying “after Swartz was arrested and we had the leisure to dig more deeply into things, we discovered much more criminal conduct than was earlier known, so filing our charges was not an attempt to put additional pressure on the defendant, but our recognition that his criminal behavior was worse than initially understood…”


    we had time to look up and analyse all his calls and e-mails from nsa electronic spying records.

  11. omphaloscepsis says:

    This one has a happier ending only in that the accused survived, and after serving time, is still optimistic.


    BILL MOYERS: So when did you know for sure that you were going to be convicted?

    TIM DECHRISTOPHER: During the jury selection of the trial. That was what really did it. There was a moment during the jury selection we had this huge jury pool because it was a high profile case. And there was a moment where the prosecution and the judge found out that most of that jury pool had gotten a pamphlet before they came in on the first day from the Fully Informed Jurors Association. And it was a pamphlet that didn’t say anything about my case, but it talked about jury’s rights. It talked about why we have juries. And it, you know, quoted the founders of the country on juries being the conscience of the community. And the prosecution flipped out over this. It was the only time I saw the prosecutor completely lose his cool during the whole process. And we went into the judge’s chambers and the prosecutor was screaming and saying, “We should have a mistrial here.” And wanted to just throw the whole thing out.

    BILL MOYERS: Because of this pamphlet that were—

    TIM DECHRISTOPHER: Right. Right. I mean, the prosecutor was almost spitting when he was reading from this and saying, “This notion of voting your conscience it’s out in space.” And he was terrified. He was, he was really scared of what was on that pamphlet. And then rather than get rid of the whole jury pool, the judge called the jurors in one at a time to his chambers. And I was—

    BILL MOYERS: Each one individually?


    BILL MOYERS: Privately?

    TIM DECHRISTOPHER: Yeah. And my legal team and I were on one side of the table. The prosecution was on the other side. The judge was at the head of the table and there was one juror at a time at the other end. And the judge would say, “You understand it’s not your job to decide what’s right or wrong here. Your job is to listen to what I say the law says, and you have to enforce it, even if you think it’s morally wrong. Can you do that? Can you follow my instructions, even if you think they’re morally wrong?”

    And unless they said yes, they weren’t on the jury. And I was sitting in the seat closest to the juror. And I watched one person after another say, “Yes, your Honor, I’ll do whatever you tell me to do, even if I think it’s morally wrong.” And they meant it. And that’s when I knew that I was going to be convicted.


    TIM DECHRISTOPHER: And that’s been part of the evolution of our legal system over the past 200 years, as we’ve evolved from a people who set up a government afraid of the power of government, afraid of the concentration of power and wanting to keep power in the hands of people. And now we have a government that wants to concentrate as much power as they can and is afraid of the people.

    You know, that’s been the huge shift that we’ve had over that over the course of those centuries. And we’ve seen an extreme minimization of the role of the jury and a restriction on the right to a jury. You know, we have hardly any jury trials anymore. Hardly any of the people that I was locked up with in prison had gone through jury trials, because they’re pressured into plea bargains. And it’s just taken for granted by everyone in our legal system that defense attorneys, judges, prosecutors, that defendants will be punished if they exercise their right to a jury trial.

    You know, the first thing a public defender will tell one of their defendants is, “You know, if you try to take this to trial, you’ll get 30 years. You’ll get 40. You know, you need to make a plea bargain so you just get ten or 15.” And that’s, you know, considered a good deal. And if you’re punished for exercising a right, then it’s not a right. So essentially the right to a jury trial no longer exists.

    BILL MOYERS: So you’re saying that the jury that convicted you and sent you to prison failed to act as “The conscience of the community”?

    TIM DECHRISTOPHER: Well, and there was a tremendous amount of pressure on them to do that. You know, I mean, these are people who have no experience who have, you know, probably never been on jury duty before because it’s a rare thing. Even though we’re locking up unprecedented numbers of people, we have very few jury trials. So they don’t have that kind of experience.

    And they come into this huge courthouse, go through two different metal detectors and security screenings, come into this, you know, majestic courtroom, with the judge sitting up above them, speaking to them in this very patriarchal kind of way. And with all this authority behind them and saying, “It’s not your job to do what’s right or wrong.” And people believed that. And, you know, watching that happen, it, I’d say it was the first time I really understood how some of the great atrocities in history could happen, where you’d have an entire population that, you know, plays out the plans of a tyrannical dictator, how things like genocide could happen when people are willing to let go of their own moral agency and say, “Well, it’s not my job to decide what’s right or wrong.”


    BILL MOYERS: What’s next for you?

    TIM DECHRISTOPHER: In the fall I’ll be going to Harvard Divinity School to study to become a Unitarian minister.

    BILL MOYERS: Not law school with your concern about juries and the founding fathers and civil disobedience.

    TIM DECHRISTOPHER: No, because I think a lot of what we’re facing is really spiritual struggles. I mean, you know, as I was saying I think we have enough people onboard, but not enough people who really have faith in their own power to make a difference. And that to me is an internal struggle, something that’s more on a spiritual level. And…

    BILL MOYERS: Take me a little further.

    TIM DECHRISTOPHER: –and the point, well, the–

    BILL MOYERS: What do you mean a spiritual?

    TIM DECHRISTOPHER: You know, the point where I full decided it’s something that I’ve been considering for a while, but the point that I fully decided that I was going to become a minister or go to divinity school was the same point that I mentioned earlier was when I knew that I was going to be convicted. That point when I watched one juror after another say yes, I’ll do whatever you tell me to do even if I think it’s morally wrong that to me was a huge turning point. Because I saw two things in that situation where he was telling people they had to let go of their own moral authority. I saw how willing people were to let go of their moral authority. But at the same time I saw the vulnerability of the prosecutor.

    And you know, he was a US attorney, he was the United States attorney, he represents the United States of America, he’s got the whole power of the United States government behind him and he was terrified. He felt vulnerable to the notion of citizens using their conscience in exercising their civic duties.

  12. Jim White says:

    @bmaz Actually, they already shut down that service since all good working folks should be headed home to their families this late on a Friday. I grabbed a little rest, some juice for my phone and a couple of innings of the College World Series. Will head back down for the National Security Caucus session in a few.

  13. P J Evans says:

    Short form: espionage, theft, and conversion of government property.

    They may be able to prove those, but I think they should have to do it in open court and without using ‘state secrets’ as a way of avoiding embarrassment.

  14. john francis lee says:

    Back when I believed n the tooth fairy I believed the courts were our bulwark against the other two seats of … oppression, it works out. But they’re not. They’re just more crazed dentists doing experiments in the tolerance of pain.

    We really need to take things into our own hands. There is no one “above” us who is “on our side”. They are all protecting their turf and will kill as many of us as they feel they need to in order to beat us down. They’re killing Lynne Stewart as we speak.

    Life After Chavez

    Senor Carlos was angry, agitated:

    “Look, here, we are having a real war; a war that has been already taking place for many years. Local capitalists do not just want to make profits; they want to make enormous earnings, by stripping poor people alive. They were doing it freely and shamelessly before Chavez, and then, for years, they had been full of hate for him, because he was on our side, defending us. Capitalists here are bandits, they are thieves!”

    “Even now, there are all those private companies, like Polar, that are plotting against us, against the poor. They buy things for 2 and sell for 16. The state sells cooking oil for 4, rice for 2. So what do our capitalists do? The same shit as they did to Chile, to Allende, before 1973 coup. They began creating ‘deficit’! They control transportation and distribution and their goal is to make sure that there is no food in the villages and towns, so people get angry, tired, and consequently vote this government out. And the United States is fully behind all this!”

    “But they will not be allowed to come back!” shouts Senora Clara. She is looking at me, straight into my eyes, smiling. “Because we will fight for this government, which is the government of the poor, of the real people. Chavez gave me back my own country, ‘mi patria’. He also gave me hope. I was homeless, desperate before. Now I am alive!”

    Senor Carlos arrives at the punch line:

    “Do you know why they – the rich – hate us so much? Because now we can read, we understand what is really happening around us. We vote for and we read and understand our own Constitution. And Chavez? They detested his determination to allow us to vote for the real candidates, for the candidates who were really ready to represent us. And they hated him for teaching us how to read and how to understand, and how to think! He gave his life for us! They killed him. And now they are trying to destroy Maduro.”

    We have and will have no Chavez. We have to teach ourselves to read the writing on the wall, to understand our own Constitution, to vote for our own real candidates, to take back our power to recall the entire, utterly corrupt political class.

  15. orionATL says:

    it has occurred to me more than once in the last 2-3 weeks that edward snowden and aaron swartz have a lot in common. both are among the finest youth of our society.

    both have demonstrable high levels of analytical/logical ability.

    as importantantly, both have demonstrated a very high level of moral intelligence.

    both have demonstrated extraordinary personal courage.

    both have exibited rebellious unacceptance of political and economic authoritarianism.

    and each in his own way has demonstrated political asuteness and political leadership.

    they share these talents and concerns, most importantly moral intelligence, with bradley manning, whom our president allowed the dod to torture at quantico marine base until there was a domestic and international uprising at his hideous mistreatment.

    one would think that these two young men (and manning) would have been recognized as among the “best and brightest ” of this society’s youth and supported and encoraged accordingly.

    it speaks of the intolerable and destructive averice for power thru secrecy and deceit of pseudo-leaders like general clapper, general alexander, president obama, fbi director mueller, ag eric holder, senator feinstein, congr rogers and ruppersburger, and others of our leaders,

    that they exhibit no qualms at all about destroying either of these superb young talents, and in fact have destroyed one already.

    the ruthlessness, amorality, and supremely authoritarian intolerance of dissent of the president and his national security and legal advisers will stain the history of their reigns forever.

  16. greengiant says:

    @orionATL: Since no one has dropped a dime on say Jamie Dimon, I would say that the judicial, intelligence and military branch of the executive are totally devoid of any moral individuals.

  17. CTuttle says:

    Aloha y’all…! Another shoe dropped… FISA Court: Those “Exceptions” To Allow NSA US Surveillance Are Constitutional

    …A few hours ago the Guardian released another new document, an August, 2010 order signed by a FISA judge which says that, after certain amendments to older directives,

    the revised NSA, FBI and CIA minimization procedures submitted with the amendment “are consistent with the requirements of [50 U.S.C. Ia(e)] and with the fourth amendment to the Constitution of the United States,

    and that,

    accordingly, it is hereby ORDERED, pursuant to 50 U.S.C. 1881a(i)(3)(A), that such certification, as amended, and the use of such procedures are approved.

    Such is the judgment from on high, people. What say ye?

    Yes, what sayeth ye…? ;-)

  18. Peterr says:

    @CTuttle: If the FISA Court can hear cases without challenge from outside the government, then it only seems fair that ordinary citizens ought to be able to bring suit against the government in FISA-type cases without having to prove standing.

    If FISA can exclude one party to a legal dispute, then potential targets of FISA overreach ought to be able to file their claims against the government and the underlying law without having to prove standing. The govt, in going the FISA route, is saying that they have to do this for national security reasons. OK, says me — then you forfeit the ordinary requirement that those bringing suit against you have to prove standing. You’ve declared EVERYONE to be a potential target, which in essence means everyone has standing.


    I know, I know . . . and I want a pony.

  19. orionATL says:

    as for aaron swartz in particular among these three muskateers,

    his real crime may have been that he helped defeat a bill before congress that would have enhanced nsa spying.

    if true, and i don’t know that it is, swartz would be a victim of u.s. government prosecution for successfully opposing a government spying program of which he was probably unaware.

  20. Ralph Adam Fine says:

    Nice piece. A judge for more than 30 years, I’ve been slamming plea bargaining for, it seems, forever. Take a look at my “Escape of the Guilty & Extortion of the Innocent,” which I’ve just republished on Kindle. See link below. As I point out, everyone’s belief that the “system” needs it is but a myth.

    Ralph Adam Fine
    Judge, Wisconsin Court of Appeals


  21. Chetnolian says:

    Hi BMAZ I’m back. Excellent post.

    But it is a sad time to be alive is it not? Here across the pond our Government, including people who sadly i voted for, have decided to truncate civil legal aid and replace it with defenders chosen by the Government before trial on the basis of a competition as to who will offer the lowest price!!!

  22. bmaz says:

    @Chetnolian: Chetnolian!! Was wondering when you would rejoin. For those that don’t know, Chetnolian was in Phoenix a while back and we had an absolutely wonderful lunch and couple of pints. He is a fantastic chap.

    As to the goings on on that side of the pond, bleech, that is terrible. About what we are doing to our indigent defense at this point too.

  23. bmaz says:

    Hi folks. Because this post is an effective lead in for the panel this afternoon, I have placed it on top. I did, however, put up another new chat and trash post just below, with some pictures from last night. We will try to get more pictures later maybe. But feel free to visit and critique there.

    The panel is at 3:00 pm PST today, that is 6 pm EST. I will try to ascertain the answer to the live streaming question, and if there is any good answer, will post the link here in comments.

  24. JThomason says:

    Yo, time gets to the east coast first. 3 PM PDT is 6 PM EDT.

    Edit: I am just sayin: stay off the Ass Kicker til after the panel.

  25. JThomason says:

    @bmaz: So, I guess its like I always say, never attribute to beer what can be accounted for by a vague longing.

    Really appreciate your participation on the panel. It sounds like the kind of thing that needs to be happening more and more.

  26. Chetnolian says:

    @bmaz: And we have a story broken in the Guardian today which nails the lie that “You don’t have to be worried about surveillance if you are not involved in TERROR!!!”

    Did you follow the “McLibel” trial here a few years back? In case you didn’t Ronald tried and failed to ruin a couple of harmless London radicals by suing them over several years for libel over a tiny circulation leaflet. McDonalds won but thanks to pro bono lawyers they fought the case all the way and though Big Mac eventually won on points, they never collected because at that time they had suffered so much reputational damage here they didn’t dare.Well, turns out a cop being paid to infiltrate their group(and sleep with unsuspecting female members)actually helped to write the leaflet that so offended the guardians of the Golden Arches. You couldn’t make it up!

    Have fun in San Jose and don’t drink too much.

  27. Victor A. Fedorov says:

    Replace the justice system with a peaceful assembly where everyone can go aye and nay, and everyone with knowledge or opinion of the case can speak. (That said, what does it say about aaron to kill himself and not take the three or four month plea bargain?) Or, and please tell me if you know or suspect, was he suicided, killed and made to look like suicide? Because that last makes a little sense too/

  28. bmaz says:

    @Victor A. Fedorov: The Constitution works just fine, thanks. The problem is self interested and intellectually corrupt leaders, and that is a problem in any form of governance.

  29. bmaz says:

    Okay folks, I have checked, and there appears to not be a live stream of the panel. I do assume there will be a videotape for later viewing.

  30. Arbusto says:

    Slightly OT. Just read USofA demanding Hong Kong extradite Snowden.

    “If Hong Kong doesn’t act soon, it will complicate our bilateral relations and raise questions about Hong Kong’s commitment to the rule of law,” said a senior Obama administration official [giggling quietly into his palm]

  31. thatvisionthing says:

    @bmaz: Streaming link?

    Thx (yes I do see @27, just queueing(sp?) my request)

    If it’s NOT streaming, please someone record it with their iphone or something, even if it’s just sound? And then post it for us?

  32. thatvisionthing says:

    @omphaloscepsis: @Arbusto:

    re rule of law and the Tim DeChristopher interview (love the long quote), the long quote ended just a tad too soon:

    TIM DECHRISTOPHER: …And you know, he was a US attorney, he was the United States attorney, he represents the United States of America, he’s got the whole power of the United States government behind him and he was terrified. He felt vulnerable to the notion of citizens using their conscience in exercising their civic duties.

    It went on:

    BILL MOYERS: In fairness to him I read his statement. He said, he said respect for the law is the bedrock of the civilized society.

    TIM DECHRISTOPHER: Yeah, but the bedrock of the rule of law is the conscience of the community and the values of our citizenry. And I think that that’s where he missed it, you know. Because at the same time he said the rule of law’s the bedrock of our society, not acts of civil disobedience. He failed to understand that acts of civil disobedience are what have shaped the rule of law in this country and how it’s been acts of civil disobedience that have made the rule of law line up with the values of our people.

    Me: Jury jury jury

    First Supreme Court Chief Justice instructions to the JURY — the first Supreme Court sat with a JURY:


    In this case, the first Chief Justice, John Jay, wrote: “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy”.[3]

    Bmaz, re the Bordenkircher and Blackledge decisions and what they did to prosecutorial unchecked imbalance, cf Sparf and informed juries. Wikipedia continues:

    In 1895 in Sparf v. United States, the Court said that courts need not inform jurors of their de facto right of juror nullification although jurors’ inherent right to judge the law remains unchallenged.

    Who even knows anymore that juries are supposed to judge the law too? Yet that’s what jury meant to the founding fathers, and THAT’S the bedrock of our law… perfectly consistent… We the People. Nobody immune, nobody above the law, everybody sits together equally… next thing you know reason might happen instead of ever grotesquer witch hunts. In America.

  33. Peterr says:

    @Arbusto: No, the SAO was not giggling here — she/he was threatening. A translation of the SAOs diplo-speak would be this: “Nice little banking center you’ve got here. It’d be a shame if anything were to happen to it.”

    The only thing more threatening would be if the SAO said this with his/her name attached to it.

  34. thatvisionthing says:

    I gather that it’s NOT being livestreamed?


    Deja vu… Last year the panel not streamed was:


    Foreclosure Fraud: The Most Dangerous Panel in the World
    Posted on June 8, 2012 by emptywheel

    They’ve scheduled DDay’s Netroots Nation foreclosure fraud panel–with Lynn Szymoniak, Malcom Chu, and Neil Barofsky–in a room with no streaming, and President Obama is holding a press conference to conflict with it. Which suggests this is the most dangerous panel in the world.

    So I’m gonna liveblog it.

    Bmaz? (hopefully?)

  35. orionATL says:

    the obama boys are beginning to act a little desperate and more than a little pushy. they must guess worse is to come.

    the guardian and wapo will be the next targets.

    although it is most likely to end undramatically, the conflict the u.s. is creating by demanding h.k./china handover – not extradict if i’m understanding correctly – snowden,

    could end in a economic and computer-network conflagration, depending upon the chinese reaction.

  36. greenbird says:

    checked in earlier at work, home now, wanted to join the crowd saying “thanks, bmaz: terrific post.” also great comment thread. big, slow teardrops fall as my eyes fill with streams of truth. what an enormous stain we see caused by twisting democracies.

  37. Hugh says:

    As Greenwald among others has said, we have a two-tiered legal system. Those with power, wealth, and connections can expect to avoid even investigation for most crimes and for the legal system to tread lightly even when an indictment is made. For the rest of us, the justice system is something out of Dickens, or Kafka.

    It is important to name names. So we should remember Carmen Ortiz and Stephen Heymann the prosecutors involved in the abusive, vindictive, and excessive prosecution of Aaron Swartz. We should recognize that this is not about the law but about how our elites exercise social control over us. We should understand that whether we are talking NSA spying or malicious prosecutions, our elites are not doing these things to protect us but to protect themselves from us.

  38. orionATL says:


    only one thing to say in response:

    RIGHT ON!!!

    it ain’t just the black americans anymore,

    or the hispanics,

    we’re all targets now,

    every last one of us.

    and we owe this happy state of affairs to the reign of the emperor obama and his courtiers.

  39. JThomason says:

    The DeChristopher interview and what was said about disavowing moral conviction is particularly interesting in the light of components in the UCMJ around the traditional understanding of duty to disobey unlawful orders. This duty devolves to soldiers in the stress of military exigencies the necessity of critical time bound determinations concerning the Constitutionality of particular demands. Yet in what DeChristopher describes jurors are compelled to disavow this capacity in a far more deliberative context. To the extent DeChritopher makes an accurate description he shines a light on an odd state.

    Where will we find the conscience of the citizenry to make critical decisions based on the traditional bonds of our Country in understanding our Constitutional habits in relation to compulsion. Will it merely be in the perception bias of the facts? Yet the genesis of our abstracted understandings of who we are derives of the principles of the experience of those who have preceded us. No doubt there are those who would deprive of us of this heritage in the name of a higher understanding. As stated before the naming of the thing that troubles us is the first task. If we can name this latter gesture so that it might be addressed for what it is, the cause of the legacy of clarity might yet be advanced. There’s the rub in our media driven Babel.

  40. P J Evans says:

    I read about it at the Great Orange Satan. One heckler refused to be quiet, and eventually was removed. Nancy got booed some for one of her responses, but otherwise it wasn’t a big ruckus.

    As for O, if he wants progressives to support him, he’s going to have to do more than provide lip service.

  41. phred says:

    @bmaz: Too bad things calmed down. It would have been good to put Pelosi and all other Dems on notice that they stand to lose public support over this.

    That said, bmaz, I want to compliment you on an excellent post. This is why I like to come to the Wheelhouse, to learn about legal precedents that I have had no inkling of previously, that serve to corrupt our system of justice from that spelled out in the constitution. It’s always illuminating hanging out here : )

    Thanks also to the commenters for a great thread. The DeChristopher interview is alarming. Had I been one of the potential jurors I would likely have been too shocked to object, but nonetheless, I wish one of them had read the riot act to the judge, explaining to him and the prosecutor just exactly why we have jury trials in the first place. I am appalled by the hubris of the judge and his contempt for the rule of law and the final judgment of one’s peers, NOT those of the court officials. This is fucking grade school civics. What is it precisely that the judge and prosecutor fail to understand?!?

  42. phred says:

    P.S. bmaz, hope you and the other wheelies have a great time at NN. Ummm, I would suggest however, staying away from pink drinks, tiny umbrellas, and plastic cocktail onion swords ; )

  43. P J Evans says:

    As I understood it, what she was booed about was her support for chained CPI and COLA increases. Which is fair – she ought to know better by now.

  44. phred says:

    @P J Evans: At this point, what is there NOT to boo her about? The more booing the better.

    Edited to add this from the Guardian:
    “On Saturday House Democratic leader Nancy Pelosi was booed by a crowd during a speech at activist meeting Netroots Nation when she said Snowden had broken the law.”

    From that quote, it sounds like you may be mistaken about the cause of the booing.

    Here is a link to the Guardian article:

  45. Adam Eran says:

    Nicely put. To appreciate the proportion to which this kind of prosecutorial malfeasance has grown, consider the following:

    1. The U.S. has, in absolute and per capita terms, the most prisoners of any nation on earth. That’s 756 per 100,000 of population. Canada, with similar demographics, only incarcerates 111 per 100,000. Crime rates in Canada and the U.S. have differed only insignificantly for the last 40 years, so this isn’t about “preventing crime.”

    2. The bulk of the extra prisoners come from the drug war. It’s 1/7th the cost of incarceration to treat addiction, if we assume only addicts are incarcerated.

    3. More people of color are in prison or under parole board supervision than were slaves in 1850. The odds of getting a longer sentence, or getting sentenced at all are much higher if you are a person of color. And while it’s illegal to discriminate in housing, employment, etc. against those “inferior” races, it’s not illegal to discriminate against felons. Michelle Alexander’s book “The New Jim Crow” explains this in excruciating detail.

    4. Of course people in the Military-Industrial-Media-Prison complex, particularly private prison companies, profit from this situation. The prosecutorial abuses serve these people too, who continue to fund their election, promotion, and lavish retirements.

  46. P J Evans says:

    He did break a law. For good reasons, but still, like Ellsberg, he broke a law. Doesn’t justify booing her for saying it.

  47. pdaly says:

    @P J Evans:

    Maybe Snowden had a judge secretly inform him that his whistleblowing is not a breach of the law–so poof it is legal. Getting secret opinions that contradict the law and make actions is all the rage now. Should be available to anyone.

    Not to mention that the US Constitution pretty much agrees with Snowden’s disapproval of the U S spying on all Americans.

  48. pdaly says:

    re: the US prosecution of Snowden.

    It is ironic that the US DOJ accuses Snowden of “spying” after he informed the world that the US government is spying on its people without warrants.

  49. P J Evans says:

    It’s a lot of fun explaining that surveillance of everyone isn’t legal because 4th Amendment. Some people don’t get it.

  50. thatvisionthing says:

    @P J Evans @54: “He did break a law.” Not until the fat lady sings. Not until the jury says so. See First Chief Justice @38. The jury decides the law – that jury, that time, in that case, but juries in all cases. (“For good reasons…” hmmm.) Before the word jury got corrupted beyond all recognition. If we were going to be constitutional about it. Which Nancy Pelosi ain’t into much:


    From a June 2007 blogger conference call:

    Speaker Pelosi: I made a decision a few years ago, or at least one year ago, that impeachment was something that we could not be successful with and that would take up the time we needed to do some positive things to establish a record of our priorities and their short-comings, and the President is… ya know what I say? The President isn’t worth it… he’s not worth impeaching. We’ve got important work to do…

    Mike Stark: Respectfully, that’s not the question. Respectfully, the question is whether or not the Constitution is worth it.

    Speaker Pelosi: Well, yeah, the Constitution is worth it if you can succeed.

    So when presidents break the law… they have help.

  51. thatvisionthing says:

    @phred: And Huffington Post, with short video clip:


    Nancy Pelosi Booed, Heckled Over Edward Snowden, NSA Comments At Netroots Nation 2013

    As she spoke about the need to “balance” privacy and security, a man stood and yelled, “it’s not a balance, it makes us less safe.” The man continued to decry “secret courts,” and staffers began to escort him from the room.

    Pelosi said it was fine for him to stay, but the man was eventually ejected. On the way out, some members of the audience began to shout at the staffers to “leave him alone.”

    The conversation then shifted to Snowden, who on Friday was charged with espionage over his leaking of classified documents to media outlets.

    Pelosi said that Snowden “did violate the law in terms of releasing those documents,” a remark that elicited boos and yells throughout the ballroom. One man screamed, “You suck!”

    Long video here: http://susiemadrak.com/2013/06/22/pelosi-booed-at-nn-over-snowden/ — comment says:

    lambert strether

    Starts at 43:58. Booing 50:55. You made me listen to this, didn’t you?

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