Showing posts with label prosecutors. Show all posts
Showing posts with label prosecutors. Show all posts

Tuesday, January 15, 2013

Copyright Martyr: RIP Aaron Swartz

Aaron Swartz was somebody who helped code some important pieces of the modern Internet: RSS and Reddit, and, having cashed out at an early age, became an activist for making information public. He put a good deal of his own money into the development of RECAP, for instance. He also launched Demand Progress to help stop the SOPA and PIPA bills in Congress which were copyright protection/anti-piracy bills that would have crippled the Internet.

But when Mr. Swartz downloaded a huge number of JStor documents illegally from MIT's libraries onto a laptop hidden in a closet, the U.S. Justice Department decided to prosecute the copyright violation to the full extent of the law. While Swartz's lawyer attempted to negotiate a plea down to a misdemeanor, the prosecutors insisted on a felony charge with 35 years of prison time and a huge fine. The inflexible attitude of the prosecutors was notable and puzzling to those watching the matter unfold.

Friday, Aaron Swartz hanged himself at his Brooklyn apartment. Friends and family blame not only the prosecutors but also MIT and JStor, which did not push the prosecutors to back off. Many friends and admirers have posted comments and memories. Aaron Swartz was only 26.

Maybe it's time to discuss the attitude about copyright infringement.

Sunday, April 03, 2011

In Praise of Robert Morgenthau

Robert Morgenthau, the legendary former District Attorney for New York County, is the subject of a compelling profile written by Rand Richards Cooper, a fellow Amherst alumnus, in the Winter 2011 issue of the Amherst College alumni magazine. Morgenthau led the District Attorney's office for thirty-four years, retiring in 2009 at the age of ninety. During his tenure, it became one of the most highly regarded prosecutorial offices in the United States, a famous training ground for attorneys, some of whom went on to have distinguished careers in law, politics, and on the bench--Supreme Court Justice Sonia Sotomayor; New York Governor Andrew Cuomo; John F. Kennedy, Jr.; Robert F. Kennedy, Jr.; Eliot Spitzer, former New York Governor; Linda Fairstein, former head of the Sex Crimes Unit and author of crime novels. According to the profile, Morgenthau became "a kind of one-man networking maven."

The profile summarizes Morgenthau's life as follows:

Morgenthau is a figure of tantalizing paradoxes: a reedy patrician who became a gravelly voiced, profane prosecutor; the scion of a wealthy family and graduate of Deerfield, Amherst and Yale who spent his career confronting every variety of urban depravity; a Jew, proud of his heritage, whose loss to Nelson Rockefeller in the 1962 governor’s race was once attributed to his not knowing what a knish was; a self-described “shy” person whose work placed him at the center of New York City’s raucous politics, linked him to some of the most notorious names of 20th-century America—and made him the model for the DA in the long-running TV drama Law & Order.

Morgenthau prosecuted a number of extremely high-profile cases--the murder of John Lennon; the "Subway Vigilante" case; the "Preppie Murder" case; the Central Park jogger case; the BCCI money-laundering case--and was known for his pursuit of white-collar criminals. During his time as District Attorney, Morgenthau also pioneered "major upgrades to prosecuting cases ... from computerization to videotaped confessions and DNA analysis."

He was born to a life of wealth and privilege. His parents were friends of the Roosevelt family, and "as a teenager, [Morgenthau] roasted the first hot dog ever served to the British royal family, during a visit of King George VI to Hyde Park." I wonder what the King had to say about that gastronomic treat! Morgenthau's decision to enter public service was made when the destroyer on which he served as an officer during World War II was sunk by German bombers in April 1944.
In the hours he spent adrift before being rescued, he found himself thinking intensely about what to do with his life if he survived. "I guess I started making promises ... There I was, floating around the Mediterranean--and it sounds kind of corny now, but I decided to devote my life to public service."

The illustration is from a laundatory Village Voice article written at the time of Morgenthau's retirement.

Wednesday, December 29, 2010

Prosecutorial Misconduct--Part 3

USA Today continues its series on prosecutorial misconduct with the latest article, "Prosecutor misconduct lets convicted off easy," published in today's edition. The first two articles highlighted innocent people who went to prison because of prosecutorial misconduct, and pointed out that few prosecutors get into trouble for these offenses.

Part 3 argues that prosecutorial misconduct often results in the guilty being treated with leniency. It tells the story of James Strode, a career criminal who held up a Rite Aid pharmacy in Seattle in November 2006 after his conviction and sentence for bank robbery were wiped out "when an appeals court concluded that the federal prosecutor in charge of Strode's trial had 'crossed the line' by making improper arguments to the jury."

What happened to Strode underscores one of the least recognized consequences of misconduct by Justice Department attorneys in charge of enforcing the nation's laws. Although those abuses have put innocent people in prison, misconduct also has set guilty people free by significantly shortening their prison sentences.

In some cases, they served no additional time. New crimes sometimes followed.

An investigation by USA Today turned up "201 cases since 1997" of prosecutorial misconduct. "Each was so serious that judges overturned convictions, threw out charges or rebuked the prosecutors." Of these 201 cases, 48 of the convicted defendants received lighter sentences than they would have received in the absence of prosecutorial misconduct. "If prosecutors' chief motive for bending the rules is to ensure that guilty people are locked up, their actions often backfire."

Thursday, October 07, 2010

Prosecutorial Misconduct--Part 2

USA Today's series on prosecutorial misconduct has continued with an article discussing whether prosecutors' offices that hid exculpatory evidence should be immune from prosecution. This issue is in the news because of the case--Connick v. Thompson (09-571)--that was argued before the Supreme Court on October 6. "The court's answer could determine the extent to which prosecutors' employers are also shielded if they fail to make sure attorneys comply with their constitutional responsibilities." The Thompson case is a particularly egregious example of prosecutorial misconduct.

John Thompson was convicted of murder and carjacking in New Orleans and sentenced to be executed for the murder.

A month before his execution date, his lawyers discovered that prosecutors had deliberately covered up a police lab report that showed he could not have committed the carjacking. Then they uncovered still more evidence that undermined his murder conviction.
Thompson was released in 2003 after serving eighteen years in prison, including fourteen on death row. Today he runs a non-profit organization in New Orleans, Resurrection After Exoneration, to help other victims of wrongful convictions. Thompson is not suing the individual prosecutors who tried his case; he is suing the district attorney's office, alleging that it "didn't train its attorneys about their legal obligation to turn over evidence that could help defendants prove their innocence." My colleague, Professor Bennett Gershman, who has written extensively about prosecutorial misconduct, is quoted by USA Today:
"The importance of [Thompson's] case is prosecutorial accountability--whether or not violations of constitutional rights make a difference, or whether the prosecutors can just walk away without any accountability, any liability, any punishment, for breaking the law."
Prosecutors around the country will be watching the Thompson case closely.

Monday, September 27, 2010

Prosecutorial Misconduct

USA Today's article entitled "Prosecutors' Conduct Can Tip Justice Scales" makes for upsetting reading. The paper launched an investigation of "201 criminal cases ... in which judges determined that Justice Department prosecutors ... violated laws or ethics rules." The high-profile Duke lacrosse case demonstrated that prosecutors can badly overstep and misstep, but the USA Today investigation shows that the same abuses are rampant in the federal system. The consequences have been serious--"the abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions." One of my colleagues at Pace Law School, Professor Bennett L. Gershman, was interviewed for the USA Today story. He is a former prosecutor himself, having worked for the prestigious Manhattan District Attorney's Office for six years. Professor Gershman has written extensively about prosecutorial misconduct on both the federal and state level, and many of his law review articles are available by hypertext link from his faculty page (linked to above). According to Professor Gershman, the abuses detailed in the article are the "'tip of the iceberg' because many more cases are tainted by misconduct than are found. In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges." The article is accompanied by a compelling videotape that focuses on the case of Nino Lyons, who was incarcerated for nearly three years after a prosecutor failed to disclose exculpatory evidence; he was eventually declared innocent and released, but his life will never be the same. The prosecutor, Bruce Hinshelwood, was ordered to pay $1,111.80 in costs and to attend an ethics workshop, but stayed on the job until 2008 and has since opened his own practice. He was never punished by the Department of Justice or by the Florida Bar.