[AnthonyMouse]

>This is part of the reason so many lawyers on HN having been defending Ms. Ortiz--based on the charges and evidence publicly known, nobody would have expected Swartz to commit suicide because he would likely have prevailed at trial and should have been advised of this by his lawyer.

Having to win at trial still means you have to go to trial. Which means you commit to spending years of your life in a state of terror because you can't be sure of the outcome, you bankrupt yourself and then your friends and family paying for it, and if you win... you don't get back any of your time or money and there is no penalty for the prosecutors.

I have to say, that sounds pretty darn stressful, and that's if you assume you can win.

[mindslight]

Of course if you're just professionally involved, you're not the one that is possibly going to be in a cage for three decades. And if your livelihood not only depends on the existence of these situations, but in fact becomes even more well-compensated as the complexity and therefore stressfulness of them increases, you may even find a way to conjure up justification for the whole charade under some guise of morality and justice, even if for no one other than yourself. And that's a large "part of the reason so many lawyers on HN having been defending Ms. Ortiz".

[rprasad]

My perspective probably differs, since I used to work for the public defender and never lost a jury trial, so I can see how most people would find the situation very stressful.

But I do stand by my point that most defendants do not commit suicide.

[btilly]

You keep on referring back to your purported legal background. And then in threads like http://news.ycombinator.com/item?id=5049530 it becomes abundantly clear that the rules do not actually work like you claim that they do.

Please stop trying to argue from personal authority. Say your piece. Cite claims that could benefit from that.

Now you may think that Ortiz was likely to lose at trial. However Orrin Kerr's analysis did not agree with you. (See http://www.volokh.com/2013/01/14/aaron-swartz-charges/ if you want to be reminded of that analysis.) As far as anyone here knows, you're a random internet poster who has not proven to be very convincing on the law. By contrast Orrin Kerr is a respected law professor who is commenting on his area of specialty. Therefore he's arguing from much stronger authority than you are. (And he backed up what he said with specifics of the legal charges and relevant precedents.)

[tptacek]

Granick strongly disagrees with you. Beating this drum again: as Granick explains it, had Swartz gone to trial and been acquitted of twelve of the thirteen charges he faced --- disproving 92% of the prosecution's case --- not only would the prosecution not lose credibility at sentencing for bringing an overwhelmingly spurious case to trial, but because unproven "relevant behavior" is material during sentencing, the damages alleged in the 12 disproven charges could still be used to ratchet up the sentence!

[krickle]

What the fuck? "For the crime of X and twelve counts of being falsely accused of Y we sentence you to ZZ years of prison." I never thought the legal system was fair, but comments about this case are revealing a whole new level of bullshit beneath the top layer.

[rayiner]

First of all, let me point out that I agree that sentencing is a total cluster f--k.

That being said, the fact that you didn't win on a count doesn't mean that you were "falsely accused." The standard for winning on a count is "beyond a reasonable doubt" or say 95%. The standard for actions being considered in sentencing is "more likely than not" or 50%.

Say the trial proves a 75% probability that you did counts 1-12, and a 98% probability that you did count 13. That means you can't be convicted on 1-12, but because it's more likely than not you really did it, the judge is allowed to consider those counts in determining your sentence, but only up to the maximum for the single count.

The rationale behind this is that the judge is also allowed to consider, in your benefit, things like other peoples' opinions of your character, etc. You don't have to prove beyond a reasonable doubt that, e.g. you're a good husband and father. This cuts both ways--the prosecutor also doesn't have to prove beyond a reasonable doubt that you beat your wife.

Not saying I agree with it, but it has a certain symmetry.

The real problem is that the maximum sentences for any given count are totally ridiculous.

[tptacek]

It's not just that losing 92% of their case doesn't cost the prosecution at sentencing. It's that those charges continue to pay dividends to them, even though they're counterfeited by the actual trial.

It seems like one good inoculation against overcharging would be for damages and facts establishing conduct to be fenced off by which charges succeed and which fail, so that failing to convict on a charge puts part of the sentence at risk, as opposed to filling up some freakish "community chest" of sentencing accelerators.

[mpyne]

Even the Granick analysis you quoted earlier came to "over a year" for the probably guideline calculation, not 35 or 50. And it never talked about additional charges adding to the sentence in the "sentencing" portion.

She did talk about each additional conviction adding to the maximum possible sentence for a plea bargain, but then said that the guideline calculation is still the same.

She linked a PDF of hers, and I tried to read it, but ironically it requires HTTP authentication to some journal archive which I haven't paid for and don't have access to.

I've also tried going through the 2011 Federal sentencing guidelines to confirm what you gleaned from Granick, but to be honest they're too byzantine for me to get through in a few minutes with no training.

I guess what I'm trying to say is that I'm not sure how you got from Granick to what you're talking about here. Perhaps I missed a linked article from the site hosting her original article?

Either way I don't see how it would make sense to credit '# of charges' alone in sentencing as it is well-known that in general the prosecution has to bring all charges it can prove related to the case, if only because of double-jeopardy.