[tptacek]

No, they didn't admit that. An anonymous staffer told the Huffington Post they felt that the prosecution was overcommitted to a token prison sentence and felony convictions to justify the effort they had put into the case, and Swartz' "Guerilla Open Access Manifesto" was used as evidence to establish his intent.

4/5ths of Hacker News believed the day the news about Swartz came out, when we learned about the prison time demand, that this was what was happening. There has been no revelation, unless Taren or one of her peers was at the hearing and learned something different than the Huffington Post.

[ScottBurson]

the prosecution was overcommitted to a token prison sentence and felony convictions to justify the effort they had put into the case

In short: to keep themselves from looking bad.

I wasn't sure, before I read this, that I actually wanted to see Ortiz and Heymann fired. Now I'm starting to think I do. Putting someone in prison just so you don't have to publicly admit that you shouldn't have been prosecuting them in the first place... I can hardly think of a worse reason.

[tptacek]

I commented yesterday when these HuffPo rageview pieces started spooling out: you should listen to the WBUR piece on Ortiz's office:

http://news.ycombinator.com/item?id=5264200

Unlike Mashable or Techdirt, WBUR did actual reporting, talking to multiple defense attorneys that handled Ortiz-managed prosecutions, tracking down judges admonishing Ortiz, even finding people who had recommended Ortiz for the post who have since backed away. The WBUR investigation is packed full of details.

They don't paint a pretty picture! There is good reason to be concerned about Ortiz. There are concerns about the way she manages her office, sets up incentives for AUSAs, oversees cases, and handles transparency. The story they build is of a US Attorney appointment that is simply not working out. It's damning enough that I actually started to reconsider whether Heymann was really the root of the problem; if he'd been reporting to a different US Attorney, things might have worked out differently.

The most disquieting thing Ortiz says in the WBUR show is an offhand comment. "It's an adversarial system" she says, defending her aggressive handling of prosecutions. But while that's true at one level (prosecutors are technically & mechanically adversaries of defense attorneys), it's deeply untrue at the level she seems to mean it on. She comes off as believing that her job is to present the most aggressive possible case for conviction and let the judge & jury sort out the truth. But that's not the prosecutor's role in the US! Prosecutors have discretion over what cases they bring and are required to use it. It's very worrying when a US Attorney implies that it's not their job to deploy that discretion.

[AceJohnny2]

I hate to be the devil's advocate in this case, but how else would an adversarial system work? If you want to see an opposite situation, where the prosecutors have full discretion to the point that courts basically always side with them, look no further than Japan and its 99% conviction rate. http://ideas.repec.org/p/wpa/wuwple/9907001.html

[tptacek]

Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.

http://www.roberthjackson.org/the-man/speeches-articles/spee...

In addition to being a Supreme Court justice, Robert Jackson was also Attorney General and also the chief prosecutor at the Nuremburg trials.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

[rayiner]

Right. It's defense counsels role to throw everything they can in good faith at the prosecution. Prosecution has a more nuanced duty the public.

[ternaryoperator]

It is an adversarial system. But where Ortiz gets it wrong is that the purpose of the whole system is to deliver justice, not to crush an opponent.

[rhizome]

I think we'll be waiting a long time for her to include careerism and score-settling among her motivations.

[tptacek]

The same piece dismisses explicitly the idea that ambition and careerism played a part in these problems. The issue here seems to be one of competence, not of motivation or integrity.

[rhizome]

I don't know, I don't think it comes down too hard on that point. I read it as some people think she's a weak manager, but it also describes weak cases that were charged whole-hog. I think it's probably a matter of interpretation and context whether the things in the article are a form of soft-pedaling for career's sake, bad lawyering, or misplaced priorities within the DOJ, or etc. It may have been a bit better of a study of her landscape if they had included Stephen Heymann in their reportage.

[rayiner]

I agree that if they though they shouldn't prosecute they should have dropped the case. Arguably, that's part of their duties as prosecutors. But we don't know what they thought. We just have huffpo rumors.

[mahyarm]

This kind of callousness and careerism happens with anybody who starts working in the industry of putting people in jail. They have to succeed in their organizations.

[tptacek]

Because definitely a great way to ensure the best people are handling the difficult task of prosecuting criminals is to cast aspersions on everyone who's ever done that job.

[mahyarm]

I made that statement because the incentive structures & cultures of these organizations make it you have to behave this way on some level or get weeded out. It wont apply to everyone of course, but the overall trend points to it.

It's up to the people who hold the knobs on the incentives to make the changes they want to see.