In his book Three Felonies a Day, veteran defense attorney Harvey Silverglate warns that "the trend of ambitious prosecutors exploiting vague federal laws and pursuing criminal charges instead of more appropriate civil actions" makes potential criminals of us all. Redundant indictments for multiple offenses flowing from a single act -- and threats of lengthy, life-destroying sentences -- enable prosecutors to extort pleas from innocent or not-terribly-guilty defendants. It is often "nearly impossible for normal, rational, self-interested, calculating people to risk going to trial," Silverglate observes.



Moreover, the minority of people willing to take that risk may be deprived of the means to do so by pretrial orders freezing any assets allegedly generated by their alleged offenses.

So, as a practical matter, federal prosecutors have the power to neutralize your right to a trial and presumption of innocence. As Silverglate demonstrates, they regularly coerce pleas. Aaron Swartz had the "choice" of pleading guilty to 13 felonies (which he and many others did not believe he had committed) and accepting a four-month prison sentence or going to trial (at an estimated cost of about $1,000,000) and risking a 35-year sentence. He opted out.

Will his martyrdom matter to the justice system? Maybe a little. This case should, and perhaps will, damage the reputation of Boston U.S. attorney Carmen Ortiz, undermining the political ambitions she is believed to harbor. (Ortiz is mentioned periodically as a potential gubernatorial candidate, to the dismay of civil libertarians highly critical of her record.) The Swartz case should also invigorate efforts to narrow federal computer crime law.

But one case alone, no matter how grievous or widely lamented, will not change the entrenched habits of abusive prosecutors who operate out of public view in most cases. One case will not persuade the president or attorney general to enforce high standards of fairness and integrity throughout the Department of Justice (in the FBI as well as U.S. Attorney offices). One case will not shake bipartisan congressional support for harsh, redundant, elastic criminal laws. It will take much more than one case to dispel the fear of seeming soft on crime and tough on deprivations of liberty.

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