After Aaron Swartz's tragic death in 2012, a lot of bloggers have started throwing around the term, Prosecutorial Overreach when talking about Federal prosecutors Carmen Ortiz or Stephen Heymann. The problem is that this is a new term, invented seemingly out of nowhere in 2012. It sounds like legalese, but it isn't a Legal term. It sounds like one. It sounds very similar to Prosecutorial Misconduct, which is a Legal term…this is what the prosecutor of the Duke Lacross case was found guilty of when he withheld evidence from the defense.
Unfortunately, since Prosecutorial Overreach isn't a Legal term, people can use it in ways that they can't use Legal terms. People can say that the Prosecutor in this case is guilty of Prosecutorial Overreach. Usually, when we have a legal charge against someone, you say they are accused of, not guilty of, until they are tried in court.
So what does Prosecutorial Overreach really mean? Here are some possible definitions:
- When a prosecutor should have better things to do, but spends their time going after small fish.
- When a prosecutor throws a bunch of charges at a person that are frivolous.
- When a prosecutor goes after a case for purely political or career motivated reasons.
Unfortunately, it's not clear what people are actually saying when they use this new term. There are protections built into the legal system from an overzealous prosecutor bringing frivolous charges against someone…in the Swartz case, this was the Grand Jury. In this case, the grand jury indictment was unsealed, and it showed that a jury of 24 of Swartz's peers found that there was enough evidence to proceed with further legal action against him.
The danger of this term, Prosecutorial Overreach, is that it is a distraction from the battle that Swartz was fighting: The fight against copyright that didn't serve the interests of the public or the academic community.
It's an old saying that a prosecutor can get a grand jury to indict a ham sandwich. So a grand jury really isn't all that much protection. And what we see in this case -- as Eric Holder's congressional testimony makes clear -- is an effort to undermine the right to a trial. The worst part of that is that it *isn't* a shocking abuse in a unique case; it's how the DOJ normally operates.ReplyDelete
More here: http://www.atlassociety.org/brc/blog/2013/03/08/aaron-swartz-had-reasonable-option-plead-guilty-holder-says