Regarding the addition of "malice" to some successor of the CFAA: the prosecution could have charged malice; there was clear enough evidence that Swartz's goal was to harm JSTOR. A malice requirement would have made the case harder to win, but the tragedy here isn't how hard this case was to win.
Aaron's attorney, who at this moment is motivated to make the strongest possible case for the hardship Aaron faced, says he believes Swartz (a) could have beaten the charges as they stood and (b) was very unlikely to get more than a suspended sentence even if he hadn't. I think there's broad agreement that Swartz both shouldn't have and was unlikely to serve time as a result of this case.
Which brings me back to Heymann and the conduct of the prosecution, which seems to have been hell-bent on scaring the crap out Swartz.
I mailed his attorney a couple days ago. Part of the tragedy is his attorney would have won this case.
Maybe what is needed is some kind of "legal counselor" to guide defendants in cases like this. Especially if a defendant is irrational or depressed, it's probably an inherently hellish process.
>Maybe what is needed is some kind of "legal counselor" to guide defendants in cases like this.
And then we could put them in an office and call it something like the public defender's office. ;)
Of course, then having them do their jobs would be expensive and no one wants to pay to help "criminals" so it would end up chronically underfunded and become unable to properly serve its clients.
But he'd still be bankrupt even if he beat these charges. That defending yourself and winning could still ruin your life is something else that is terribly wrong here. After all, that means that guilty or not you're going to be punished, and punished hard.
Aaron's attorney, who at this moment is motivated to make the strongest possible case for the hardship Aaron faced, says he believes Swartz (a) could have beaten the charges as they stood and (b) was very unlikely to get more than a suspended sentence even if he hadn't. I think there's broad agreement that Swartz both shouldn't have and was unlikely to serve time as a result of this case.
Which brings me back to Heymann and the conduct of the prosecution, which seems to have been hell-bent on scaring the crap out Swartz.