http://www.youtube.com/watch?v=EwITESzeCf4

The federal prosecutor dropped the charges against Aaron the day before his funeral. (Does that count as a tie in her Won/Lost statistics?) The gesture was lost on Aaron’s family, who said Aaron’s death “…is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims.” It seemed clear to the family and many of his friends that the prosecutor had over-reached in Aaron’s case, had in fact driven him to suicide. No less a legal light than Larry Lessig, normally mild and even tempered, weighed in with harsh criticism. Aaron, Lessig wrote,

…was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

The American criminal justice system is worse than imperfect. It is adversarial, each case a trial by combat, defense attorneys and prosecutors jousting before a judge and–infrequently–a jury who will determine the victor. Elaborate criminal codes, precedents, and judicial rules and guidelines describe the boundaries within which the serious game is played. Many, perhaps most, lawyers will agree that the US Attorney’s Office dealt properly with Aaron. Orin Kerr, writing at The Volokh Conspiracy offers a detailed two part post about The Crimimal Charges Against Aaron Swartz.

In Part One, The Law, he concludes that “…the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All of the charges were based on established caselaw. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged.”

In Part Two, Prosecutorial Discretion, Kerr writes, “I think that some kind of criminal punishment was appropriate in this case. Swartz had announced his commitment to violating the law as a moral imperative in order to effectively nullify existing federal laws on access to information. When someone engages in civil disobedience and intentionally violates a criminal law to achieve such an anti-democratic policy goal through unlawful means — and when there are indications in both words and deeds that he will continue to do so — it is proper for the criminal law to impose a punishment under the law that the individual intentionally violated. (Indeed, usually that is the point of civil disobedience: The entire point is to be punished to draw attention to the law that is deemed unjust.)”

Kerr addresses a range of legal questions and issues and I find it hard to disagree with him. But, there seems to be a meaningful issue that the best legal minds avoid. How fair was the prosecutor in the way she played the game? It’s not a question that we often consider. Are prosecutors required to play fair? We have judges and referees to keep both sides in line. But Aaron had a point to make. In order to make his point he needed to have a fair hearing. To get a fair hearing for his victimless crime, he was asked to risk thirty-five years of his life and be branded a felon. The prosecutor offered Aaron a choice. She was willing to drop Aaron’s risk of incarceration to a mere six months, to accept a plea bargain. Aaron could brand himself a felon by pleading guilty, and he would have been denied any hearing whatsoever. In the context of the prosecutor’s daily work, this may have seemed fair, but I think the prosecutor’s balls to the wall approach effectively denied Aaron Swartz a hearing and therefore it denied him justice, and that depressing circumstance cost him his life.

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If I get hit by a truck

The Government Accountability Board audited the Waukesha County canvas and turned up only a few minor inconsistencies. Yesterday they reported that their audit review included:

Total Votes Cast Report from Voting Equipment
Ballot Container Security Seals/Documentation
Inspectors’ Statement- Election Day Log
Write-In Form
Security Documentation of Voting Equipment Memory Devices
Certification Page of Poll List

They did NOT audit the voting machine programming. A hand recount is the only way to assure that the machines accurately tallied the votes. A statewide hand recount is the only way to be sure that a large scale hack-a-thon in Republican controlled counties didn’t skew the election results. There is sufficient concern about the record of the Waukesha County Clerk to gain a court ordered hand recount in her county, but unless we bite the bullet and go through the painful process of a statewide hand recount, we won’t be sure that our voting machines haven’t been hacked in a systematic way.

Waukesha County has a consistent pattern of voting irregularities with a Republican bias going back to 2024. Barb Caffrey documents them here. Wisconsin voters place a lot of trust and confidence in our elections officials. Historically, they’ve deserved it. But trust without accountability puts us on the edge of a precipice. Unless we verify results from time to time, we’re vulnerable to being pushed off that cliff but a self-serving few. The 2024 Supreme Court election is an opportunity to verify that the self-serving few haven’t found a way to steal our ballot boxes.

Kloppenburg’s decision must be made by 5pm today. From 12:30 to 3:30 today, in the State Capitol building at the Government Accountability offices a Rally for Election Fairness will be held. The Kloppenburg campaign can be reached by email at campaign@kloppenburgforjustice.com

UPDATE

She did it! Thanks JoAnne!

Locally, there were challenges for the right wing “great communicators.” The big screen displaying images of the speakers seemed better positioned to communicate with the thousands of protesters on the Main Street lawn than with the few hundred teabillies on the King Street sidewalk. The left wasn’t giving anybody slack. Bells, drums, and roaring voices drowned out the sound system. The Americans for Prosperity carpetbaggers–Palin, Breitbart, et al.–were impossible to hear unless you were at the front of the gathering. Even so, at least one local lefty lamented the fact that the Koch brothers could afford better Audio/Visual gear than we can. In truth, this was the first time I’ve seen a big screen mounted on the Capitol wall. I hope they didn’t damage the building.

Earlier in the week I saw a Facebook posting suggesting that people avoid a counter-rally and work locally to gather petition signatures to recall the six remaining Republican senators. Good advice, I think, but there will be lots of people who can’t avoid gawking at a train wreck.

I’ve already missed opening day at the farmer’s market so if there was any asparagus on hand, I missed it. As for La Palin, I’m not missing a thing, although I’ve heard that if I can avoid vomiting, I can see her live around 1:30 on this link: http://www.channel3000.com/localvideo/?v=live

Wisconsin recently saw the passage of a controversial funding bill that addresses the state’s $3.6 billion budget deficit. [On April 14, 2024], a House Committee called Wisconsin Gov. Scott Walker (R) to discuss his approach to crafting the budget bill.

Along with Gov. Peter Shumlin (D-VT), Committee members and Walker studied what difficult choices individual states must make regarding state and municipal debt.

In a hearing titled “State and Municipal Debt: Tough Choices Ahead,” Committee members looked into states across the nation on how their government officials can tackle debt while increasing employment in the region.

The three hour C-Span recording of this hearing is well worth watching. The two governors could not be more different in terms of intellect, leadership ability, goals, or the willingness to let ideology drive their responses to the committee. At every turn Walker is willing to sacrifice truth for ideological commitment. His self serving rhetoric and the lies he tells are so transparent that he is a caricature, a political weasel. Shumlin doesn’t betray his commitment to a liberal ideological perspective, but his answers paint him as a civil, honest, effective leader who cares for people on a personal level.

UPDATE
Representative Dennis Kucinich questions Walker on collective bargaining provisions of “budget repair” bill:

UPDATE
Representative Gwen Moore informs Walker of the ramifications of his ill conceived budget bills:

The investigation found that Mr. Gardner, the owner and president of Wisconsin & Southern Railroad, directed the railroad company to reimburse 11 political contributions totaling $53,800 from himself, a number of railroad employees, an acquaintance of Mr. Gardner, and his daughter. The investigation also found that Mr. Gardner specifically directed or requested the individuals to make the contributions. The contributions and reimbursements were made from November 2024 through April 2024. Except for two contributions totaling $4,000 to former Assembly Speaker Mike Sheridan and the Assembly Democratic Campaign Committee, the remaining contributions were made to the Friends of Scott Walker committee.

Gardner himself will get two years probation, no jail time, and his corporation will be fined $166,900. Sound like a big fine? Maybe it’s not so much when you consider that Walker’s Department of Transportation provided grants and loans totaling $15,533,591 to Gardners company since Walker assumed office this year. On March 11, 2024, the Dept. of Transportation announced:

• The Wisconsin & Southern Railroad (WSOR) will receive a total of $3,647,149 in grant funds to cover 80 percent of costs for emergency rehabilitation and reconstruction work on system bridges in Rock, Dane and Green County. A WisDOT loan of $455,894 will also be provided to cover 10 percent of the project costs. The remaining 10 percent, $455,894, will be provided by the WSOR.
• The Wisconsin & Southern Railroad (WSOR) will receive an additional $8,867,515 in grant funds to pay for 80 percent of the total $11,084,393 remaining costs of Phase II rehabilitation work on the Madison to Milton, Wisconsin rail line in Dane and Rock County. WisDOT will also provide WSOR a loan of $1,108,439 to cover 10 percent of the cost of the work. Total cost of the three-year project is $19,645,893. Of that, $15,716,715 is WisDOT grant funds, $1,608,439 is WisDOT loans to WSOR, and $2,320,739 was provided by WSOR and the WRRTC.
• The Wisconsin & Southern Railroad (WSOR) will receive a grant of $1,454,594 to cover 80 percent of the $1,818,243 total cost of rehabilitate 1.8 miles of rail line in the Waukesha area. The remaining 20 percent of $363,649 will be provided by the WSOR.

The Government Accountability Board and the District Attorney haven’t linked Gardner’s campaign contributions to the Walker administration’s pay-back suggested by the DOT grants and loans to Gardner’s company, but the whole thing stinks. The odor is particularly offensive when blown in the breeze of Walker’s mishandling of Federal high speed rail funds. When he took office in January, Governor Walker returned $810 million to the Federal government and shut down the project to establish a high speed passenger line between Milwaukee and Madison. That line would have cost the state about $750,000 a year and it would have provided between 5,000 and 10,000 permanent jobs.

Driving that train, high on cocaine
Scotty Walker better watch your speed
Trouble ahead, trouble behind
And that recall notion just crossed my mind…

At that time there were ninety precincts in Waukesha County and two in Milwaukee unreported to the AP. The race was a dead heat. Waukesha County is largely right wing. It didn’t matter which of those precincts hadn’t reported. I was convinced they’d swamp Kloppenburg.

Amazingly enough, when I woke up, Kloppenburg had won! AP claimed that all of the Waukesha County precincts had reported and the totals showed a razor thin margin for JoAnne Kloppenburg. Clearly there would be a recount, but based on the AP story the Kloppenburg camp was in high spirits. Who knew that the AP report was wrong? It didn’t matter. The news quickly spread that Prosser had hired Ben Ginsberg, the attorney who spearheaded the Bush recount efforts in Florida in 2024:

This was bad news indeed, and my sense was that Ginsberg, working his magic here in Fitzwalkerstan, would out-class any hired gun that Kloppenburg could bring in. For me, this was the second defeat. Later I learned that Marc Elias, who headed up the Franken recount efforts in Minnesota had joined forces with Kloppenburg, but that faint candle was quickly snuffed out. The Waukesha County Clerk reported that the canvas revealed that Brookfield votes had not been posted. Instead of a razor thin margin of 200 or so votes separating the opponents, Prosser now had a comfortable margin of 7,000 votes.

I’m quite confident that the Brookfield numbers as finally reported are correct, because the BrookfieldPatch reported those numbers on election night. I’m also confident that there’s something rotten in Waukesha County because the County Clerk has worked directly for Prosser and was granted immunity during the caucus scandals a few years back. Deke Rivers has a good blog post on the welter of issues that, regardless of the Brookfield botch-job, make it impossible to trust the Waukesha County results without an independent investigation. He says,

This error seems more than fishy given the past working relationship Kathy Nickolaus has had with David Prosser. For thirteen years Nickolaus worked for the Wisconsin State Assembly Republican Caucus as a data analyst and computer specialist. During that time Prosser served in powerful elected positions in the State Assembly.

Before Kathy Nicklous resigned in 2024 from her partisan job she was granted immunity to testify about her role in the caucus. The Republican Caucus was under investigation for using state resources (tax dollars) to secretly run campaigns.

There is no way that I buy into Kathy Nickolaus’ near-tearful explanation of how Brookfield was misplaced when counting and adding the numbers.

I do believe her when she says that the Brookfield numbers were somehow omitted from the initial reports. I also think that it’s likely that the whole Brookfield thing is a red herring and that the Republicans are using it to distract our attention from some other shady manipulation of the process that they’ve concealed. But if we find evidence that they’ve stolen votes from Kloppenburg, or added votes for Prosser, or some other way abused the process it seems unlikely that it will matter. Seven thousand votes is a pretty big deficit to overcome.

State Senate Minority leader Mark Miller says,

It stretches the bounds of credibility to think that over 14,300 votes were somehow “overlooked” until two days after the election.

Based on the partisan, political history of Ms. Nickolaus and the serious concerns that have been raised, by other Waukesha County officials, about the quality of her election administration and the possibility for fraud, an independent investigation of her conduct and the county’s election results is not just warranted but urgently demanded to protect the integrity of our electoral system in Wisconsin.

Assembly Minority Leader Peter Barca says,

The partisan, political history of Ms. Nickolaus and the serious concerns about the quality of her performance found in an audit raises the question of whether an investigation is warranted. The public deserves to know that the votes were counted properly.

County Clerk Nickolaus, who worked in the Assembly Republican Caucus under then Minority Leader and Speaker David Prosser, has a history of clashing with county officials over her election responsibilities. She has drawn criticism from the County Board Chairman and other County Supervisors as recently as January for her unwillingness to adhere to audit recommendations. Internal Audit Manager Lori Schubert indicated that after last fall’s elections that Nickolaus needed to improve security and back-up procedures. Director of Administration Norman Cummings late last year indicated that they have not been able to verify that her system is secure.

Her approach raises questions about the integrity of the election to the highest court in our state

Congresswoman Tammy Baldwin tweets, “To assure public confidence in our election process, I have asked AG Holder to investigate the handling of vote records in Waukesha County.” So I guess it isn’t over until it’s over and even we pessimists must hang-in until the bitter end. The Kloppenburg for Justice Committee is accepting contributions to fund a recount.