In addition, no mention has been made of possible post-release restrictions that the US Attorney's office may have insisted on, but there is a very real possibility that the judge could have barred him from using a computer or the Internet during the mandatory 3-5 year supervised release period. Federal judges are free to implement any supervised release conditions they wish, and if violated the defendant can face significant additional prison time - up to the length of the supervised release (3-5 years). I didn't know Aaron, but I suspect that this fact may have weighed more heavily on his mind than the incarceration time itself. Four months on a federal case doesn't end after four months.
Even if the prosecutors kept mentioning the maximums, over and over, whenever the opportunity arose, unless they also specifically said they would ask for the maximum, the finely-crafted later statement from Ortiz isn't necessarily contradicted. Reminding of the maximums, to the accused and jury, could be an effective 'framing' rhetorical strategy to help make actual proposals of less (in negotiations or later motions) seem more reasonable or generous.
None of this excuses the law itself or overall prosecutor conduct. But we still should read their statements fairly, aware they contain self-serving spin, but also recognizing the precise things they do and don't claim via their word choices.
She made statements that only a lawyer could love - rife with plausible deniability for any responsibility they have in this mess. However, I think any reasonable person would agree with Linus's interpretation of the two statements.
Absolutely not. I've been shocked to see how many geeks - including Linus, do not seem to understand the concept of maximum penalties. This is not an obscure lawyer technicality, this something you see in the papers every day. Journalists like to quote the "up to" numbers because they sound dramatic, and as a functioning member of society you need to know what that means and doesn't mean.
Maximum penalties set an upper bound on sentencing based on the crimes you are charged with, to prevent abuses. The high maximum penalties in this case probably means the laws are overly broad, but say very little about what the actual sentence will be. Moreover, I do not think the items he was charged have a minimum sentence - he could have been found guilty, and still gotten off with a slap on the wrist.
And I'm shocked to see how many people misinterpret those geeks. We don't believe he was absolutely going to end up in jail for 35 years; we believe it was hung over his head to extort a plea deal, while remaining a real possibility.
> Journalists like to quote the "up to" numbers because they sound dramatic, and as a functioning member of society you need to know what that means and doesn't mean.
We're not talking about the concept; we get that. We're talking about a prosecutor that had large discretion in which, if any, charges to bring and brought multiple charges that had high maximum penalties for a reason. It's disingenuous to come back later and try to downplay the real charges with the real prospect of 35 years in jail, even if its real purpose was extortion.
It's easy to say "you need to know what that means and doesn't mean" until you're the one actually facing those penalties and financial ruin. I'm sure reminding you how the game works will be very comforting.
I still find 7 years offensive, but we need to understand the basic facts:
- 6 months is what he would get with plea bargain
- 6-7 years is what he would get if he went to trial and lost
- 35 years was what was in press releases to deter other people from committing the crime
| we believe it was hung over his head to extort a
| plea deal, while remaining a real possibility
That said, if they were telling him behind closed doors that they would seek 6-7 years, I don't think we can claim that they were holding the possible 35 year sentence over his head. As others have said in other discussions, if a judge had ignored the prosecutor and thrown the maximum sentence at him, it would almost certainly be overturned on appeal (max. penalties for a first time offender are almost always overturned on appeal).
I think one of the biggest factors was that he was facing a possible $1+ million trial with no funds to pay for it. Also, 6-7 years in prison isn't anything to laugh at.
When you play Russian Roulette, death for you is the MAXIMUM PENALTY.
So, your two options are to play Russian Roulette, or I'll bargain with you - you can give me $10,000.
"At no time did I ever seek - or even tell you that I intended to seek - death for you."
But your two choices were, to play Russian Roulette, or give me $10,000. I might even have accepted a counter-offer from you, say, $8,000.
Keep in mind, if you play Russian Roulette, it's up to the gun what really happens. You might just hear a loud CLICK. But limiting the maximum penalty to death, rather than for instance killing everyone you know and love, is there to prevent abuses.
I know it's a terrible analogy. I just want to point out that the statement, "At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law," that's a way of saying, "He had two choices, one, risk the maximum penalties, or two, bargain with us." That's a strong-arm bargaining tactic. Most people accept the plea bargain, but that doesn't mean the threat of maximum penalties wasn't made.
EDIT: As a prosecutor, her job is to put the gun on the table, load it with as many bullets as she can, and then get you to accept a plea. If Aaron had not accepted the plea, she would have done everything in her power to convict him of everything she could. Back to my analogy, there was more than one bullet in the gun - maybe 2, 3, 4, 5, or 6. A reasonable person would probably accept the plea - and that's up for debate, too. But for her to assert that "At no time did this office ever seek... maximum penalties under the law" is really deceptive / a lie.
This is pretty much the reason they say "get a lawyer", and let them work at it.
The field does require a lot of effort and education to get proficient in. Programmers get annoyed when someone tells them "just code this brilliant idea up and we will be rich".
This is similar.
He was an extremely talented rich white kid, associated with a top university who would have had dozens of high profiles vouching for him in court.
I guess his lawyer did a terrible job of telling him not to worry.
It's easier to say this when you're not facing prison and financial ruin.
He wasn't being charged with "downloading papers". He was charged with wire fraud, computer fraud, criminal damage, etc.
(http://www.guardian.co.uk/technology/2011/jul/21/aaron-swart...)
> US attorney Carmen Ortiz said: "Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away."
> If convicted Swartz faces maximum jail terms of 35 years and possible fines of up to $1m. Swartz appeared in court on Wednesday and was released on bail of $100,000.
And it'd mind-boggling that we're talking whether 35 years is realistic or not; the fact that prison is considered a suitable punishment for the alleged crime is a disgrace, and something that shames America.
source: http://www.bostonglobe.com/metro/2013/01/15/humanity-deficit...
Let's be specific, are you trying to claim that Aaron stood a small chance at actually be sentenced to 35 years, or are you just talking about jail time at all?
and so they didn't..
I predict that this will be the main area of interest when Abelson's report comes out. Why did MIT insist on jailtime?
> Let's be specific, are you trying to claim that Aaron stood a small chance at actually be sentenced to 35 years,
No.
> or are you just talking about jail time at all?
Yes.
By analogy, imagine a 3-strikes state where the 3rd strike results in life imprisonment. If someone is accused of committing their first felony, is it accurate to say "he faces up to life in prison" when that is not possible given his lack of criminal history?
Aaron suffered from depression, which can amplify "worries" to existential crises, which can lead to suicide. Depression, like many mental afflictions, affects the operation of thinking itself. That makes it hard (or impossible) to mentally "step back" and consider things from a different perspective.
A few months ago some pretty damn prominent community members here were telling us how there was no way in hell Aaron would ever serve any jail time. Turns out he was going to even if he accepted the plea bargain.
http://www.legalinfo.com/legal-news/judge-exceeds-prosecutor...
http://www.cadillacnews.com/news_story/?story_id=1806284&...
Michael Vick experienced this: http://sportsillustrated.cnn.com/2007/writers/michael_mccann...
Judges don't have to respect plea agreements or prosecutor's promises to the defendant:
http://criminal.lawyers.com/Criminal-Law-Basics/Plea-Bargain...
Reading their words "fairly" is to read them as they appear on the page. If you want to give them the benefit of their vaguery, then we can equally reasonably interpret their words as if they describe the greatest risk at hand.
After all, you want one side of the vagueness fence to say "hey, technically they weren't saying anything," while the other side of that same fence is "wow, look at the sum-total of their words and the threat they describe." Both interpretations are valid, you're just favoring the legalistic over the layman's.
100% agreed, unfortunately this will likely be decided in the legal arena, not in a public forum. The damage done to Ortiz' career is to some extent determined in the public eye and in that sense maybe Linus' statements help. At least he spoke out, he might have weighed his words better by pointing out that Ortiz has possibly technically spoken the truth but on a moral level is completely bankrupt.
This is only up to a certain point though. Plea bargains can be made conditional on the sentence not exceeding a certain limit.
No, that was not what she said. She said that he could be facing up to 35 years. In other words 35 years would be the maximum penalty. There is no implication that she was seeking the maximum penalty at any time.
They never actually say they're going to make 'something' happen if you don't deal. But everyone knows that is exactly what they mean.
It's no different for the prosecutors. Stating the maximums in a case that clearly does not compel the maximums is an intentional negotiating tactic that amounts to intimidation. It quite clearly and obviously means "I will use the threat of the worst-case-scenario, in negotiations, to wring every last month of term and dollar of penalty out of you." And that implicitly indicates the prosecutors were gunning for Swartz.
And that implicitly indicates the prosecutors were gunning for Swartz.
No. This was business as normal. This is what they do to EVERYONE. Whether THAT is OK is a different issue. But they really weren't singling him out for significantly worse treatment than they give to other people.
Such a defense would not only be an admission that the original criticisms against the office were 100% correct, but that the 'problem' of their unethical and immoral behavior is, in fact, much deeper than just Swartz.
Which is, in fact, why Ortiz won't go anywhere near a claim that they treat everyone the way they treat Swartz, with similar disregard for the particulars of their case or any human sense of justice or proportionality.
Attempting that argument would concede that the Swartz case is but today's face on the larger issue of proescutors run amok. [1]
[1] A subject well covered in a blog post by Charles Pierce, that I previously linked to in a thread on this topic: http://www.esquire.com/blogs/politics/The_Case_Of_Aaron_Swar...
I'm well aware that they treat everyone this way. That's not a different issue. It is the issue.
I'd say in that case they would be gunning for everyone they prosecute. As opposed to the people they aren't prosecuting. An alien invader could be gunning for everyone on Earth. "Gunning for" doesn't have some distribution defined definition when enacted by a single individual - an individual can "gun for" everyone in context and some do.
She can't say what a judge will do. She can't say what sentence the defense team might argue for. She can't even necessarily give a formal pronouncement of what she might argue for as that could tamper with negotiations between the prosecution and defense attorneys!
The only factual statement you can make about the charges when they're filed to give an impression of the seriousness is the statutory maximum, so-and-so can face up to X years in prison based on these charges.
I swear it sounds like a lot of the people here are either blissfully unaware of legal cases in general or are deliberately being hyperbolic now that it suits them. The former you can blame on ignorance I suppose, but the latter is disgusting.
Not publicly they don't. It's a press release for the media, and it's a statement of fact - the judge is free to sentence up to 35 years regardless. You can hardly expect this press release to contain the private details of an ongoing attempt to agree to a plea bargain.
If Linus said she made two _deliberate deceptions_, he'd be absolutely correct. Each statement exaggerates to suit the purposes of the context.
But Linus said she lied. If you define lying as deliberate deception, he was right. If you think a lie must also be false, you can accuse him of sloppy English. But Linus is only "dead wrong" if you think deliberate deceptions can be perfectly ethical.
Personally I wish Linus would slightly reword his post so that it doesn't confuse people who get hung up on semantics instead of his central point.
Yes, that would be for the best because as it is it's not just people who get hung up on semantics that are going to be bothered by this, it will allow opposition to his statements to reject them out of hand as untrue. And that is the bigger worry.
Which is precisely what the legal system in the US does. The judiciary gets into semantic analysis and declares a law unconstitutional. Sometimes, they get a little loose with the semantics and attempt to ascertain 'intent' and make a determination about the law.
Semantics matter when your life is on the line. Semantics matter when you're trying to communicate clearly.
Strictly speaking, he didn't.
"Compare these two statements - one from July 2011, one from yesterday, and tell me Carmen Ortiz isn't lying.."
Perhaps Linus' words were "carefully crafted" too. He didn't strictly say she was lying, but he sure did imply that she was deliberately deceiving.
You said:
"If Linus said she made two _deliberate deceptions_, he'd be absolutely correct."
Hmmm...
(FWIW, I think deliberate deception is the same thing as lying)
Second paragraph
Example usages: in this document: "Ctrl-F basically"
"Basically lying" is not the same as "lying", as commonly used in American English. Feel free to contrast this with "technically lying".
If you want to lawyer Carmen's words, then Linus get's to lawyer his.
One camp says: "The total penalty possible was 35 years. In general this scared Aaron Swartz. In specific Carmen Ortiz now saying that they weren't pursuing this penalty is a lie, since it was always a possibility."
The other camp says: "Forget the total that was theoretically possible. Every knowledgable person to talk about this case has said that Aaron would almost certainly have gotten only a few months jail time. And this is also what Carment Ortiz meant when she said 'We're only seeking a few months in jail'. Never mind the theoretical maximum that her office published, that's what was actually on the table".
It seems all the arguments here are about which point is "more true", but everyone seems to agree on the basic facts.
The only fact we don't know, is how much the potential, theoretical threat of 35 years in jail affected Aaron. And about that, no amount of internet arguing will help get to the truth.
Personally, I'm in the second camp - I don't see a reason to keep bringing up the 35 year figure, because I imagine that in a similar situation, I would be listening to the many people who know more than me telling me that 35 is not even close to a realistic possibility. And I certainly don't think it's lying for Carmen Ortiz to state the truth: her office did NOT seek the maximum penalty, and this was known to Aaron Swartz.
Thus there was a significant chance that he'd have gotten more than a few months of jail time.
Now re-read Carmen Ortiz. She never said she was only seeking a few months in jail. She said she offered him only 6 months in jail and was never going to seek the maximum sentence. What she didn't publicly say is that she was going to seek 6-7 years.
My take on it is that the prosecution did what prosecutors do. Jason Swartz seems to me to have been somewhat bipolar, and in manic phases he was brilliant, enthusiastic, idealistic, and a bit nuts -- which is what got him in trouble. In his depressive phase he killed himself. Blaming the prosecutors for his decisions is a tad harsh. The truth is complex and sad.
There are two kinds of people, those that try to divide the world into two groups and those that don't.
> My take on it is that the prosecution did what prosecutors do.
Likely true, but that does not make it right or morally defensible in this case.
> Jason Swartz
...
> seems to me to have been somewhat bipolar, and in manic phases he was brilliant, enthusiastic, idealistic, and a bit nuts -- which is what got him in trouble.
No, what got him into trouble is his tendency to stand up against vested interests. If he'd been picking on the neighborhood streetpeople nobody would have noticed. But he wasn't that kind of person, he tried very hard to improve the world as he saw it, to fix broken parts of it using his skills.
> In his depressive phase he killed himself.
That's a shortcut for which you are missing a bunch of supporting evidence.
> Blaming the prosecutors for his decisions is a tad harsh.
Saying they don't carry any blame at all is equally harsh.
The truth is - contrary to those that want to divide the world into black and white or two groups - something in the middle of that. There is plenty of blame to go around here.
> The truth is complex and sad.
That part of your comment we can agree on.
If she think she was right in the first place, she sold stick to it. If not she should apologize. Now she is just looking like a fool.
She is saying this 'for the other lawyers', specifically her bosses in congress. She likely doesn't give a rats ass about what Joe general Public thinks about the case but is likely scared shitless that if this turns in to actual culpability that Aarons relatives will sue.
Her political career is dead in the water, she might hold on to her job if the shitstorm doesn't get any worse. Google "carmen ortiz" to see how it is developing, you might as well google "Aaron Swartz", the results are much the same.
The word I use for that is "lie".
In addition to repealing the CFAA, I'd like to see some hard character standards imposed for government prosecutors, some legal requirements and tests imposed on Bar Associations for the benefit of the public against and for whom they serve. We can call it "Carmen's Law."
I think this strategy is par for the course because it generates a situation the prosecutors control, similar to the anchoring strategy used during business negotiations. You've just undermined the position of the defendant at no cost to yourself. As long as prosecutors careers do not depend on justice but on cases won this will likely continue or even get worse.
I thought that justice system was required to provide an attorney in the case that a defendant didn't have the means by which to procure their own representation? Is your comment only to suggest that a public defender wouldn't be capable of properly defending Aaron and thus he would need to pay for his own lawyer?
If that's the case, then there is really something seriously wrong with our system if the inability to pay a lawyer basically condemns you to being guilty (or pleading) while the rich and defend themselves with teams of the best.
The justice system is required to provide an attorney if you can't get your own. However if you look at http://www.innocenceproject.org/ you'll find that incompetent representation is one of the major causes of innocent people losing these cases. Furthermore in Aaron's case he's being charged under a fairly specialized part of the law, so his odds with a generic defense lawyer against a prosecutor who has specialized in computer crimes would be very poor.
And yes, there is a lot seriously wrong with our system.
"oh, I'm sure that it's "true" that in private talks they were very much not seeking the maximum penalty. That's how the whole plea bargain thing works.
But there's no question that Carmen Ortiz' office also made the whole thing very public, and everything that ever got written about that PR statement talked about the "up to 35 years" etc. So the whole "never said we intended to seek" thing is at very best misleading. It was always there very much as a threat.
It was always there very much hanging over Aaron Swartz.
And trying to say anything else is just lying."
But wouldn't the maximum penalty be there always no matter what the prosecution would do? I mean, isn't the final decision made by the judges, who can give the penalty the deem fit (in the bounds of the law)?
Suppose for example they think they can prove charges A,B and C, and say, each of them comes with a maximum penalty of 1 year. Even if they seek a conviction for 6 months they will put forth all three charges, after all it might turn out that the court finds him innocent of A, and if they didn't bring B,C the prosecution is screwed.
So basically, if you don't want to confess (because you're innocent), all bets are off and you might get 35 years.
How is he wrong?
Coming from a different legal system (germany) I find the way prosecution and plea bargaining works in the states scary, but calling the prosecutor a liar when she works in the common framework is not helpful. It just undermines your cause by opening you up to an unrelated argument about semantics that you'll probably loose. Stick with the facts, argue against plea bargaining and pressure tactics in the legal system. Argue against the fact that to prevail in court, you need massive funding, that justice can effectively bought. Don't get caught up in false arguments about whether Ortiz technically lied or not.
Back to the facts: Carmen Ortiz (participant in the system) placed an upper bound of 35 years. She never placed any other gravity quantification in public on the record. All that is on the record is that she thought that the crimes are in the 35 years gravity class. Coming back and saying "I really meant 6 months" is a a contradiction of on the record facts, aka a lie.
It is just obvious that the first thing she put out was purely legal posturing. They do it all the time. It means nothing.
Crying out loud "But Aaron killed himself, his death must mean something." just does not help any cause. He was a bright, talented man who got caught up in a legal case that highlights major problems with the way criminal cases get resolved. Focussing on that and highlighting the problems should be the goal, not revenge for his death.
Yes, I think 6-7 years is still too much, but you aren't helping anything by telling everyone something that isn't true, i.e., Aaron thought he would face 35 years in jail if he lost.
35 years is absolutely what Ortiz said -- to the public. Ortiz also wants to discourage other people.
Tangentially, it really bothers me that there is even such a job as Government Prosecutor. Government should not have a self-interest. The system really is fubar, the only solution is probably 'rm -rf /'. At some point in Carmen Ortiz's life, she decided to devote her life to becoming a government prosecutor. That in and of itself speaks of her character. Whether or not she is lying in this particular instance is irrelevant, this is who she is, this is what she does, this is what she chose to devote her life to.
(Of course she's lying! She a prosecutor for chrissakes! AND she works for the government! Did she open her mouth? That means she's lying!)
Ignoring the personal attacks and hyperbole in your post: In a system without government prosecutors who do you think should prosecute for crimes? Should a murder victims family have to hire a private attorney to file a civil lawsuit? If they can't afford it, will the murderer go free? Please think your argument through to the end before taking cheap shots against the government in general.
A couple days ago I saw a repost of an old HN thread where people debated a notice Aaron had put on his website stating that he was accepting money for a legal defense. Did we just not help enough? Or was there some reason that making a more public plea, or giving details of the case would make the judge angry? I expect the answer these questions has already been covered in detail, so links are appreciated.
I've seen nothing about it publicly, other than comments that it would have annoyed the judge for Aaron to have publicized the details of what was going on. And, of course, if nobody knew what he was actually going through or what it would cost, nobody would have donated to him. After all we all thought he had money from Reddit.
So the golden question is why the judge would be annoyed. Is it just a vague fear that the judge would not take kindly to an attempt to bias the jury by starting a media shitstorm? Was there a specific discussion that dissuaded him? Did his lawyer point out that his public statements could directly disadvantage him in the court? I have no idea, and wish I did know better.
But the fact is that, for whatever reason, he didn't think he could speak publicly. And without speaking, he could not possibly have raised a significant sum of money.
That was not 'not enough help', it was a net negative imho.
The maximum statutory penalty for the original 4 indictments was 35 years. The prosecutor was planning to seek 6-7 years. There were two plea bargains offered, one was 4 months and no disputing the period, the other was 6 months but the defense attorney would be allowed to try to convince the judge to lower it. (The judge, of course, is not bound to follow the plea bargain.) And the average cost of defending one of these is $1.5 million, which is money Aaron did not have and could not raise.