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.
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.