Well, he's wrong about this. Quoting the maximum statutory penalty is the standard in news releases, but tells you exactly zero about the negotiations in attorney conferences. US attorneys don't write the press releases, those are done by the most junior lawyers and quote the statutory maximum because it's factual without giving anything away about the government's courtroom strategy.
What if there was no mention of the penalty they were seeking in negotiations or it was left highly ambiguous? In that situation I could see a public press release announcing that you might face 35 years in prison as quite threatening.
When someone is charged with certain crimes and the press (or a press release) mentions he faces up to X years, it is always the maximum penalty that is being quoted, while the prosecutor usually does not seek it (anything else would be untrue). If Aaron Swartz himself did not realize that, I am sure that his lawyer could have cleared up any confusion for him.
You need to understand that these people are maximalists. They're never going to say 'we're asking for 7 years' in any context where that can be recorded, because it weakens their hand at the bargaining table. In fact, the shakier the case is, the more they need those 'worst case' numbers to terrify.
The only things that matter to these maximalist dickholes is:
* successful conviction
* maximum penalty they can achieve with what they have
* if you don't take the plea bargain, make you regret it
If they really hate you, they put people on 'document generation duty', which is cheaper than document review, and throw hundreds of thousands of documents at you during trial. They find the most expensive venue for you, and if you have an employer that has somehow stuck by you this long, they coerce it into letting you go.
The entire goal of this sort of thing is to deprive people of a chance to actually go to trial and stand a chance of acquittal, particularly when gaining a conviction 'honestly' is going to be difficult or expensive.
I don't even think that it's a maximalist approach. It's a "we don't talk about ongoing investigations" approach so there is no figure that anybody could quote apart from the maximum.
What makes you think they had a plea bargain agreement to announce at that early stage? Issuing a public statement before an agreement is reached doesn't help anyone.
Either you like Mrs. Ortiz or not, no one is really going to make their decision based on whether or not Aaron Schwartz believed he was facing 6 years, or 35 years.
He was looking at 6 months tops, which means serving 2 tops as a first time offender, which means probably out in a month, which means probably a suspended sentence. My advice to anyone thinking about killing themselves over spending 35 years in jail... stop watching Oz, visit someone actually in a minimum security prison, ask them what it's like, take a plea for 4 months, get some exercize, go to bed early, eat some shitty food and enjoy all the ammenities club fed has to offer for a month or two.
Have you spent any time in prison? Have you visited anyone in any prison? Which federal prison do you suppose Mr Swartz would have been sent to if he had been convicted?
I don't believe he was going to do 35 years, nor 6 months. I don't think he did anything that warranted serving a jail sentence and felony conviction at all. If you think just taking the felony rap without serving a sentence is just as good, boy does the rest of the world has some news for you.
I think he was already depressed, the charges were weighing on him, and so were the legal fees.
Even if it wasn't 35 years, 6-7 years is plenty long to ruin anyone's life.
If Aaron decided not to accept the guilty plea, his option was 6-7 years and not 6 months. After reading everything that has been written about him, I would assume that he won't choose a 6-month sentence in exchange for pleading guilty to liberating information.
No, his option was to see what he'd get at trial, where the sentencing would be dependent on which crimes he was convicted for, which elements of other crimes the jury felt he infringed (without being enough to be guilty overall of the charge).
Had the prosecutors gotten convictions on each group of charges they filed they would have pushed for 6-7 years (they have to, otherwise why take the plea?). The Federal sentencing guidelines would have recommended a sentence in the range of 1-2 years (according to Jennifer Granick of all people, who is decidedly not a fan of what happened to Aaron Swartz).
The final sentence would have been up to the judge but given the circumstances (rich; white; well-respected; first-time offense; relatively innocuous as far as effect) it's extraordinarily unlikely he would have received more than the FSG (and if he did, it would help out his case immensely on appeal).
> for pleading guilty to liberating information.
If liberating information is his goal, why wouldn't he be proud and honored to wear that particular Scarlet Letter? Do you think those branded by the Nazis for guarding Jews would be anything other than proud to show to their children and grandchildren the living proof of their taking a righteous stand when others were afraid?
Linus is dead wrong on this. We have independent confirmation of everything that Ortiz said from the Boston Globe's interview with Aaron's defense attorney.
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.
And the average cost of defending one of these is $1.5 million, which is money Aaron did not have and could not raise.
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.
Given how the rest of the society works, I'd be not surprised that "incompetent" really means "poorly connected" and that the whole system is just a $1.5 million racket to get a "well connected" lawyer to grease your case.
No, in this case, incompetent means "incompetent." Public defenders are often inexperienced and overworked, and are notorious for advising their clients to accept plea bargains rather than go to trial.
Then you are really are fucked indeed. As an example here (Estonia) state pointed lawyers are choosen from reputable offices only, and they are forced to do that.
The only good that has come out of this horrible episode is that more people are finally starting to understand the problems of CFAA and with the unbalanced situation in federal cases.
Any crime has a maximum sentence. If I rob a store, there's a maximum sentence. If I kill a man, there's a maximum sentence. If I cross on red, there's a maximum sentence. Depending on the circumstances I may or may not get a lower sentence. But the maximum sentence is always there and you might get it - the decision is up to the judge. So all the prosecutor can say "The maximum sentence is 35 years" and maybe add "and I'm seeking 6 years, but the decision is up to the judge."
There is one detail: she never added, in public, "I'm seeking X years". She always kept talking about the maximum penalty. The ball is in her court and Linus is right to call her backpedaling a lie.
I would not expect a prosecutor to talk about the sentence she seeks before the actual court hearing. And we don't know at all what was discussed in the plea bargainings. So no - no lie. Not here.
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.
The core issue is that the system relies on bargaining instead of truth. But we can't make judgements of the system in abstract. The system is the sum of the actions of its participants. In that sense, it is perfectly fine to call out individual actions "lies", even if they perfectly fit the system. That only illustrates the absurdity of the system.
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.
Back to the facts: Carmen Ortiz thought she could make multiple counts of wire fraud, unauthorized access to computer systems and some other charges stick. Each of those charges carries by law a maximum sentence. The 35 years that get handed around is the sum of all those maximum sentences. I so far haven't seen a public statement that says "I, Carmen Ortiz think that the appropriate sentence for the case at hand is 35 years." There is no contradiction here.
The common framework is to extort people into taking a plea bargain by threatening them with huge prison sentences by throwing every single felony they can think of at them. When you threaten someone you have to be willing to back up your threat if they call you on it or it wont work in the future, so I am not really seeing how this makes her not a liar.
The main reason he's wrong is because she used lawyer speak. She said something that was misleading but technically true. She said that they didn't seek maximum penalties. What she must want people to think when they read it is that she didn't seek harsh penalties, which she did by increasing the number of counts. But since she didn't say this, it isn't technically false.
She can save the "technically true" for the other lawyers, the rest of us are not amused. The fact remains that she was seeking a severe sentence, but now want to magically make up another truth...
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 can save the "technically true" for the other lawyers
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.
And when you have a situation like that where neither is "technically false," it's called "talking out of both sides of your mouth." However, besides the point, is "misleading the public and the defendant" a professional standard for federal prosecutors?
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."
> However, besides the point, is "misleading the public and the defendant" a professional standard for federal prosecutors?
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.
Right now there's an opening to deal with the fact that it has become par for the course, with the problem of careerism and point-scoring with people's freedom.
Yes and that window of opportunity is already slowly closing, the real pressure points are that technicalities and an overly literal interpretation of the law should not trump morality, that selective prosecution is rife with abuse and another important area is that justice should be about actual justice rather than career advancement as well as the negotiation tactics involved in plea bargaining.
Well from my understanding the 4 months is not what he would get for sure, that is just what the prosecutor would tell the judge to do. He could still get anywhere between 4 months and 50 years (the maximum after the prosecutor added even more charges) but since he plead guilty as part of the deal he could no longer fight it in court.
Linus isn't wrong. She made two directly conflicting statements in press releases, which is what he pointed out. The first, which she made at the outset of the case, was that he was facing 35 years if convicted at trial. They make statements like this in order to foster plea discussions, which resulted in the 4-6 month offer she mentioned in the second statement. While this would be considered extortion in any other context, this is entirely legal under current law and forms the basis for our entire "justice" system.
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.
In the weaselly shades of English used by lawyers and politicians, the two statements highlighted by Torvalds do not necessarily contradict one another. The older statement accurately describes the maximums the law allows, and was used when that was the emphasis. (At the time, the DoJ probably didn't know themselves what sort of sentence they'd ask for, so the only informative and unfalsifiable thing to put in a PR statement would be the statutory ranges: "faces up to".) It didn't necessarily imply the prosecutors were seeking or ever would seek that penalty.
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.
I expect that any criminal defendant, including Aaron, would read her initial statement as "they're going to put me in prison for 35 years". Even as plea negotiations went forward, the implication was "plead this out or you will get 35 years".
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.
You really should read up a bit on this. His three lawyers all failed to reach a conclusion to the case that did not include jail time, possibly greatly increased during the actual sentencing (true, the latter was a small chance but a chance anyway).
You should read up on this too then. His lawyers did manage to extract a plea deal with no jail time, but then MIT wouldn't sign off on it.
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?
To what extent is it true to say "SWARTZ faces up to 35 years in prison" if there is a 0% chance he'll face that penalty? Wouldn't it be more accurate to say "his alleged crimes are punishable by up to 35 years in prison"? Or was there actually a small but non-zero chance he'd face 35 years?
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?
> 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.
> I guess his lawyer did a terrible job of telling him not to worry.
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.
> It was not at all realistic to think a 35 year sentence would have been handed down for downloading scientific papers, even in America.
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.
> I expect that any criminal defendant, including Aaron, would read her initial statement as "they're going to put me in prison for 35 years".
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".
> I expect that any criminal defendant, including Aaron, would read her initial statement as "they're going to put me in prison for 35 years".
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.
> I've been shocked to see how many geeks - including Linus, do not seem to understand the concept of maximum penalties.
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.
Thats a great summary. It doesn't matter what was said in public if it was overruled in private. It sounds very clear that Aaron knew the maximum they were seeking was 7 years.
| we believe it was hung over his head to extort a
| plea deal, while remaining a real possibility
All you have to go by are public statements/press releases though. All of the private communications between Aaron (and his lawyers) and the prosecution are relevant here. It sounds like, while quoting 'up to' numbers in public, they were telling his defence that they planned to seek 6-7 years at trial (without a plea bargain). Obviously this wasn't something they were bound to (they could change their mind and seek maximum penalties at trial).
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.
Here's a terrible analogy, to explain to you why I think your reasoning is wrong:
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.
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.
> 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.
> they make statements like this in order to fosterlea discussions
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.
> The first, which she made at the outset of the case, was that he was facing 35 years if convicted at trial.
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.
Said once, of course. Regularly repeated though, it is a scare tactic to push for a settlement, with "up to" merely acting as a plausible deniability device. Being prosecuted is psychologically exhausting, and such tactics introduce lingering thoughts weakening one's mind even more.
Her reasons behind the word choices may have been nefarious (although I hardly believe that either). But she didn't lie or contradict herself, which is what Linus is claiming.
It's not even nefarious. What else is she supposed to say about the sentence when charges are initially filed?
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.
She identified the maximum the same way a protection racket says "It'd be a shame if anything happened to this nice business you've got here".
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.
The point that they gun for everyone is no defense. (That everyone gets shaken down for protection money does not mitigate the immorality of that act in individual cases.)
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]
So if they are shamelessly using any means available to try to convict everyone they prosecute, say to increase their rate of successful prosecutions and thus professional status, then by your definition then they aren't gunning for anyone?
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.
If Linus said her statements were _false_, he'd probably be wrong. Both statements appear carefully crafted.
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.
> 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.
Aaron killed himself for reasons we do not know. We are all saddened because of that loss and I understand that emotions are running high, but please keep in mind that he reportedly was suffering from a depression. The pressure from the investigation probably added to all of that, but the whole case may have just been a trigger or even an unrelated event. Depressive people sometimes kill themselves for a variety of reasons that mentally stable people would shrug off and ignore.
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.
Aaron knew it wasn't 35 years. Aaron's own lawyers have said it was 6-7 years.
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.
Linus addresses this in a comment further down below his post :
"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.
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)?
Isn't the max penalty dependant on what the charges were? Those charges were in the hands of the procecutors. If they really did not wish to come across as threatening, they could have charged him with less (as far as I understand it).
Well, they need to charge him with something that they believe they can actually prove to the court. Furthermore, it is obviously in the interest of the prosecution to charge him with everything that they think they can prove, because if they pick just one and fail to prove it to the court they lose.
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.
Linus is not dead wrong. This should not be reduced to simple binary. To argue whether or not Linus is technically right or wrong seems pointless to me.
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!)
> Tangentially, it really bothers me that there is even such a job as Government Prosecutor.
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.
One thing that confuses me about this. Why couldn't Aaron raise money?
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.
Excellent question, and I'd like to know more about that angle.
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.
There seem to be two camps on HN, on this issue and on the case in general.
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.
Nice synopsis although I suspect faction A will claim you're misrepresenting them.
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.
> Nice synopsis although I suspect faction A will claim you're misrepresenting them.
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 "second camp" that you describe does not really understand the situation. 6 months is the plea bargain. If Aaron rejected that, which is the path he was taking, he was facing anything in the range from winning the case to likely the 6-7 years the prosecution was pushing for.
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.
Until Aarons' lawyer speaks up with evidence to the contrary Carmen Ortiz statement stands unchallenged. Much as I would like her to carry (or at least acknowledge) some actual responsibility for what she has helped causing there is a lot of room for interpretation here and saying 'she lied' in a legal sense is premature and may end up to be simply untrue.
Linus is a very clever guy but he's dead wrong about this.
I'm happy Linus is speaking out about this because he's a high profile person but it would be nice if he did his homework first, his words would then carry far more weight.
Ortiz has made several easily falsifiable statements, the fact that this has not happened - yet - means that at least in a technical sense she is possibly 'in the clear'. In a moral sense she has a ton of explaining to do and quite possibly some real culpability but law and lawyers deal in technicalities all the time.
She's attempting to weasel through a very narrow crack here but that's precisely what her profession and the eco-system she's operating in deal with.
We aren't lawyers, we can call her a liar if she appears to be one, especially if "there's a lot of room for interpretation." It's a huge joke that we're debating whether "the lawyer says they're not lying" is a good argument. What's problematic for her is that "the ecosystem she's operating in" aren't the only forces at work. Maybe she thought the age-old mechanism of press releases and who-gives-a-shit-what-lawyers-say would work the same as it always has, but that doesn't mean it has to be that way. Lawyers can't force us to operate in their ecosystem, and I have a feeling that they're exceedingly poor at existing in any other ecosystem, as best exemplified by the words of her husband, former IBM Websphere QA Stud Tom Dolan (i.e. one of us).
An additional complication is that her bosses simply might not care what she said and will keep her on the job with no changes, regardless. Deaf ears are still an option.
> Lawyers can't force us to operate in their ecosystem
Unfortunately we are doing exactly that. All of us are operating in an ecosystem crafted by lawyers. And so when we run into the boundaries set we will find lawyers or legally schooled people on all three sides of the table, the prosecution, our defense counsel and the judge.
They use our language but in a way that appears twisted and dishonest to laypeople. We pay - with huge sums of money and with time served - for the privilege.
Ortiz is using her position as a stepping stone to further her career. Aaron was to her a conveniently placed cobblestone that she could put her spiked heel on to make it to the next level. I'm pretty sure she regrets this, but only because it damaged her career chances.
I certainly wished that justice would be more about what's really best for society instead of about protecting special interest and selective prosecution but this is something that I did not need the Aaron Swartz case for to become aware of.
Ortiz is using her position as a stepping stone to further her career. Aaron was to her a conveniently placed cobblestone that she could put her spiked heel on to make it to the next level. I'm pretty sure she regrets this, but only because it damaged her career chances.
"Spiked heel"? Regret over a dead defendant "only because it damaged her career choices"?
You've been fairly rational in most of these discussions, but you're just egging on the mob here.
> You've been fairly rational in most of these discussions, but you're just egging on the mob here.
Feel free to disagree, I call them as I see them. I think her statement is cynical in the extreme, quite possibly to head off any claims by the family and I think that her whole 'tough' stance is just to further her own career goals.
If you have evidence to the contrary I'll be more than happy to adjust my position. Crocodile tears after the fact are not persuasive, not accepting any responsibility at all is very telling.
Well if you read through the post, especially Linus's follow-up comments, you'll find that his very point is this distinction between the truth of these technically correct, weasel-worded statements and the bigger picture.
Sentencing is ultimately up to the judge, and the truth is that Ortiz used the threat of "up to 35 years" to try to force a plea bargain. When Swartz refused a bargain which would have branded him a felon, as is his right, Ortiz's office drummed up additional charges.
Ortiz is likely technically correct when she says she never explicitly sought the maximum penalty for these extra charges she piled on. She is also deliberately evading the point by saying so, which is that her office absolutely threw the book at a kid for downloading some PDFs.
Imagine your kid comes home reeking of smoke. You ask him, anger in your voice, whether he was smoking with his buddies in the woods out back again. Kid cooly replies, "I wasn't smoking cigarettes."
Then you find a joint in his pocket. Kid was technically correct when he said he wasn't smoking cigarettes, but he was also "lying" in the sense that he sought to obfuscate and create a diversion from his wrongdoing by making such a statement.
That's a statement about intent. We do not know whether changing his mac address was in order to get around network blocks or for some other reason. The court would have tried to establish intent in the case but the case didn't get to court and we in the internet really don't have enough information do make a finding regarding intent ourselves.
We have Aaron's own manifestos and his own actions besides the MAC spoofing to establish intent.
Trying to seriously claim otherwise requires a special brand of word-wrangling and doublespeak, a brand that might entitle you to a job at the Boston U.S. Attorney's office, if the other comments here are any indication.
We do not know whether changing his mac address was in order to get around network blocks
Yes we do, because we aren't stupid, and neither is Aaron.
I could accept, for the sake of argument, that the very first time he changed his MAC it was because he was innocently trying to diagnose a network issue.
By the time JSTOR has cut off all of MIT and he is plugging into a physical port to work around the restrictions on the wireless network, it's no longer acceptable to honest people that he just thinks there was something wrong with the MIT network.
MIT didn't want him on their network. He thought his cause was worth bypassing their controls.
It's an indirect advancement. It's beneficial by expanding the circle of people engaged in the issue.
To some extent, it doesn't really matter what Linus proclaimed but he's helped here by tipping others over the edge of contributing to the discussion.
By that i mean, how many people who have great respect for Linus, previously sat quiet on the issue, absorbing the information, but now feel engaged enough to voice an opinion? I'd wager quite a few.
Good on him for not sitting quiet. A big public spotlight's exactly what's needed on this issue. Linus just helped cast the beam a little wider.
I like Linus and think Ortiz is an idiot[1] but he messed up on this one. The "faces up to 35 years" is obviously not a quote from Ortiz.
[1] Did Ortiz really not understand that pretty much everything Swartz did in in the second half of his life was both prolific and for the greater good on a very large scale?
Are you kidding me? She/her office understood, I'm sure, that he thought he was doing things for the greater good. That doesn't mean that he is legally allowed to nor that she is barred from prosecuting him because his intentions were so pure. Not everyone when disagrees with your favored political stance on am issue is too dumb to understand it. Some just disagree. Calling her am idiot on this context is simply without any basis
Honestly, I'm not sure if any story since a started reading this site has resulted in such a high proportion of minimally thought-out comments.
> She/her office understood, I'm sure, that he thought he was doing things for the greater good.
I have not seen any proof or acknowledgement of that.
> That doesn't mean that he is legally allowed to nor that she is barred from prosecuting him because his intentions were so pure.
This is true, and nobody has said that she should not have prosecuted. The things that are being said are:
- this prosecution was subject to some discretionary powers
- those powers were to some extent abused
- in other cases, arguably more serious Ortiz has used her
discretionary powers to *not* pursue cases
> Not everyone when disagrees with your favored political stance on am issue is too dumb to understand it. Some just disagree.
Pot, kettle, etc. You also do this.
> Calling her am idiot on this context is simply without any basis
If she did not understand this she really is an idiot, I have no proof either way, you claim that she understood but you offer 0 proof.
> Honestly, I'm not sure if any story since a started reading this site has resulted in such a high proportion of minimally thought-out comments.
It has also resulting in a large number of very well thought out comments, not all of which you may agree with. Let's keep the meta discussion out of it.
Which other more serious cases did Ortiz choose not to pursue and why? Perhaps there wasn't good enough evidence to pursue them?
I really don't think she's an idiot... I know we're honor-bound not to like her, but we're calling her an idiot because we have no proof to the contrary? What...?
> Which other more serious cases did Ortiz choose not to pursue and why?
There were a bunch of pharmaceutical cases where Ortiz used her discretion in favor of the defendants.
> Perhaps there wasn't good enough evidence to pursue them?
Perhaps.
> I really don't think she's an idiot... I know we're honor-bound not to like her, but we're calling her an idiot because we have no proof to the contrary? What...?
Notice the 'If' at the beginning of that sentence please.
I noticed the if. It's still a rather bold statement.
"Soandso is an idiot."
"Do you have any proof?"
"If they think this, then they're an idiot. Have you provided evidence to the contrary?"
It's like saying Stephen Hawking is an idiot if he thinks the holocaust never happened. Can you provide me with evidence that Stephen Hawking thinks the holocaust happened? Is it really okay to call someone an idiot on a conditional if you have zero proof?
> I have not seen any proof or acknowledgement of that. ... If she did not understand this she really is an idiot, I have no proof either way ...
Nobody has to prove things that should be the default assumption. You should assume that when someone has been extensively investigated by a law office, that office understands at least the most superficial, obvious facts of the case. Likewise, it is the default stance that a person at a high station in a technical field isn't an idiot. I don't have to prove it. There has to be evidence to contradict it before the accusation ought to be thrown about.
> Pot, kettle, etc. You also do this.
I honestly can't recall an occasion where I have accused someone of being stupid for disagreeing with my political stance on this site or in any other forum where you'd have cause to call me out on it. But, for the sake of argument, let's assume that some time in the past two and a half years I've made that mistake. The hypocrisy accusation bears no weight when the accused is not currently endorsing a stance that runs contrary to their action. It is wholly irrelevant that at some point in time I have violated some part of my own moral code.
> Let's keep the meta discussion out of it.
I think the meta-discussion becomes appropriate when baseless accusations start being accepted without evidence simply because of the political stance of the majority of the site participants. It seems to me that HN is uniquely unsuited to approach this particular issue rationally, and I have provided evidence to that end. I will not keep the meta-discussion out of it.
At least Linus commented on this very sensitive issue. Not sure why PG has not said anything publicly when he knew and has worked with Aaron during Reddit.
All I meant was PG is pretty vocal about most things related to hackers / company founders etc. With Aaron's sad news being on the front page of HN for the past 3-4 days, i would have thought he had something to say about the issue. I understand he has no obligation ...
> i would have thought he had something to say about the issue.
I'm sure he does. But that does not mean that what he has to say is for public consumption. Also, given PGs closeness to Aaron in the past he may very well simply not be in the mood. Give the man some space.
I'm not sure PG's opinion has much weight in the realm of law and justice. It certainly does with startups and business models.
Linus on the other hand is known for speaking out on issues of law. That probably started in the days of the SCO fiasco, but he has always been vocal and I'm glad to hear him speak out on this issue.
For all the posts saying Linus is wrong, which he may well be technically, consider this from a layman's perspective.
Ortiz recently:
"At no time did this office ever seek ... maximum penalties under the law."
Justice.gov previously:
"SWARTZ faces up to 35 years in prison..."
At a minimum it's a bad PR screw-up on their part and they're backpedaling because their "make us look tough" press releases have backfired.
Most people vaguely familiar with the case would think there is a threat of a 35 year sentence, as many recent posts on HN indicate. Would Aaron & his legal team think so too? Probably not.
Agreed, unfortunately this is a legal case and it probably won't be judged from a layman's perspective. That doesn't make it any less bad but it does give Ortiz some wiggle room and it will no doubt be used to salvage what they can from this situation. The conversation should therefore not revolve around legal technicalities but around morality and around systemic issues. If this is 'technically correct' then there is an even bigger problem than if this is just (and I use that word knowing full well this is no small matter) about Aaron.
Saying in a press release that Mr. Swartz "faces up to 35 years in prison" is not the same as actively seeking the maximum penalty. It's likely that the original press release was meant to add credibility to the prosecution, in the eyes of the general public -- to highlight that, in view of the law, what the defendant was charged with was no small matter.
I really don't see how those two statements are contradictory (much less a "lie")
- the defendant is charged with crimes that carry a maximum sentence of 35 years
- the prosecution offers a deal of 4-6 months
This whole affair is an immense tragedy but comments such as this one from Linus add an element of farce that it really doesn't need.
Indeed words have a meaning. If you issue a statement that "the defendant is charged with crimes that carry a maximum sentence of 35 years", then you inherently quantify the gravity of the defendant acts as a 35 year jail time crime. If, instead, you issue a statement that "we are seeking to put the defendant in jail for 6 months", then you quantify the gravity of the defendant acts as a 6 months jail time crime. These are not nearly the same and Carmen Ortiz never issued the second statement in public on the record.
We may further argue that this is how "everybody does this" and "she can't weaken her bargaining hand". To me, a justice system that depends on bargaining instead of truth feels fundamentally wrong. That is the deep issue at stake, and not the political fortunes of one Carmen Ortiz.
Consider an analogy. When we reason about the performance of algorithms, it's important to know both the worst case performance and the typical case. They're two separate bits of information.
That might be true if it wasn't for the fact that every. single. set. of charges files gets a similarly-worded press release. "So and so was charged with violations of foo, bar, and baz today, if convicted on these charges he faces a fine of up to $X00,000 and Y years in prison".
Do you think releasing a press release of 35 years possible imprisonment for such a petty crime (if you consider this a crime at all) is a correct act?
Please do not give standard practice bullshit.
If its standard practice, someone has to change it, who else will identify and change it if it not for people like in her position.
I'm not an attorney, but I would imagine even if Carmen Ortiz were completely at fault she would never admit as much and would never apologize. Why? Because she could open herself up to a civil lawsuit.
This just speaks so highly of the state of our society. Even if you're at fault taking the moral high ground, owning up and apologizing means you could have the rest of your life ruined. Granted in this context it's a highly sensitive issue as Aaron lost his life, but the fact our culture is so highly litigious makes me sad.
I read that (interesting piece, I did not know this bit of history) and could not find any references to his prosecutors behavior, could you please point out the reference for me?
From Aaron's Post: "Why did doctors so stubbornly reject Ignaz Semmelweis? Well, imagine being told you were responsible for the deaths of thousands of your patients. That you had been killing the people you were supposed to be protecting. That you were so bad at your job that you were actually worse than just giving birth in the street."
Why can't Ortiz admit fault? If her and her department have made it common practice to do heavy handed plea bargaining and getting people to accept disproportionate punishments, like was revealed in Aaron's case then they are guilty of much more injustice than what they did to Aaron.
They deny they did anything wrong in the face of evidence that says otherwise because it would make them culpable in a much wider scope. This is the core behavior described in Aaron's post.
As a prosecutor, especially a government prosecutor, they shouldn't use every methods a judge lets them get away with when they are clearly unethical and lead away from justice. If this is now business as usual for the DOJ then, like the doctors who didn't wash their hands in Aaron post, they have been guilty of grave misconduct for a while now.
This just speaks so highly of the state of our society. Even if you're at fault taking the moral high ground, owning up and apologizing means you could have the rest of your life ruined.
If she doesn't feel bad about causing the death of Aaron Swarz, she should not apologize. If she feels bad enough that she needs to apologize, I doubt she would worry about being ruined financially ("man, I basically killed this man with my irresponsible actions, how can I live with that?").
I suspect Ortiz's statement was absolutely true but missing the point to the extent of being misleading. No they may not have sought the maximum but in trial they would still have sought years in jail so the threat of 7 years is still terrifying, harsh and unjust.
Don't let the discussion get too focussed on the maximums as you will give Ortiz a way out. The real threat was still too much (More than twelve times what Ortiz says is reasonable as the offer) and the idea of pleading guilt to 13 felonies possibly as unappealling as the 6 month prison term attached.
This sounds indeed defamatory and Linus was once again too impulsive. Not sure if the target will be as complaisant as his other victims.
However the situation is indeed very shocking and Carmen Oritz's public reaction is also in my view extremely disappointing and shocking.
Apparently all this was an attempt to use a "big mistake" [1] of Aaron as a leverage for her self promotion with political goals and it backfired in a way she didn't anticipate.
This demonstrate to the whole world the internal "corruption" of the American justice system. Apparently there is no shame about it and no intent to change it. Probably too many influent people profit by various indirect leverages from this "state of art" and money is probably not the least of them.
Her childish response and pseudo justification it's not my fault, I didn't do anything wrong is appalling from a person with such high responsibility.
A more appropriate response is the one from the MIT director: what happened is a catastrophe and wrong because it should not have happened, we start an investigation to clarify our role in it, what we may have done wrong, what we can do to avoid that this happen again and we will make the conclusion public.
In her public comment Carmen Ortiz demonstrate her lack of honesty, objectivity and sense of justice and in short intelligence. Unfortunately it seam that people can get along with the claim she made by the benefit of complaisance of other mediocre people. Mediocracy: +1, Democracy : -1
[1] It is suggested it was a conscious disobedience meant to be a provocative political act to draw attention on a society problem without intent to harm anybody or for selfish interests like money or a political self promotion
I think Ortiz is painfully aware that any words she says will be parsed extremely carefully and that if she so much as leaves a tiny surface with grip on it that surface will be eventually found and used to hit her as hard as the situation allows. Any admission, any implicit acceptance of responsibility, even a moral one could come back to haunt her in a possible civil suit. She's already fighting that battle today, even though the first shot may never be fired. To do otherwise would be morally honorable but from a legal point extremely bad strategy.
This is the world we have all crafted and Ortiz is still in gameplay mode. If she could accept her own responsibility in this she'd likely never have made it to the position she is in, weaseling through cracks to avoid culpability is second nature in politics.
These thoughts made me conscious of the difference in the "truth seeking process" of science and justice. In science, there is a natural and strong incentive to be objective and honest (cf. MIT's open comment on Aaron's death). Unfortunately it doesn't seem to be the case in the justice system regardless of the country. Why is that ?
Could it be because the justice actors are considered not accountable for their "errors", because there is no credibility karma in play like in science, because a final decision must be made in a fixed time frame even if it can't be made on the "real truth" ?
The justice system looks so middle age compared to science. And I already think in frustration that there is still plenty of room to make science more efficient in its truth seeking process. Lowering access barrier to scientific research knowledge is one of them !
In my view, just because 'usually' they don't seek maximum penalty it doesn't mean he doesn't get it, as suggested itself by her office the final call is not hers.
I'm glad more and more people are coming out on this issue.
Removing / blaming one person without reforming the system is called a "purge" as in Stalinist Purge
Please fix the system not the blame
Suggestion: are plea bargains public record?
If so can we parse and publicise them? Would it be interesting to know the ratio of years charged vs years pleaded - especially by race and offence and state?
Edit: no not trying to compare this in degree with marching thousands to death in gulags - just we should focus on fixing a justice system that basically tries to avoid the courts because of those awkward and time consuming human rights. I mean imagine if we had to deal with terrorists instead of copyright violators - we might skip plea bargaining and do something silly in Cuba. Luckily the rights of the individual are paramount in the worlds greatest democracy - otherwise we could all be in trouble
The result of any charges are in the public record, and since no one just pleads guilty without trying to get something out of the deal, you can just analyze every guilty plea and the sentence suggested by the prosecution and assume it's a plea bargain.
Is this then a Freedom of Information request from a citizen in each state?
Basically we seem to be certain that plea bargains are both denying large numbers of people trials and doing so with draconian threats that make both guilty and Innocent afraid
It makes a good narrative - it would be nice to know it is true
And it would be nicer to know it in real time (ie putting court records into electronic form)
"[W]hen the system isn’t working, it doesn’t make sense to just yell at the people in it — any more than you’d try to fix a machine by yelling at the gears. True, sometimes you have the wrong gears and need to replace them, but more often you’re just using them in the wrong way. When there’s a problem, you shouldn’t get angry with the gears — you should fix the machine."
How does firing one person change the system - do we have a manifesto of change, a set of coherent demands ? A vision of the future that we have all agreed upon?
Yes the anger surrounding this will start some change - but do we want individual prosecuters to choose that change? - is not the more responsbile approach to start a locus for public debate and present our lawmakers with a consensus opinion - you know, lobbying.
Removing / blaming Aaron Swartz without reforming the corrupt system of copyright laws that caused his offense in the first place was exactly what Stalinist Carmen Oritz wanted.
It is a fact that Carmen Oritz is a snake and is not fit to serve in the United States government.
4. Looking up 20 Herrick Dr, it looks like a nice house with a pool in a fancy neighborhood. Thomas Dolan is an IBM executive.
5. If you Google for: carmen ortiz "20 Herrick Dr"
then you'll see a snapshot of a website on indybay.org, which has since been taken down for violating their terms of use. But in the snapshot provided by Google you can see the text "Carmen Ortiz contact. Name: Carmen Milagros Ortiz DOB: 01/05/1956. Address: 20 Herrick Dr Milton, MA", and Google shows this snapshot as dated Jan 17th, shortly after the Aaron Swartz controversy erupted.
What do you think this will possibly achieve? How many times has the internet lynch mob been misguided, for you to realize that this is a shitty way to approach matters?
Not only that, but if you want to reiterate Linus' statement (as you seem to be suggesting, to Ortiz herself), at least realize that he made a fool of himself here. The two statements don't contradict themselves, and going from that to a "lie" is counter-productive to the discourse that needs to be held. Suggesting to harass individuals based on flaky grounds (or really, in general), also not productive.
>> What do you think this will possibly achieve? <<
I'll put myself in Ortiz's shoes.
I've just pursued a federal case in which the invested parties no longer are interested in continuing. I do it with a fervor that is unwarranted compared to the severity violation. The accused kills himself out of what appears to be fear.
Then a shit-storm happens. My information is everywhere. I'm having to change everything online because it's under constant attack. Forget about the phone, it's only really good for outgoing calls now. I can't do my job as effectively anymore because I'm harried by an online wolf-pack.
I'm not saying that's bad or that's good, I'm saying, that's what it's intended to achieve and that's a possibly what Ortiz is experiencing now.
My personal opinion is maybe that's not so bad. I would hope that it could serve as a warning to the people who decide to become part of the federal government that should they approach they're duties with a large large dose of humanity. They're people, we're people, and careless anti-social behavior should be met with vehement condemnation by the populace.
You personally may have destroyed any credibility amongst the general public that this "cause" ever had.
It quickly went from improving the legal system in the wake of the untimely suicide of Aaron Swartz to a frothing Internet lynch mob, complete with Guy Fawkes masks and now "doxxing" Federal prosecutors just like the mafia dons and drug lords of 25 years ago.
If you're trying to relate CFAA reform with kingpins and crime lords in the public mind, you've started off on the right foot!
I don't understand why people don't get the LAW should have been on trial, not Aaron's actions.
Aaron was an activist. He purpose broke what he considered unfair laws and tried to set free information he thought should be free (or was technically free in the first place).
I think he committed suicide because he thought he was going to be Bradley Manning-inged. I wish he would have waited a little longer and had a little more hope but it's easy to be cool and logical from a comfy chair, meanwhile his mind was facing darkness.
> "I think he committed suicide because he thought he was going to be Bradley Manning-inged. I wish he would have waited a little longer and had a little more hope but it's easy to be cool and logical from a comfy chair, meanwhile his mind was facing darkness."
Both agreeing and disagreeing here...
I don't get how everyone assumes that Aaron was making a logical decision when he killed himself. It's very possible he was depressed and wasn't thinking clearly at all. It's also very possible that this trial made him depressed. But to assume that he was thinking reasonably about the circumstances and decided it was best not to live is a huge assumption. Depression completely warps reality.
Also, I'd like to add that given this, I think we're all being a bit unfair to the prosecutor. Sure, she overstepped the bounds of reason. But it's very possible she triggered an underlying mental illness in Aaron. Yes, she is partly to blame. But so is everyone else. MIT didn't step up. But also his loved ones near him didn't do enough to help. It's quite simply a tragedy. Painting Ortiz as a murderer is as wrong a painting Swartz as a felon deserving of a 35 year prison sentence.
> It's very possible he was depressed and wasn't thinking clearly at all.
I'd take that as a given.
> It's also very possible that this trial made him depressed.
I think to think otherwise would be to ignore plenty of evidence to the contrary.
> But to assume that he was thinking reasonably about the circumstances and decided it was best not to live is a huge assumption. Depression completely warps reality.
Yes. And this is the bit for which Aaron carried some responsibility, if you're prone to depression you should not position yourself in situations where extreme stress and threats to your personal freedom might result. Being a person prone to depression and being an activist that takes very visible steps antagonizing powerful entities is not something that you should want to combine in the same person. That didn't stop Aaron from being who he was though and in some sense he seems to have felt driven to do these things. Note that I say this as a strong supporter of everything that Aaron stood for and fought for.
> Also, I'd like to add that given this, I think we're all being a bit unfair to the prosecutor.
No we're not. She's been using people to further her career. This is disgusting.
> But it's very possible she triggered an underlying mental illness in Aaron.
She pushed him to the brink and then across it. There is no excuse for such behavior.
> Yes, she is partly to blame. But so is everyone else.
This we agree on.
> MIT didn't step up.
They did the opposite, they pushed for punishment including jail time according to most accounts.
> But also his loved ones near him didn't do enough to help.
You know NOTHING about that and should refrain from such comments.
> It's quite simply a tragedy.
No, it is an utter failure of the judicial system.
> Painting Ortiz as a murderer is as wrong a painting Swartz as a felon deserving of a 35 year prison sentence.
Nobody is painting Ortiz as a murderer, and she painted Swartz as a felon deserving of a 35 year prison sentence and now tries to make it seem as if that was just business as usual. This madness should end.
>> But also his loved ones near him didn't do enough to help.
>You know NOTHING about that and should refrain from such comments.
If you suspect someone is going to harm him/herself, you call 911 and explain as much. They immediately come and forcibly lock the person in a mental institution against their will until a doctor or board decides they're no longer a threat for suicide.
Also, I'm not defending Ortiz in any way. What I am saying is that a lot of people are overreacting. Yes, she's a terrible prosecutor, went way overboard and likely played a role in a young man's death. But to say that he "was killed by the government" (Aaron's father said that) and then for us to focus our anger on Ortiz is absurd. Sure, I can accept the government had a role in his death. But Ortiz is operating within the system that exists, enforcing ToS-violation-is-a-felony precedent that already exists, using multiple counts to force a plea that all prosecutors do.
> If you suspect someone is going to harm him/herself, you call 911 and explain as much.
Again, you make huge assumptions about the situation. Let me enumerate a few of them:
- you assume that Aaron let on he was about to do this
- you assume that there was some opportunity to stop him
- you assume that Aaron wasn't clever enough to do whatever he wanted
- you assume that no such effort was made but failed
To make a long story short: if someone really wants to commit suicide they will manage to do so, sometimes right under the noses of those that care without them suspecting anything.
> But Ortiz is operating within the system that exists, enforcing ToS-violation-is-a-felony precedent that already exists, using multiple counts to force a plea that all prosecutors do.
Indeed. And she chose that role out of her own free will. 'My hands were tied' doesn't cut it with me, we all make our own decisions, every day.
Ortiz is not responsible for Aaron's death, even if she lied.
The real problem is the how the prosecution system is based on terror instead of on justice. Laws can be made less amenable to be used to terrorize, but as long as the deep roots of the system are based on terror, changing laws will not suffice.
The aim should be to fix the system and the laws that make the system, not only to fix each overreaching law at a time.
This besides the issue of whether or not making Ortiz pay is adequate.
> Ortiz is not responsible for Aaron's death, even if she lied.
She is not fully responsible but she - and Heymann - at least carry partial responsibility for pushing him as far as they did, and consequentially (at least in my opinion) carry partial responsibility for Aaron's death.
In order to fix the judicial system, we need to fix the underlying system which molds it. Unfortunately, this very system encourages those in power to protect the status quo for personal status instead of societal. Thus, we find ourselves in a system which incentivizes egoism over the accessibility of information.
Ortiz is just doing her best to make us think that Aaron wasn't being threatened with massive jail time the same way she lead Aaron to believe that he was. By not saying it directly and letting innuendo and suggestion do the talking.
Linus is a programmer. Booleans can't have the value "dishonest". False is the closest approximation. Cut the man some slack.
i don't get all the fuss - and i've been following this story for a little while now, trying to work out exactly what is so important about this all... considering how many worse things are going on than self entitled pricks topping themselves to avoid being punished by law (whether excessive punishment or not).
this may be insensitive, but why don't school shootings result in the same kind of critical look at gun laws?
or killing pakistani civilians with drones in breach of international law
or the idf killing more palestinian /children/ than israelis have ever died at the hands of palestinians, which is indirectly funded by 'aid' money totalling some $3 billion from the US at a time when the country is suffering economic problems and is cutting benefits for its own citizens that cost a lot less.
trade embargo against cuba because of a revolution that installed a government chosen by people through a fight for freedom that happened to not align with the ideology of the administration in the 60s
pick one, they all kill more people and are vastly more important and worth spending your time being angry at your government for.
this is a piffling tragedy of people who can't deal with first world problems... i shed no tears for anyone involved.
I really do not understand why people are trying to look at smaller issues such as who is right or wrong, whether she went back or not, whether its normal to follow such practices to extort plea etc.
I do not think (correct me if I am wrong) the laws ever say that lawyers have the permission to extort pleas even though that's what is going on everywhere.
And if as an appointed office holder and given such responsibility, you have to understand that nothing sort of extortion should ever undergo and if you could not do that, you are not fit to run the office. Simple. Period.
How hard is that for anyone to understand. Please don't give standard practices bullshit.
The alternative to plea bargaining is generally that everyone convicted gets sentences in line with the Federal Sentencing Guidelines. No one ever seems to believe this but the intention is for there to be a better result for both sides.
I'll admit that dropping the option of plea bargains would less to lower conviction rates (though this is not necessarily a good thing, depending on your mindset). However should Aaron's case have gone to trial it's very likely IMO that it would have lead to a conviction and you really would be talking about anywhere between 1-7 years in prison instead of 4-8 months. That sword cuts both ways.
Sorry, but I can't go with Linus on this one. The purpose of that press release was to educate the public about the case, including the crime of which Swartz was accused, and stating the maximum penalty for the crime is part of that. It does not imply that the maximum penalty is being sought.
Swartz was a talented man, no doubt about it, but he became a zealot, and zealots do stupid things. When he realized that he wasn't going to escape justice because ZOMGAARONSWARTZ -which is basically what JSTOR tried to do, and the Justice Department wasn't buying that because it would have been, in a word, unjust- he did something rash, and that brings us to today. He was not a saint, he was not a "light of the world, put out too soon", and he certainly shouldn't be elevated to martyr status.
JSTOR decided not to pursue with the litigation because they realized that Aaron had a point - it was not fair to lock up the wealth of knowledge and restrict access to the public who payed for them with their tax dollars, not because ZOMGAARONSWARTZ
There are many things to criticize about the universe, but the standard form language on US Attorneys' press releases is probably not the biggest thing we should be worried about. Linus, as he often does, is speaking too confidently and too hastily.
And the press releases always state the statutory maximum, which as I and many others have explained, Aaron was never actually threatened with. His lawyers knew that. He had to know it. Lessig either knew it or should have known. The only reason we're talking about "35 years" is because of Lessig's irresponsible PR.
I'm trying to think of a hacking analogy. Imagine if you write a routine for loop with an int increment and someone, trying to understand the code, asks "wait, how many times can this run?" And you respond with INT_MAX. In most situations, that would be a misleading, borderline autistic response, with no relationship to the real world in the normal case.
Dr. Lessig knew it too. In fact he knew that Aaron had been offered a plea, and knew that the jail time must not have been too extensive because he knew that the reason Aaron would not take the deal is that it would involve pleading guilty to a felony.
I don't want to accuse Dr. Lessig of bad PR though, as much as using the same wording the prosecution uses (although it's no secret how Dr. Lessig feels about this case).
Hacking analogy: if you compile and run this program:
main() {
int i;
i = i++;
}
...the results are undefined. In theory (and the C FAQ has stated this for decades) the compiler can make a program that erases everything on your hard drive and then has the sound card start swearing at you.
But if you're being advised by an expert in the field, they'll tell you that in reality, the results aren't going to be anything like that.
A more charitable (and possibly more far-fetched) interpretation is that Ortiz has a different agenda in talking to the press than she does when negotiating with opposing lawyers.
Maybe she intended to make herself look merciful when agreeing to the much smaller punishment. The argument that the experienced defense lawyers were influenced by press releases rather than what they were actually being offered by the prosecution seems a little weak.
Anyone saying he's wrong about the intent and effect of the press release statement, do you think reading a statement like that about yourself isn't going to influence your thinking? Their press releases were intended to drum up public support and paint him in a certain light. That most definitely has an effect on a defendant, and it is most certainly intentional. Linus is right.
Further, when you're in the wrong (even partly), the only appropriate thing to do is to apologize. Not defend or justify or half-apologize with an explanation to try to gain sympathy, but to man up and say you're sorry. Anything less from this prosecution team is pathetic and sickening.
208 comments
[ 5.3 ms ] story [ 243 ms ] threadThe only things that matter to these maximalist dickholes is:
* successful conviction * maximum penalty they can achieve with what they have * if you don't take the plea bargain, make you regret it
If they really hate you, they put people on 'document generation duty', which is cheaper than document review, and throw hundreds of thousands of documents at you during trial. They find the most expensive venue for you, and if you have an employer that has somehow stuck by you this long, they coerce it into letting you go.
The entire goal of this sort of thing is to deprive people of a chance to actually go to trial and stand a chance of acquittal, particularly when gaining a conviction 'honestly' is going to be difficult or expensive.
You can still find this entirely too long.
Does it matter who wrote it? It came from her office, she approved it, and therefore she said it.
Are either of those clauses accurate?
In an affadavit... yes...?
In an election... maybe?
As a press release from a prosecutors office?
Probably not.
Either you like Mrs. Ortiz or not, no one is really going to make their decision based on whether or not Aaron Schwartz believed he was facing 6 years, or 35 years.
He was looking at 6 months tops, which means serving 2 tops as a first time offender, which means probably out in a month, which means probably a suspended sentence. My advice to anyone thinking about killing themselves over spending 35 years in jail... stop watching Oz, visit someone actually in a minimum security prison, ask them what it's like, take a plea for 4 months, get some exercize, go to bed early, eat some shitty food and enjoy all the ammenities club fed has to offer for a month or two.
I think he was already depressed, the charges were weighing on him, and so were the legal fees.
If Aaron decided not to accept the guilty plea, his option was 6-7 years and not 6 months. After reading everything that has been written about him, I would assume that he won't choose a 6-month sentence in exchange for pleading guilty to liberating information.
Had the prosecutors gotten convictions on each group of charges they filed they would have pushed for 6-7 years (they have to, otherwise why take the plea?). The Federal sentencing guidelines would have recommended a sentence in the range of 1-2 years (according to Jennifer Granick of all people, who is decidedly not a fan of what happened to Aaron Swartz).
The final sentence would have been up to the judge but given the circumstances (rich; white; well-respected; first-time offense; relatively innocuous as far as effect) it's extraordinarily unlikely he would have received more than the FSG (and if he did, it would help out his case immensely on appeal).
> for pleading guilty to liberating information.
If liberating information is his goal, why wouldn't he be proud and honored to wear that particular Scarlet Letter? Do you think those branded by the Nazis for guarding Jews would be anything other than proud to show to their children and grandchildren the living proof of their taking a righteous stand when others were afraid?
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.
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.
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.
http://news.ycombinator.com/item?id=5072066
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.
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.
The word I use for that is "lie".
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.
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.
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?
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
"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.
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.
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.
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.
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.
Linus is a very clever guy but he's dead wrong about this.
I'm happy Linus is speaking out about this because he's a high profile person but it would be nice if he did his homework first, his words would then carry far more weight.
Ortiz has made several easily falsifiable statements, the fact that this has not happened - yet - means that at least in a technical sense she is possibly 'in the clear'. In a moral sense she has a ton of explaining to do and quite possibly some real culpability but law and lawyers deal in technicalities all the time.
She's attempting to weasel through a very narrow crack here but that's precisely what her profession and the eco-system she's operating in deal with.
An additional complication is that her bosses simply might not care what she said and will keep her on the job with no changes, regardless. Deaf ears are still an option.
Unfortunately we are doing exactly that. All of us are operating in an ecosystem crafted by lawyers. And so when we run into the boundaries set we will find lawyers or legally schooled people on all three sides of the table, the prosecution, our defense counsel and the judge.
They use our language but in a way that appears twisted and dishonest to laypeople. We pay - with huge sums of money and with time served - for the privilege.
Ortiz is using her position as a stepping stone to further her career. Aaron was to her a conveniently placed cobblestone that she could put her spiked heel on to make it to the next level. I'm pretty sure she regrets this, but only because it damaged her career chances.
I certainly wished that justice would be more about what's really best for society instead of about protecting special interest and selective prosecution but this is something that I did not need the Aaron Swartz case for to become aware of.
"Spiked heel"? Regret over a dead defendant "only because it damaged her career choices"?
You've been fairly rational in most of these discussions, but you're just egging on the mob here.
Feel free to disagree, I call them as I see them. I think her statement is cynical in the extreme, quite possibly to head off any claims by the family and I think that her whole 'tough' stance is just to further her own career goals.
If you have evidence to the contrary I'll be more than happy to adjust my position. Crocodile tears after the fact are not persuasive, not accepting any responsibility at all is very telling.
Sentencing is ultimately up to the judge, and the truth is that Ortiz used the threat of "up to 35 years" to try to force a plea bargain. When Swartz refused a bargain which would have branded him a felon, as is his right, Ortiz's office drummed up additional charges.
Ortiz is likely technically correct when she says she never explicitly sought the maximum penalty for these extra charges she piled on. She is also deliberately evading the point by saying so, which is that her office absolutely threw the book at a kid for downloading some PDFs.
Imagine your kid comes home reeking of smoke. You ask him, anger in your voice, whether he was smoking with his buddies in the woods out back again. Kid cooly replies, "I wasn't smoking cigarettes."
Then you find a joint in his pocket. Kid was technically correct when he said he wasn't smoking cigarettes, but he was also "lying" in the sense that he sought to obfuscate and create a diversion from his wrongdoing by making such a statement.
And repeatedly going around network blocks in order to obtain those PDFs...
Trying to seriously claim otherwise requires a special brand of word-wrangling and doublespeak, a brand that might entitle you to a job at the Boston U.S. Attorney's office, if the other comments here are any indication.
Yes we do, because we aren't stupid, and neither is Aaron.
I could accept, for the sake of argument, that the very first time he changed his MAC it was because he was innocently trying to diagnose a network issue.
By the time JSTOR has cut off all of MIT and he is plugging into a physical port to work around the restrictions on the wireless network, it's no longer acceptable to honest people that he just thinks there was something wrong with the MIT network.
MIT didn't want him on their network. He thought his cause was worth bypassing their controls.
She's now politically damaged, and a liability to the Obama administration that appointed her. She should resign.
How does this advance the debate?
To some extent, it doesn't really matter what Linus proclaimed but he's helped here by tipping others over the edge of contributing to the discussion.
By that i mean, how many people who have great respect for Linus, previously sat quiet on the issue, absorbing the information, but now feel engaged enough to voice an opinion? I'd wager quite a few.
Good on him for not sitting quiet. A big public spotlight's exactly what's needed on this issue. Linus just helped cast the beam a little wider.
[1] Did Ortiz really not understand that pretty much everything Swartz did in in the second half of his life was both prolific and for the greater good on a very large scale?
Honestly, I'm not sure if any story since a started reading this site has resulted in such a high proportion of minimally thought-out comments.
I have not seen any proof or acknowledgement of that.
> That doesn't mean that he is legally allowed to nor that she is barred from prosecuting him because his intentions were so pure.
This is true, and nobody has said that she should not have prosecuted. The things that are being said are:
> Not everyone when disagrees with your favored political stance on am issue is too dumb to understand it. Some just disagree.Pot, kettle, etc. You also do this.
> Calling her am idiot on this context is simply without any basis
If she did not understand this she really is an idiot, I have no proof either way, you claim that she understood but you offer 0 proof.
> Honestly, I'm not sure if any story since a started reading this site has resulted in such a high proportion of minimally thought-out comments.
It has also resulting in a large number of very well thought out comments, not all of which you may agree with. Let's keep the meta discussion out of it.
I really don't think she's an idiot... I know we're honor-bound not to like her, but we're calling her an idiot because we have no proof to the contrary? What...?
There were a bunch of pharmaceutical cases where Ortiz used her discretion in favor of the defendants.
> Perhaps there wasn't good enough evidence to pursue them?
Perhaps.
> I really don't think she's an idiot... I know we're honor-bound not to like her, but we're calling her an idiot because we have no proof to the contrary? What...?
Notice the 'If' at the beginning of that sentence please.
I noticed the if. It's still a rather bold statement.
"Soandso is an idiot." "Do you have any proof?" "If they think this, then they're an idiot. Have you provided evidence to the contrary?"
It's like saying Stephen Hawking is an idiot if he thinks the holocaust never happened. Can you provide me with evidence that Stephen Hawking thinks the holocaust happened? Is it really okay to call someone an idiot on a conditional if you have zero proof?
Nobody has to prove things that should be the default assumption. You should assume that when someone has been extensively investigated by a law office, that office understands at least the most superficial, obvious facts of the case. Likewise, it is the default stance that a person at a high station in a technical field isn't an idiot. I don't have to prove it. There has to be evidence to contradict it before the accusation ought to be thrown about.
> Pot, kettle, etc. You also do this.
I honestly can't recall an occasion where I have accused someone of being stupid for disagreeing with my political stance on this site or in any other forum where you'd have cause to call me out on it. But, for the sake of argument, let's assume that some time in the past two and a half years I've made that mistake. The hypocrisy accusation bears no weight when the accused is not currently endorsing a stance that runs contrary to their action. It is wholly irrelevant that at some point in time I have violated some part of my own moral code.
> Let's keep the meta discussion out of it.
I think the meta-discussion becomes appropriate when baseless accusations start being accepted without evidence simply because of the political stance of the majority of the site participants. It seems to me that HN is uniquely unsuited to approach this particular issue rationally, and I have provided evidence to that end. I will not keep the meta-discussion out of it.
I find your comment bizarre.
> this very sensitive issue.
> Not sure why PG has not said anything publicly
Why should PG talk publicly about the death by suicide of someone he knew?
(2) this must have hit PG like a freight train, I barely knew Aaron and I'm still reeling from it
(3) if and when PG speaks is up to him, he's certainly not under any obligation
I'm sure he does. But that does not mean that what he has to say is for public consumption. Also, given PGs closeness to Aaron in the past he may very well simply not be in the mood. Give the man some space.
Linus on the other hand is known for speaking out on issues of law. That probably started in the days of the SCO fiasco, but he has always been vocal and I'm glad to hear him speak out on this issue.
Ortiz recently: "At no time did this office ever seek ... maximum penalties under the law."
Justice.gov previously: "SWARTZ faces up to 35 years in prison..."
At a minimum it's a bad PR screw-up on their part and they're backpedaling because their "make us look tough" press releases have backfired.
Most people vaguely familiar with the case would think there is a threat of a 35 year sentence, as many recent posts on HN indicate. Would Aaron & his legal team think so too? Probably not.
Saying in a press release that Mr. Swartz "faces up to 35 years in prison" is not the same as actively seeking the maximum penalty. It's likely that the original press release was meant to add credibility to the prosecution, in the eyes of the general public -- to highlight that, in view of the law, what the defendant was charged with was no small matter.
I really don't see how those two statements are contradictory (much less a "lie")
- the defendant is charged with crimes that carry a maximum sentence of 35 years
- the prosecution offers a deal of 4-6 months
This whole affair is an immense tragedy but comments such as this one from Linus add an element of farce that it really doesn't need.
We may further argue that this is how "everybody does this" and "she can't weaken her bargaining hand". To me, a justice system that depends on bargaining instead of truth feels fundamentally wrong. That is the deep issue at stake, and not the political fortunes of one Carmen Ortiz.
Shame if anything, you know, were to happen to it."
That is how this whole wording of 2011 comes across to me.
- the defendant is charged with crimes that carry a maximum sentence of 35 years
- the prosecution offers a deal of 4-6 months (plus no-computer etc etc)
- the defendant refuses
- the prosecution files another 9 charges to push the maximum up to 50 years
- the prosecution signals that a plea bargain now will likely carry around 7 years
- the defendant kills himself
- the prosecution says "but we always offered 6 months!"
Nope, no lie at all there, nossah.
Please do not give standard practice bullshit.
If its standard practice, someone has to change it, who else will identify and change it if it not for people like in her position.
This just speaks so highly of the state of our society. Even if you're at fault taking the moral high ground, owning up and apologizing means you could have the rest of your life ruined. Granted in this context it's a highly sensitive issue as Aaron lost his life, but the fact our culture is so highly litigious makes me sad.
http://www.aaronsw.com/weblog/semmelweis
Why can't Ortiz admit fault? If her and her department have made it common practice to do heavy handed plea bargaining and getting people to accept disproportionate punishments, like was revealed in Aaron's case then they are guilty of much more injustice than what they did to Aaron.
They deny they did anything wrong in the face of evidence that says otherwise because it would make them culpable in a much wider scope. This is the core behavior described in Aaron's post.
As a prosecutor, especially a government prosecutor, they shouldn't use every methods a judge lets them get away with when they are clearly unethical and lead away from justice. If this is now business as usual for the DOJ then, like the doctors who didn't wash their hands in Aaron post, they have been guilty of grave misconduct for a while now.
If she doesn't feel bad about causing the death of Aaron Swarz, she should not apologize. If she feels bad enough that she needs to apologize, I doubt she would worry about being ruined financially ("man, I basically killed this man with my irresponsible actions, how can I live with that?").
Don't let the discussion get too focussed on the maximums as you will give Ortiz a way out. The real threat was still too much (More than twelve times what Ortiz says is reasonable as the offer) and the idea of pleading guilt to 13 felonies possibly as unappealling as the 6 month prison term attached.
However the situation is indeed very shocking and Carmen Oritz's public reaction is also in my view extremely disappointing and shocking.
Apparently all this was an attempt to use a "big mistake" [1] of Aaron as a leverage for her self promotion with political goals and it backfired in a way she didn't anticipate.
This demonstrate to the whole world the internal "corruption" of the American justice system. Apparently there is no shame about it and no intent to change it. Probably too many influent people profit by various indirect leverages from this "state of art" and money is probably not the least of them.
Her childish response and pseudo justification it's not my fault, I didn't do anything wrong is appalling from a person with such high responsibility.
A more appropriate response is the one from the MIT director: what happened is a catastrophe and wrong because it should not have happened, we start an investigation to clarify our role in it, what we may have done wrong, what we can do to avoid that this happen again and we will make the conclusion public.
In her public comment Carmen Ortiz demonstrate her lack of honesty, objectivity and sense of justice and in short intelligence. Unfortunately it seam that people can get along with the claim she made by the benefit of complaisance of other mediocre people. Mediocracy: +1, Democracy : -1
[1] It is suggested it was a conscious disobedience meant to be a provocative political act to draw attention on a society problem without intent to harm anybody or for selfish interests like money or a political self promotion
This is the world we have all crafted and Ortiz is still in gameplay mode. If she could accept her own responsibility in this she'd likely never have made it to the position she is in, weaseling through cracks to avoid culpability is second nature in politics.
These thoughts made me conscious of the difference in the "truth seeking process" of science and justice. In science, there is a natural and strong incentive to be objective and honest (cf. MIT's open comment on Aaron's death). Unfortunately it doesn't seem to be the case in the justice system regardless of the country. Why is that ?
Could it be because the justice actors are considered not accountable for their "errors", because there is no credibility karma in play like in science, because a final decision must be made in a fixed time frame even if it can't be made on the "real truth" ?
The justice system looks so middle age compared to science. And I already think in frustration that there is still plenty of room to make science more efficient in its truth seeking process. Lowering access barrier to scientific research knowledge is one of them !
I'm glad more and more people are coming out on this issue.
Please fix the system not the blame
Suggestion: are plea bargains public record? If so can we parse and publicise them? Would it be interesting to know the ratio of years charged vs years pleaded - especially by race and offence and state?
Edit: no not trying to compare this in degree with marching thousands to death in gulags - just we should focus on fixing a justice system that basically tries to avoid the courts because of those awkward and time consuming human rights. I mean imagine if we had to deal with terrorists instead of copyright violators - we might skip plea bargaining and do something silly in Cuba. Luckily the rights of the individual are paramount in the worlds greatest democracy - otherwise we could all be in trouble
Basically we seem to be certain that plea bargains are both denying large numbers of people trials and doing so with draconian threats that make both guilty and Innocent afraid
It makes a good narrative - it would be nice to know it is true
And it would be nicer to know it in real time (ie putting court records into electronic form)
"[W]hen the system isn’t working, it doesn’t make sense to just yell at the people in it — any more than you’d try to fix a machine by yelling at the gears. True, sometimes you have the wrong gears and need to replace them, but more often you’re just using them in the wrong way. When there’s a problem, you shouldn’t get angry with the gears — you should fix the machine."
https://news.ycombinator.com/item?id=5078343
Yes the anger surrounding this will start some change - but do we want individual prosecuters to choose that change? - is not the more responsbile approach to start a locus for public debate and present our lawmakers with a consensus opinion - you know, lobbying.
It is a fact that Carmen Oritz is a snake and is not fit to serve in the United States government.
Name: Carmen Milagros Ortiz DOB: 01/05/1956 Address: 20 Herrick Dr, Milton, MA
This is how I found her info:
1. This article mentions that she's from Milton, MA: http://www.patriotledger.com/news/x655689172/Q-A-New-US-Atto...
2. Carmen Ortiz is married to Thomas Dolan according to Wikipedia and many news articles: http://en.wikipedia.org/wiki/Thomas_J._Dolan
3. If you search for her husband's name (Thomas Dolan) in Milton, MA on 411.com, you get the address 20 Herrick Dr: http://www.411.com/name/Thomas-J-Dolan/Milton-MA/2qgvqgn
4. Looking up 20 Herrick Dr, it looks like a nice house with a pool in a fancy neighborhood. Thomas Dolan is an IBM executive.
5. If you Google for: carmen ortiz "20 Herrick Dr" then you'll see a snapshot of a website on indybay.org, which has since been taken down for violating their terms of use. But in the snapshot provided by Google you can see the text "Carmen Ortiz contact. Name: Carmen Milagros Ortiz DOB: 01/05/1956. Address: 20 Herrick Dr Milton, MA", and Google shows this snapshot as dated Jan 17th, shortly after the Aaron Swartz controversy erupted.
6. If you then look up "20 Herrick Dr" on Yellowpages.com: http://anywhoyp.yellowpages.com/whitepages/address?from=AnyW... you will get a result that says:
Carmen M Ortiz, 20 Herrick Dr, Milton, MA 02186 617-698-1615
Bingo. That's her phone number. But it has been disconnected. Let's find her new number, or her cell phone number. Post it here if you can find it.
Not only that, but if you want to reiterate Linus' statement (as you seem to be suggesting, to Ortiz herself), at least realize that he made a fool of himself here. The two statements don't contradict themselves, and going from that to a "lie" is counter-productive to the discourse that needs to be held. Suggesting to harass individuals based on flaky grounds (or really, in general), also not productive.
And welcome to HN.
If Carmen Ortiz has done nothing wrong, then what does she have to fear?
Please. We're not very good at double speak here.
I'll put myself in Ortiz's shoes.
I've just pursued a federal case in which the invested parties no longer are interested in continuing. I do it with a fervor that is unwarranted compared to the severity violation. The accused kills himself out of what appears to be fear.
Then a shit-storm happens. My information is everywhere. I'm having to change everything online because it's under constant attack. Forget about the phone, it's only really good for outgoing calls now. I can't do my job as effectively anymore because I'm harried by an online wolf-pack.
I'm not saying that's bad or that's good, I'm saying, that's what it's intended to achieve and that's a possibly what Ortiz is experiencing now.
My personal opinion is maybe that's not so bad. I would hope that it could serve as a warning to the people who decide to become part of the federal government that should they approach they're duties with a large large dose of humanity. They're people, we're people, and careless anti-social behavior should be met with vehement condemnation by the populace.
It quickly went from improving the legal system in the wake of the untimely suicide of Aaron Swartz to a frothing Internet lynch mob, complete with Guy Fawkes masks and now "doxxing" Federal prosecutors just like the mafia dons and drug lords of 25 years ago.
If you're trying to relate CFAA reform with kingpins and crime lords in the public mind, you've started off on the right foot!
Aaron was an activist. He purpose broke what he considered unfair laws and tried to set free information he thought should be free (or was technically free in the first place).
I think he committed suicide because he thought he was going to be Bradley Manning-inged. I wish he would have waited a little longer and had a little more hope but it's easy to be cool and logical from a comfy chair, meanwhile his mind was facing darkness.
Both agreeing and disagreeing here...
I don't get how everyone assumes that Aaron was making a logical decision when he killed himself. It's very possible he was depressed and wasn't thinking clearly at all. It's also very possible that this trial made him depressed. But to assume that he was thinking reasonably about the circumstances and decided it was best not to live is a huge assumption. Depression completely warps reality.
Also, I'd like to add that given this, I think we're all being a bit unfair to the prosecutor. Sure, she overstepped the bounds of reason. But it's very possible she triggered an underlying mental illness in Aaron. Yes, she is partly to blame. But so is everyone else. MIT didn't step up. But also his loved ones near him didn't do enough to help. It's quite simply a tragedy. Painting Ortiz as a murderer is as wrong a painting Swartz as a felon deserving of a 35 year prison sentence.
I'd take that as a given.
> It's also very possible that this trial made him depressed.
I think to think otherwise would be to ignore plenty of evidence to the contrary.
> But to assume that he was thinking reasonably about the circumstances and decided it was best not to live is a huge assumption. Depression completely warps reality.
Yes. And this is the bit for which Aaron carried some responsibility, if you're prone to depression you should not position yourself in situations where extreme stress and threats to your personal freedom might result. Being a person prone to depression and being an activist that takes very visible steps antagonizing powerful entities is not something that you should want to combine in the same person. That didn't stop Aaron from being who he was though and in some sense he seems to have felt driven to do these things. Note that I say this as a strong supporter of everything that Aaron stood for and fought for.
> Also, I'd like to add that given this, I think we're all being a bit unfair to the prosecutor.
No we're not. She's been using people to further her career. This is disgusting.
> But it's very possible she triggered an underlying mental illness in Aaron.
She pushed him to the brink and then across it. There is no excuse for such behavior.
> Yes, she is partly to blame. But so is everyone else.
This we agree on.
> MIT didn't step up.
They did the opposite, they pushed for punishment including jail time according to most accounts.
> But also his loved ones near him didn't do enough to help.
You know NOTHING about that and should refrain from such comments.
> It's quite simply a tragedy.
No, it is an utter failure of the judicial system.
> Painting Ortiz as a murderer is as wrong a painting Swartz as a felon deserving of a 35 year prison sentence.
Nobody is painting Ortiz as a murderer, and she painted Swartz as a felon deserving of a 35 year prison sentence and now tries to make it seem as if that was just business as usual. This madness should end.
>You know NOTHING about that and should refrain from such comments.
If you suspect someone is going to harm him/herself, you call 911 and explain as much. They immediately come and forcibly lock the person in a mental institution against their will until a doctor or board decides they're no longer a threat for suicide.
Also, I'm not defending Ortiz in any way. What I am saying is that a lot of people are overreacting. Yes, she's a terrible prosecutor, went way overboard and likely played a role in a young man's death. But to say that he "was killed by the government" (Aaron's father said that) and then for us to focus our anger on Ortiz is absurd. Sure, I can accept the government had a role in his death. But Ortiz is operating within the system that exists, enforcing ToS-violation-is-a-felony precedent that already exists, using multiple counts to force a plea that all prosecutors do.
Again, you make huge assumptions about the situation. Let me enumerate a few of them:
To make a long story short: if someone really wants to commit suicide they will manage to do so, sometimes right under the noses of those that care without them suspecting anything.> But Ortiz is operating within the system that exists, enforcing ToS-violation-is-a-felony precedent that already exists, using multiple counts to force a plea that all prosecutors do.
Indeed. And she chose that role out of her own free will. 'My hands were tied' doesn't cut it with me, we all make our own decisions, every day.
https://www.techdirt.com/articles/20130117/02090421710/carme...
The real problem is the how the prosecution system is based on terror instead of on justice. Laws can be made less amenable to be used to terrorize, but as long as the deep roots of the system are based on terror, changing laws will not suffice.
The aim should be to fix the system and the laws that make the system, not only to fix each overreaching law at a time.
This besides the issue of whether or not making Ortiz pay is adequate.
She is not fully responsible but she - and Heymann - at least carry partial responsibility for pushing him as far as they did, and consequentially (at least in my opinion) carry partial responsibility for Aaron's death.
Linus is a programmer. Booleans can't have the value "dishonest". False is the closest approximation. Cut the man some slack.
this may be insensitive, but why don't school shootings result in the same kind of critical look at gun laws?
or killing pakistani civilians with drones in breach of international law
or the idf killing more palestinian /children/ than israelis have ever died at the hands of palestinians, which is indirectly funded by 'aid' money totalling some $3 billion from the US at a time when the country is suffering economic problems and is cutting benefits for its own citizens that cost a lot less.
trade embargo against cuba because of a revolution that installed a government chosen by people through a fight for freedom that happened to not align with the ideology of the administration in the 60s
pick one, they all kill more people and are vastly more important and worth spending your time being angry at your government for.
this is a piffling tragedy of people who can't deal with first world problems... i shed no tears for anyone involved.
downvote at will.
I do not think (correct me if I am wrong) the laws ever say that lawyers have the permission to extort pleas even though that's what is going on everywhere.
And if as an appointed office holder and given such responsibility, you have to understand that nothing sort of extortion should ever undergo and if you could not do that, you are not fit to run the office. Simple. Period.
How hard is that for anyone to understand. Please don't give standard practices bullshit.
I'll admit that dropping the option of plea bargains would less to lower conviction rates (though this is not necessarily a good thing, depending on your mindset). However should Aaron's case have gone to trial it's very likely IMO that it would have lead to a conviction and you really would be talking about anywhere between 1-7 years in prison instead of 4-8 months. That sword cuts both ways.
Swartz was a talented man, no doubt about it, but he became a zealot, and zealots do stupid things. When he realized that he wasn't going to escape justice because ZOMGAARONSWARTZ -which is basically what JSTOR tried to do, and the Justice Department wasn't buying that because it would have been, in a word, unjust- he did something rash, and that brings us to today. He was not a saint, he was not a "light of the world, put out too soon", and he certainly shouldn't be elevated to martyr status.
JSTOR decided not to pursue with the litigation because they realized that Aaron had a point - it was not fair to lock up the wealth of knowledge and restrict access to the public who payed for them with their tax dollars, not because ZOMGAARONSWARTZ
site:http://www.justice.gov "if convicted, * faces"
57,700 results.
There are many things to criticize about the universe, but the standard form language on US Attorneys' press releases is probably not the biggest thing we should be worried about. Linus, as he often does, is speaking too confidently and too hastily.
And the press releases always state the statutory maximum, which as I and many others have explained, Aaron was never actually threatened with. His lawyers knew that. He had to know it. Lessig either knew it or should have known. The only reason we're talking about "35 years" is because of Lessig's irresponsible PR.
I'm trying to think of a hacking analogy. Imagine if you write a routine for loop with an int increment and someone, trying to understand the code, asks "wait, how many times can this run?" And you respond with INT_MAX. In most situations, that would be a misleading, borderline autistic response, with no relationship to the real world in the normal case.
I don't want to accuse Dr. Lessig of bad PR though, as much as using the same wording the prosecution uses (although it's no secret how Dr. Lessig feels about this case).
But if you're being advised by an expert in the field, they'll tell you that in reality, the results aren't going to be anything like that.
Maybe she intended to make herself look merciful when agreeing to the much smaller punishment. The argument that the experienced defense lawyers were influenced by press releases rather than what they were actually being offered by the prosecution seems a little weak.
Further, when you're in the wrong (even partly), the only appropriate thing to do is to apologize. Not defend or justify or half-apologize with an explanation to try to gain sympathy, but to man up and say you're sorry. Anything less from this prosecution team is pathetic and sickening.