
U.S. Attorney Carmen Ortiz Issues Statement on Aaron Swartz Case - revorad
http://blogs.wsj.com/law/2013/01/17/us-attorney-statement-on-the-prosecution-of-aaron-swartz/
======
jacquesm
> I must, however, make clear that this office’s conduct was appropriate in
> bringing and handling this case.

That's why you assign investigations to independent entities, and that's why
butchers aren't allowed to do their own health inspection.

Whether it was appropriate or not is not for Carmen Ortiz to say.

"The prosecutors recognized that there was no evidence against Mr. Swartz
indicating that he committed his acts for personal financial gain, and they
recognized that his conduct – while a violation of the law – did not warrant
the severe punishments authorized by Congress and called for by the Sentencing
Guidelines in appropriate cases."

Is in direct conflict with Aaron's lawyer's account of the run up to last
Saturday as well as other statements issued earlier, she may come to regret
those words if he has documentation to prove his side of the story.

Aaron's lawyer claims they were threatening just the opposite if he did not
take a guilty plea.

In particular:

"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."

Is a falsifiable claim. I'm looking forward to Aaron's lawyers' response to
this statement.

~~~
chernevik
One. It is a very serious mistake to deny someone the right to believe the
correctness of their own opinions.

Two. People use leverage. They may or may not use it rightly but they do use
it. Anyone who cannot set their opinion of the justice of that to one side,
and get on to the business of the contest at hand, is not cut out for
politics. Such people enter these contests at a great disadvantage and risk
getting hurt.

If you cannot fight with your head then you really should not fight at all.
You will very likely lose. You might get hurt, and you might get hurt badly.
Politics ain't beanbag.

Three. If you think an attorney able to rise to the position US Attorney will
be caught in a "falsifiable claim" on a matter of this prominence then you
simply do not understand what you are talking about.

~~~
tptacek
So might makes right?

~~~
fleitz
In the philosophic sense, no!

In the we live in the real world sense, absolutely.

The US gets to enforce US law around the world because they have more guns.
You'll notice that when the USSR was around there were a group of countries
with a vastly different system because the USSR had enough guns to force the
people of those countries to play along.

The International Criminal Court is an even better example, the US is not a
signatory to the ICC but can recommend other non-signatories to be prosecuted
by the ICC while at the same time denying the ICC rules apply to the US.

Might absolutely makes right because those with out might are unable to
enforce their decisions. Ortiz lives by politics she can die by politics, I'm
sure she's experienced enough to realize the realpolitik ways of the world.
She's no innocent bystander in the corruption of the American justice system.

~~~
argv_empty
In your post, I see a lot of examples of why might makes might, but that's
hardly new information.

~~~
mpyne
It's never new information. Reality has been a harsh, harsh mistress for
decades and decades now.

It's what makes debating with ideological idealists so contentious IMO.
There's no way to convince them to settle for anything other than "what's
right", even if _the only way_ to get to that state is to first settle for
gradually less-wrong states in between.

Even RMS had the pragmatism to start developing GNU on a proprietary OS with
proprietary tools.

------
erichocean
_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._

The absolute dishonesty of this statement has only further convinced me that
firing this political appointee to prevent her from further harming citizens
is the only appropriate action for our government to take.

~~~
blablabla123
You have any proof for your statement?

This 35 year (or 50 year) thing mentioned in many blogs might be questionable.
To be frank I feel myself a bit fooled by this information, reading yesterday
that 6 month have been proposed to Swartz. When talking about things as
serious as death, we seem to assume that every information is depicted really
carefully, but this is far from being true.

~~~
mcherm
Here is a Department of Justice press release threatening 35 years:
[http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....](http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html)

The additional charges added later (after this press release) are the source
of the 50 year estimate.

6 months was offered _IF_ he agreed to plead guilty. If he went to trial, the
prosecutors claim in the above press release that he faced 35 years; in
private communications they have claimed they intended to press for 7 years.

There are exceptions, but most of the blog articles I have read on the subject
have been extremely well sourced and well researched.

~~~
FireBeyond
Apparently a material statement of fact that charges x, y, and z could result
in a sentence of up to 35 years is a "threat"?

People have shown a great ability to leap into conflating the two, a statement
of intent versus a statement of fact.

~~~
jamieb
"We're not saying its going to happen to you, but these other three businesses
have burned to the ground. If you give us 10%, we can make sure it doesn't
happen to you."

At no point in this sentence did I say "If you do not pay us 10% we will burn
down your business." However prosecutions have successfully argued, and any
reasonable person would agree, that the first sentence is a threat, is
coercive, and is criminal. Making a statement about what "could" happen can be
interpreted (often correctly) as a threat. Making a statement about what could
happen when the person making it is instrumental, even a required agent, in
the future event, is most certainly evidence of a threat. Making such a
statement while offering a lesser harm (or sentence) is most certainly a
threat.

You may post as many replies on this thread that "threat" doesn't mean what we
think it means but the law, common sense, and understanding of English, proves
you wrong.

"I didn't intend to burn down their business, judge. I just pointed out that
it could happen. Whether or not I would have intended to do so after they
decided not to accept my plea-bargain^H^H^H pay my protection fee is
immaterial to the case. You are conflating the two, a statement of intent
verses a statement of fact. The fact is I did not burn down their business and
you have no record of my saying that I intended to."

~~~
amckenna
You state: _"You may post as many replies on this thread that "threat" doesn't
mean what we think it means but the law, common sense, and understanding of
English, proves you wrong."_ however...

From _United States v. Kelner (1975)_ -

 _"... the threat on its face and in the circumstances in which it is made is
so unequivocal, unconditional, immediate and specific as to the person
threatened, as to convey a gravity of purpose and imminent prospect of
execution..."_

The "threat" made by the prosecutor in Swartz's case wouldn't meet the
conditions of unequivocal, unconditional, or immediate thereby rendering it
not a threat. A layman may feel that they were threatened or that someone else
would feel threatened by the statement in the press release, but the law does
not consider it one.

~~~
jamieb
I think you should read what that case was about (and that the US won and on
appeal).

If I go on TV and make threats, then sure, the prosecution _would_ have to
meet that standard. If I meet you in dark alley with what you believe to be a
gun (but aren't sure) and I make implied remarks about what might happen to
you if you get caught wearing that watch, and maybe you can leave it with me
and I'll be sure to return it to you when you're safe, then I'm going to jail.
I don't have to say "Give me that watch or I will shoot you". If I imply that
sleeping with me might get you that promotion, even without saying so, and I'm
in a position to make it happen, then I'm guilty of sexual harassment. I don't
have to say "If you fuck me I'll promote you".

Lets be clear. I'm not expecting Ortiz to be drawn up on extortion or
racketeering charges. The examples were to demonstrate that a "true threat"
does not require the defendant to say "I intend to X on date Y" for it to be
taken as a threat or proof of intent.

~~~
amckenna
I did read the case, and I do understand that the circumstances are different.
The piece I wanted to draw attention to is that there are criterion for what
constitutes a threat.

The examples you have provided in both of your posts include ominous
characters and "dark alleys." More importantly, both of those situations
involve an agent telling the other person they should take some action or
there will be some consequence, implying that if the action is not taken, then
there is a risk of the consequence. In the press release by the prosecutor,
there was simply a statement of consequence, not a prescribed set of choices
or a consequence if Swartz didn't take a certain action. There may have been
threatening outside of the press release, but those facts are still murky and
it is outside of the scope of what I am talking about.

If you are picking a bone with plea bargaining and how it is used to threaten
people and coerce them into guilty pleas, then that is fine, I'm not arguing
with you there - just with the perception that the prosecutor's statement was
threatening.

------
forrestthewoods
"...we would recommend to the judge of six months in a low security setting.
...his defense counsel would have been free to recommend a sentence of
probation. Ultimately, any sentence imposed would have been up to the judge"

Little known fact here. When you accept a plea bargain you do _not_ accept a
sentence as part of that. Often times you agree to plea to lesser chargers
which have a lower maximum penalty but you still run the risk of being
sentenced to the max.

There is also the chance the judge will give a longer sentence with
enhancements. It's possible you will have not been convicted, tried, or even
charged for those enhancements. This has been ruled unconstitutional by the
Supreme Court of the United States. However that doesn't stop judges from
doing it anyway. When you are crushed, broke, and in jail what are ya gonna
do, sue?

~~~
pseingatl
The plea bargain could have been capped at six months. US Attorneys do this
all the time. There is much more that the office can do than just recommend a
sentence to the judge. The defense attorneys may not have wanted to run the
risk of consecutive sentencing. The probation office could easily have reached
the conclusion that the property taken was valued at $5 million based on the
FBI affidavit and at that point probation is not permitted under the
Guidelines. Supervised release additionally would have prevented any computer
use for 2-3 years. The defendant would have gotten low security anyway and
that determination is not up to their office or even the sentencing judge--it
is a determination made by the US Bureau of Prisons. The statement is
misleading in more than one respect.

~~~
waps
However in this case there were damages involved to outside parties - which
meant they had to agree to any plea bargain if the US attorney wanted to
present that to the judge.

------
binarymax
Before this statement was issued, I didn't think we should be chasing them
down to make an example of them[1]. Now that she is dishonest and trying to
brush everything aside as 'business as usual', I am changing my stance. She
needs to go. Not to make an example of her, but because we should not tolerate
such dishonesty and smugness in our federal court system.

[1] <http://news.ycombinator.com/item?id=5053980>

~~~
jskonhovd
Completely agree. There's no place for people like her in our society. I hope
this kills her career, but I doubt it. Even if he gets fired she still will be
corrupting the system in some capacity with her influence. But at least she
won't end up with a job like Marsha Blackburn.

~~~
res0nat0r
I think the collective HN IQ has dropped by about 40 points this week with all
of these moronic statements.

She should get fired for _doing exactly what she was put in to office to do_?
IE: Follow the federal sentencing guidelines like she should? In _no_ way was
there _ever_ going to be some 30 year sentence. Six months maximum is not over
reach.

------
wickedbass
While it is nice that she is passing blame to Congress, if it were only a "6
month low security setting" being discussed, why wouldn't Aaron have been told
of this? Why the additional and ultimately 13 felony charges when he was MOST
concerned with not being labled a felon. Why hold that 50 year sentence above
his head with no HOPE in his own mind because he was left in the dark. "As a
parent and sister", would you want your child to be stranded for two years
with the full weight of the federal government and their impending punishment
upon you hidden behind a dark veil? As a human, I both recognize that she is
probably saddened and shocked that he took his life (and probably freaking out
bc of the white house petition), but at the same time, it's clear that this
shouldn't be allowed to happen, so if it means she loses her job - tough luck.

~~~
corporalagumbo
When cops come across otherwise nice young white guys who believe themselves
invulnerable or above the law and are doing stupid, impulsive things, their
usual practice is to "scare them straight." So they get tough on them, tell
them all of the awful consequences they're in for, put them in a horrible,
cramped cell, maybe throw them in with some real nasty characters, and, above
all, get their parents involved.

It's a form of kindness. If you make them crush their self-confidence and make
them feel like shit, they learn their lesson. They lose that blithe self-
confidence and begin to realise they have to play by the same rules as
everyone else. And then, they will hopefully turn into constructive, positive-
minded members of society.

The practice varies with the character of the kid, the ugliness of their
crime, etc. I'm not saying this is what Ortiz and co were thinking with Aaron
necessarily but I wouldn't be surprised if it was an element. Aaron's
behaviour was very removed from the situations I'm talking about, so the
participants and response was very different. But he sounds like quite an...
intense person, so maybe they decided they needed to put a lot of pressure on
him to crush his spirit.

Of course, usually the kids don't kill themselves - but then usually it's not
the justice department slapping them on the wrist. They should have realised
that people like Aaron are very fragile. I won't apologise for that. A more
delicate touch was required, because this outcome is just awful and a disaster
for all parties. A real shame. But I do want to point out that their actions
in frightening him were not necessarily without reason.

By the way, I have spent a night in a cold concrete cell sobering up and
feeling like the world's biggest idiot. My escapade cost me $2700 and a lot of
self-respect, and though it was awful at the time I am thankful and realise I
learned my lesson very economically. Hearing Aaron's story is really painful.

~~~
wickedbass
Hey, I recognize what you're saying and agree with it. I too have been in that
unfortunate and TERRIBLE cold cell once in my life and know what it feels like
to have your freedom stripped from you (and mine ended up costing 10k+ in the
end).

No one will ever know why Aaron killed himself fully, and that is unfortunate.
Most of us only learned of him fully through his suicide. When I watch youtube
videos of the guy, he seems so damn intelligent, eloquent, literate... It's
hard to imagine that he wasn't smart enough or brave enough to truly ask the
community for help.

That all said, one of the main things I've learned through my own past
escapades and more so through tragic news like this, is that the justice
system is inherently fucked up. It is designed to destroy the plaintiff. I
have lived through this and it was the most miserable experience of my life
(thanks ex gf I used to love for 5 years). Once you are in the 'system', or
they are after you, if they have a reason (in their own mind), you are fucked.

Unless you are a multi-millionaire who can afford to pay your way out, and
even still, you're most likely getting fucked from one direction or the other.

I think that is what this entire thing boils down to. Overreach of the Federal
Government. Punishment does not fit the alleged and unconvicted crime.

Aaron might have had depression issues (a whole different beast in itself),
but from all the empirical evidence available to the public, it seems like he
was truly pushed into a corner and a high risk for suicide - and unfortunately
he fulfilled that presumption.

I hope we as a society can learn from this.

~~~
jacquesm
> It's hard to imagine that he wasn't smart enough or brave enough to truly
> ask the community for help.

He did.

------
UnoriginalGuy
> and did so reasonably.

They still believe that? Sorry but they're unfit for the job. They need to go.
There was nothing reasonable about their actions on this case.

> a sentence that we would recommend to the judge of six months in a low
> security setting.

Six months in jail for downloading files that were accessible to him? All he
did was violate terms of service! Are we going to start arresting under-age
Facebook users or gamers that cheat next? Should they get six months too?

This statement is just icing on the cake that proves that Ortiz is
inappropriate for that job/role.

~~~
corporalagumbo
[http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....](http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html)

Downloading four million files, apparently. And if by breaking terms and
services you mean illegally distributing protected content and threatening the
business model of JSTOR then yes, I suppose that is true.

~~~
UnoriginalGuy
One, two, a million, four million, what difference does it actually make? The
crime was violating the terms, it isn't relevant where the EOF bit was
transmitted. If you made the same files half as big he would have "stolen"
twice as many files, or twice as big then he would have done half the crime by
your logic.

He never distributed anything. No clue where you got that from?

Additionally "threatening a business model" within its self isn't a crime. In
fact one might argue that it is a very good thing. Monopolies have often
fallen to disruptive technologies, should we go arrest the people behind VoIP
because they went after the telecos? Or the inventors of the printing press
because they put scribes out of business? Or the inventor of the light-bulb
because nobody had to light all of those candles each night?

The only "crime" here was violating terms. For that they want to hit him with
between six months and thirty five years of jail (plus costs, fines, and a
criminal record). If this same over-reaction was applied to all terms
violators we would have half the country in jail right now.

~~~
corporalagumbo
It makes a big difference. Four million is apparently the majority of JSTOR's
database. Keep in mind that JSTOR doesn't own those articles, it just arranges
approved access to paying institutions on behalf of the various journals which
do own the articles. If Aaron had distributed them he might have damaged
around a thousand different institutions involved in an important segment of
the knowledge and innovation industry. You can argue that that industry should
change but I am not sure I can agree that a brute force assault is a good way
to create constructive change, especially in a relatively fragile and cash-
strapped field like academia.

Anyway, I've used JSTOR a lot as a university student. It's a really good
service. They don't create the economics of the journal industry, they just
try to work within it.

And no, I disagree with you, Aaron's actions strike me as extreme and out of
the ordinary.

~~~
colin_jack
"If Aaron had distributed them he might have damaged around a thousand
different institutions involved in an important segment of the knowledge and
innovation industry"

I know there is his manifesto from a couple of years ago but we can't be sure
what he was going to do with them.

~~~
corporalagumbo
Do you have a link to that?

~~~
colin_jack
Yup I was referring to this one:

<https://gist.github.com/4552726>

------
gadders
It's sad that he committed suicide, but that is not a rational response to 6
months in a low security jail.

Conrad Black did 30+ months. Kevin Mitnick did several years. Even Martha
Stewart managed 5 months.

Also, with his profile and past history, his felony conviction would not
seriously impede any career he wanted to undertake.

Finally, the whole point of civil disobedience is to break a law, and get
caught, punished and make (to a certain extent) a martyr of yourself to draw
attention to your cause.

~~~
ghshephard
Except defending himself would have cost on the order of a million dollars
(Per Lessig) - does he go to his family for that? Even if he turns out to be
found completely innocent, him, his family, and those who he can turn to would
have been wiped out financially. That part of the story doesn't get enough
attention.

~~~
jstevens85
If he accepted the plea bargain of six months, then the case wouldn't have
gone to trial, avoiding the excessive legal fees. I don't understand the
timeline, but had he accepted the plea bargain, is it not possible that he
would have already served his sentence by now?

~~~
BrokenPipe
Maybe. The point is that you shouldn't submit to 6 months of federal prison
without trial or appeal, all the money loss for the two years in the case and
your life ruined by the felony counts records for using a script to download
files you already have legal access to. At worst all there is to this is
trespassing, on an open campus on an open network etc etc.

~~~
mbesto
You're probably right, you _shouldn't_ , but unless you offer up a better
suggestion for a law system, it is it what it is.

~~~
peteretep
How about the one the rest of the civilized world uses? Which is: not mixing
politics and prosecution.

Check out the British version of government prosecutions:
<http://en.wikipedia.org/wiki/Crown_Prosecution_Service>

Where "controversial" is "oooh, should we change the name?!?".

~~~
BrokenPipe
The american system is one of the worst in western society, granted, but the
British one is not that much better at all. Some claim is worst. I never had
the misfortune of having to try that on my skin but heard from friends and
family.

How's the system in Iceland ? Or Norway ?

------
offshoreguy19
I know from personal experience that the US Attorney's Office always states in
their press releases the maximum penalty possible that the defendant is
facing. Each charge has a maximum number of years and they state the number of
possible consecutive years possible.

Had Aaron Swartz been found guilty, there is no way he was going to face the
maximum penalty. There is a high probability that the penalties associated
with the charges would have been run concurrently.

Once found guilty, US Probation writes a Pre-Sentencing Report which
calculates the time the defendant is facing. This calculation is based upon
numerous details, including but not limited to actual damages, criminal
history, and offense level with points that range from from 1 to 43.

If a defendant agrees with the government that he or she is guilty and pleads
accordingly, he or she will generally get fewer points for offense level. If a
defendant contests the charges and exercises his or her constitutional right
to have his or her case heard by a jury and is found guilty, US Probation will
increase the number of points. (Imagine that. The government gives you more
prison time for exercising your right to a trial under the Constitution). The
more points calculated, the more time a defendant is facing.

Good time is applied to a sentence by the federal prison. An inmate is
supposed to do 85% of their time if he or she has no infractions, but since
the federal prison system has an interest in keeping people imprisoned, the
bureaucracy has found a way to deliberately mis-read the good time statute and
apply it in a way so that a defendant actually does 86.2% of their time. A
sentence of one year or less will not have good time applied. Anything above
one year and the good time calculation is applied.

The biggest risk in taking a case to trial are the members of the jury. The
government educational system has done a great job of dumbing people down so
that they follow the government's bidding. ie., "If he's on trial, he must be
guilty." Few people actually think for themselves and question what is told to
them by an authority figure.

------
intended
So Ortiz' message is that - this is my job I fight for the law, and I agree
that its over the top, but it is what it is. Change the framework and I'll do
what it says.

The law (edit: and system ) is set up so that a "good prosecutor" would work
to prove Aaron was guilty of breaking those laws. The final sentence, which is
the responsibility of the Judge would have to take account of everything
especially his motivation, to give him an appropriate sentence.

"I'm just doing my job, and the final sentencing isn't in my hands"

\---

Fine - that's her version, and frankly - its exactly as expected. There really
are few if any other ways that Ortiz could explain her actions.

Strangely its also pretty much the exact defense that the Financial industry
has used so far. AKA these are the rules, hate the game not the player.

Sometimes people from the outside are required to point out that somethings
are obviously morally wrong. Especially when Insiders end up missing it.

~~~
jasonzemos
There's an old saying that a good prosecutor will convict most guilty men, and
a great prosecutor will convict a few innocent ones too. That's how these
machines think. She's right only in that congress was stupid enough to give
her any form of discretion at all.

------
arbuge
I think this release is worded disingenuously. My understanding of this case
is that the 6 month offer was only part of the plea deal the prosecutors held
out if Aaron didn't go to trial. If he exercised his right to due process and
went to trial, he did indeed risk the full 35 year penalty and no such
sentence recommendation was on offer.

This is typical of many prosecutors in the US, unfortunately, who attempt to
terrorize defendants into accepting their plea deals. It's not much different
than the way torture was used in the Middle Ages to extract confessions and
secure convictions.

It's pretty sad to see a press release that attempts to obfuscate the truth
like this.

------
huhtenberg
Let me just throw something out there.

It's obvious that the investigation was a contributing factor to Aaron's
decision to take his life, but to what extent? Was this at all investigated by
the media, or have everyone just made the connection, because it was the
easiest explanation?

~~~
erichocean
Aaron killed himself two years to the day of this whole ordeal starting.

Either that's an incredible coincidence, or Aaron decided to take his life as
a political statement. Given his past actions, that's an easy assumption to
make.

Also, his request for a plea deal was _denied_ in very harsh terms two days
before Aaron took his own life, so even knowing just that and the fact that he
_really_ did not want to be labeled a felon, it's easy to make the connection.

Finally, Aaron's own family, partner and legal representation believe they
were related, i.e. those closest to Aaron believe the federal trial was a
major cause.

Of course, he also had a history of dealing with depression; I don't think
anyone's denying that.

~~~
huhtenberg
Thanks for the summary.

------
pfortuny
There are people along history (and I mean specifically civil servants, like
Thomas More -the first that comes to my mind but by no means the only one-)
who have even given his life because they did not want to comply with 'the
law'... This 'complying with the law' is fedding me up.

Someone has already noticed that bankers did also act 'with the law on their
part'...

And all the rating agencies, they suddendly 'just offer counsel and advice',
they are in no way suggesting that a product is fit for buying or selling...

Is there a conscience out there?

~~~
Yaa101
In our opinion not, but the rules are that only money decides the rules.

And the rules are that other people are always to blame and that the law, no
matter how corrupt, is the law.

The problem is that especially these people (civil cervants) are chosen on
this fallacy, are only loyal to their families and peers, all others don't
exsists or are there to pull a leg out.

There is a huge Us vs. Them attitude amongst most people (not all, gladly)
serving any government.

------
bgmasters
> That is why in the discussions with his counsel about a resolution of the
> case this office sought an appropriate sentence that matched the alleged
> conduct – a sentence that we would recommend to the judge of six months in a
> low security setting. While at the same time, his defense counsel would have
> been free to recommend a sentence of probation.

That is terrible writing. Ms. Ortiz should be doubly ashamed.

~~~
apl
Remarkable, isn't it? That doesn't even qualify as convoluted legalese; that's
simply _atrocious_ style.

------
Kliment
So how does this mesh with the doj-issued press release stating the 35 year
term?

~~~
RobertHoudin
Could you provide a link to that please?

~~~
Maxious
> ALLEGED HACKER CHARGED WITH STEALING OVER FOUR MILLION DOCUMENTS FROM MIT
> NETWORK July 19, 2011

> AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer
> fraud, unlawfully obtaining information from a protected computer, and
> recklessly damaging a protected computer. If convicted on these charges,
> SWARTZ faces up to 35 years in prison, to be followed by three years of
> supervised release, restitution, forfeiture and a fine of up to $1 million.

[http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....](http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html)

Maybe us common folk don't understand that when the Department of Justice says
35 years they don't mean 35 years? Do the defendants in these cases understand
how many years they are actually being expected to serve?

~~~
anonymouz
It is obvious from this press release from the formulation "faces up to 35
years in prison", that they are simply quoting the maximum penality for the
charges.

The prosecutors press release says that they didn't intend to push for maximum
penality.

These two statement are perfectly compatible with each other.

~~~
jacquesm
I think those two statements are in direct contradiction with each other, and
Aaron's lawyer is on the record that they were putting up a > 10:1 ratio for a
plea bargain.

So they may not have been seeking the technical maximum but they were
definitely beating their drums quoting that maximum where ever they could. Now
that that makes them look terrible they're backpedaling on that but there is
enough documentation out there to make this look like what it is: full-on
damage control.

The Aaron Swartz story is starting to get some serious play in mainstream
media and that is something that worries people like Carmen Ortiz more than
anything else.

~~~
josephlord
The maximum was so high they didn't even need to go near it for the terrifying
threats of the > 10:1 ratio. The talk is that the plea would have been 6
months and that at trial they would have asked for 6 years. 12:1 ratio and
they can truthfully say that they weren't asking for the maximum. They can't
truthfully say that they wouldn't seek the ridiculous though.

Likewise she focused on the plea bargain offer of side of 6 months but not on
the fact that this would have involved admitting guilt to 13 felonies. For
someone with honour who really believed themselves not guilty (at least of
serious crime) that could be as much of an issue as 6 months low security
detention. For lawyers it seems to be a game and the sentence and number of
convictions is the score; unfortunately the victims of the law take it more
seriously.

Always look at what isn't said not just what is said.

------
barking
Isn't this just the way these things are done in the US? America has an
adversarial system of justice. It also has a plea bargaining system. Don't
those two together naturally lead to situations where each side will threaten
their worst in an effort to gain the best bargain they can from the other?

------
pseingatl
I agree that the "Statement" is misleading. If Ortiz really believed that a
Guidelines sentence was inappropriate they could have offered a capped
sentence of six months or stipulated to a lower financial valuation of the
stolen documents to bring down the Guideline. Neither was done. A prosecutor's
recommendation is useful, but it is not binding on the Court. They did not
agree to dismiss the other counts of the indictment, and while this would not
affect the Guidelines, the sentencing judge could decide to impose sentences
consecutively. Swartz would have been without computer access during a two to
three year term of supervised release as well. If Ortiz really believed what
she wrote in her Statement her office would have limited Swartz' criminal
exposure to six months. US Attorneys' offices do this all the time. Hers did
not. Her statement is misleading.

The cover-up is always worse than the crime and this Statement only makes me
wonder what else is out there. She should resign.

------
silentmars
As damage control goes, Ortiz's statement is inadequate. There is a well-
supported petition calling her out by name to be fired. There are major media
outlets openly questioning not only her actions, but the fitness of the entire
Justice Department to act appropriately. Not one or two media outlets, but
dozens. The situation seems very serious indeed. This is the bloodless, half-
assed kind of statement she makes in response? I don't get it.

------
mildavw
"six months in a low security setting."

That one word, "setting," puts her squarely in bullshitter territory. The
obvious and honest word is "prison". But that's too dark a color for the
painting she's holding up for us.

------
nodata
"I haven't bothered to mention the whole sad Aaron Swartz saga, because it's
been covered elsewhere.

 _But having the involved US attorney then basically lie about it all_ in a
very public statement is something that I find particularly offensive."

\-- Linus Torvalds,
[https://plus.google.com/102150693225130002912/posts/ggzfzKyr...](https://plus.google.com/102150693225130002912/posts/ggzfzKyrcRQ)

~~~
lotso
From his Google+ post

"Yesterday (as reported by the Wall Street Journal and elsewhere):

"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."

And July 2011 (as posted by justice.gov itself):

"SWARTZ faces up to 35 years in prison, to be followed by three years of
supervised release, restitution, forfeiture and a fine of up to $1 million""

Stating that a person faces x amount of years is not the same as saying we are
seeking to put you in jail for this many years.

Correct me if I am wrong, but this is how anyone who allegedly broke the law
would be treated. The law you broke states you can face up to x, y, and z for
breaking it, but hardly anyone gets that maximum sentencing. Hell, even
murderers rarely get the maximum sentencing.

------
davemel37
"Under my coat is a weary heart, but a kind one-one that could do nobody
harm." -notorious murderer two gun Crowley

Unless you can improve on the silence, don't open your mouth...

Before this statement I had hopes Ortiz had regrets...Now I know she
doesn't...where did I leave my pitchfork?

~~~
vijayr
_Unless you can improve on the silence, don't open your mouth..._

Well said

------
kunai
Ortiz is simply trying to undo the damage she has already done.

Well, Ortiz, lemme tell ya sumthin' -- it ain't gonna work.

First of all, the statement reeks of PR tinkering. When every single source
points to Ortiz and her cronies pursuing maximum sentences and intimidating
Swartz, she comes out with a sorry excuse of an apology that denies it. Also,
the 6 months plea deal would be only under one condition, and that is if
Swartz acknowledged everything that the gubmint charged him with, which was
still a major tarnish to his rep. So what did Swartz do? He had integrity and
stood up for what he believed in, and then Ortiz pushed on with defiance. I
recommend watching this YouTube video -- seems like Swartz' position is eerily
similar to the other protagonist's (and if you haven't watched the movie, you
simply must): <http://www.youtube.com/watch?v=TKAxnB6Ap4o>

If only Aaron had Al Pacino standing up for him...

By the way, this isn't the first time Ortiz has been a major pain in the neck.
A quick Google for "Tarek Mehanna" should be enough to affirm the opinion that
Ortiz is a tyrant.

------
pms
> "As federal prosecutors, our mission includes protecting the use of
> computers and the Internet by enforcing the law as fairly and responsibly as
> possible."

Protecting? Just like they protect "free knowledge"?

------
sever
"somehow led to the tragic result of him taking his own life" That "somehow"
word really rings wrong with me. It is not that hard to understand how being
under a federal indictment would contribute to depression and even eventually
suicide.

------
jack-r-abbit
So maybe people don't realize but there is a chart that is used for
determining possible sentence for any given set of charges. I have seen this
work sheet in process. The charges are listed. And there is a book (or
document or something like that.. I forget) that explains the max jail time
and fine for all these charges. and then there are "special circumstances" for
some charges that can add on to the sentence. So if you have a list of 10
charges and you go through each one and examine the special circumstances and
tally the whole thing up... you get you maximum (potential) sentence. That
does not mean that is what will be sought. That does not mean that is what you
will get. That just means that is the max you face.

------
tlrobinson
_" Ultimately, any sentence imposed would have been up to the judge. 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."_

I'm guessing this is a very carefully worded statement.

------
mchusma
"while a violation of the law"

I have noticed that government agents are relatively quick to assign blame
when there has been no conviction. The charges were filed & ultimately
dropped, so there has been no determination by the government that this was a
violation of the law. I've been a victim of this myself. When launching the
first online notary service, the CA secretary of state published an erroneous
notice that we had committed a crime. When we spoke with their office, they
indicated that there was no evidence of any crime. It ultimately took 2 years,
and the threat of a lawsuit, to remove the false statements.

------
logn
What I find really sad about all of this is that it took a suicide for all of
this news and outrage to surface. It's understandable but it's depressing. I
think some people (not saying Swartz) considering suicide think, I'll show
them, or this will make them sorry. This sort of supports that.

In Swartz's case the sad thing is he probably never expected this outpouring
of support. To him it probably seemed as if the world either didn't care or
didn't support him. Just read the old HN post he made for legal fund
donations. It's unfortunate he can't realize how most people are on his side.

~~~
jacquesm
Most people weren't on his side because the most harsh details of the case
were not easily visible to those not directly involved with the case.

If that had been different I think a lot more people would have support Aaron
earlier.

------
josephlord
Statement Deconstruction

 _STATEMENT OF UNITED STATES ATTORNEY CARMEN M. ORTIZ REGARDING THE DEATH OF
AARON SWARTZ

As a parent and a sister, I can only imagine the pain felt by the family and
friends of Aaron Swartz, and I want to extend my heartfelt sympathy to
everyone who knew and loved this young man._[Sympathy - a good start but no
apology.] _I know that there is little I can say to abate the anger felt by
those who believe that this office’s prosecution of Mr. Swartz was unwarranted
and somehow led to the tragic result of him taking his own life._
[Acknowledges anger and public feeling. No comment on their actions.]

 _I must, however, make clear that this office’s conduct was appropriate in
bringing and handling this case._ [States that they were correct to bring and
handle the case. May be read as they handled the case correctly BUT does NOT
actually state that.] _The career prosecutors handling this matter took on the
difficult task of enforcing a law they had taken an oath to uphold, and did so
reasonably._ [Claims the career prosecutors were reasonable. Were all involved
'career prosecutors' or is someone about to be hung out to dry? Alternative
reading is that 'career prosecutors' is just trying to make them sound
better.] _The prosecutors recognized that there was no evidence against Mr.
Swartz indicating that he committed his acts for personal financial gain, and
they recognized that his conduct – while a violation of the law – did not
warrant the severe punishments authorized by Congress and called for by the
Sentencing Guidelines in appropriate cases._ [OK. Then why would they (note
Ortiz is not taking responsibility for this judgement) want to seek 7 years if
it went to trial] _That is why in the discussions with his counsel about a
resolution of the case this office sought an appropriate sentence that matched
the alleged conduct – a sentence that we would recommend to the judge of six
months in a low security setting._ [not stated also admission of 13 felonies
or that if he wanted a trial because he believed himself not guilty the
appropriate sentence to seek would have been 7 years. Thats what you get for
believing you have a right to a trial and not just doing what we say.] _While
at the same time, his defense counsel would have been free to recommend a
sentence of probation._ [Not stated: for 13 admitted felonies.] _Ultimately,
any sentence imposed would have been up to the judge._ [Not our responsibility
really.] _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._ [We
were really generous and told Mr. Swartz's attourneys that we intended to seek
something between the maximum and ten times what was appropriate (by our
admission) if he didn't plead guilty]

 _As federal prosecutors, our mission includes protecting the use of computers
and the Internet by enforcing the law as fairly and responsibly as possible._
[Sounds reasonable but does it match their actions?] _We strive to do our best
to fulfill this mission every day._ [But we aren't commenting on the rest of
our mission or how we have done matching this mission in this case.]

------
tibbon
Regardless of time served, do federal prosecutors not realize what the scarlet
letter of a FELONY carved on your chest does to your ability to lead a normal
life? Coupled with occasionally absurd bans from using/owning a computer or
similar device for years (see: Kevin Mitnick) for anyone seen as a 'hacker',
this absolutely destroys a person's life.

I can't imagine how hard finding an apartment in SF (already hard) becomes if
you have to disclose that you're a convicted felon with time spent.

------
ameen
> Our mission includes protecting the use of computers and the Internet by
> enforcing the law as fairly and responsibly as possible.

What were they protecting them against? That Knowledge might've been spread to
those who hadn't the monetary resources to read a bunch of Journals?

Also, I don't think the law was enforced _fairly and responsibly_ , and it was
the exact opposite of what occurred -- A bunch of overzealous prosecutors at
the helm pushing for a maximum sentence for civil disobedience.

------
seanp2k2
Did anyone seriously expect an apology? This is disappointing, but not really
surprising.

This quote esp. got me:

"I must, however, make clear that this office’s conduct was appropriate in
bringing and handling this case."

Strongly disagree, and I hope the docs come out to prove against this point
and burn them.

------
mycodebreaks
Typical lawyer talk. These people are good with words and can talk their way
out.

------
bane
She forgot to say "allegedly".

------
BenoitEssiambre
Incredible: Post by Aaron Swartz describes exactly his prosecutor's reaction.

<http://www.aaronsw.com/weblog/semmelweis>

------
jijji
one less court date on her calendar.

------
thoughtcriminal
Prosecutors (and lawyers in general) are all about drama and story. Everything
is amplified. Reality is distorted. It's worse than cable television.

Ortiz framed a brilliant, selfless young man as a criminal who should be
locked up behind bars. She and others inflicted mental torture on him until he
couldn't bear to live any longer.

She is no doubt a wordsmith, but she is not a nice person, no matter what the
gullible fools on HN say. She shouldn't be working with and against people
anymore, or for the government.

To think that a carefully calculated statement could 'clear the deck' and make
everything even-steven is ludicrous.

~~~
WhaleBiologist
>Ortiz framed a brilliant, selfless young man as a criminal who should be
locked up behind bars.

Law is about drama? There's plenty of drama and hyperbole in your post. He
broke the law. Which means he is a criminal.

If you think the laws are retarded, then how you protest that is your
prerogative. If you choose to protest by blatantly and purposely breaking the
law, unless you are 99.999% certain that an obvious interpretation of the law
violates the constitution, you should expect to get charged and convicted of
breaking said law.

Prosecutors aren't hired to be nice, they are hired to represent the state and
bring charges against people who violate the state's laws. If you seriously
think that he shouldn't be charged with breaking the law because 'he didn't
deserve it', 'he did not have malicious intentions' or 'the law is dumb', then
by extension no one should be convicted of any crime, because there will
always be some point of view where you could think that of anyone.

~~~
RyanMcGreal
> He broke the law. Which means he is a criminal.

He _allegedly_ broke the law. According to network security expert Alex
Stamos, an expert witness in the case, the worst thing you can say about
Aaron's actions is that they were "inconsiderate", not criminal.

[http://io9.com/5975592/aaron-swartz-died-innocent-++-here-
is...](http://io9.com/5975592/aaron-swartz-died-innocent-++-here-is-the-
evidence)

~~~
Kylekramer
Expert witness for Aaron Swartz's defense. If he didn't think he was innocent,
he wouldn't have got the paid job or been involved at all.

~~~
RyanMcGreal
It doesn't change the fact that Aaron was not convicted of breaking the law.
Being charged with a crime does not make you a criminal.

~~~
Kylekramer
Yes, obviously. I never said it was.

------
OGinparadise
_"That is why in the discussions with his counsel about a resolution of the
case this office sought an appropriate sentence that matched the alleged
conduct – a sentence that we would recommend to the judge of six months in a
low security setting....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."_

Yeah, and you added another 9 felonies after he refused the felon label to
help him out.

~~~
BrokenPipe
You know, to make it easier for him to take a decision. Such a nice gesture.

