
Steve Heymann Should Be Fired - aangjie
http://tarensk.tumblr.com/post/42519866696/steve-heymann-should-be-fired
======
twoodfin
_Heymann saw Aaron as a scalp he could take. He thought he could lock Aaron
up, get high-profile press coverage, and win high-fives from his fellow
prosecutors in the lunchroom. Aaron was a way of reviving Heymann’s fading
career. Heymann had no interest in an honest assessment of whether Aaron
deserved any of the hell he was being put through._

Is there any evidence for any of this seeming mind reading?

~~~
ScottBurson
Oh come on. That's like asking "is there any evidence this particular bear
shat in these particular woods?"

The path to success for prosecutors is successful high-profile prosecutions.
Everybody knows that.

I don't actually know that Heymann's career had been fading, but the rest of
this quote seems pretty reasonable based on what we know.

~~~
corporalagumbo
Ah, so the reason why we know this assertion is true is because _everyone_
knows that such assertions are always true?

~~~
ScottBurson
We, the citizens, have set up a system that rewards this kind of behavior. It
would be odd if Heymann _didn't_ respond to the incentives we have placed
before him.

Taren's quote portrays him as ruthless. I concede that we don't know exactly
what went through his mind, but based on the facts in evidence, I think that
that appears to be an accurate characterization. I, at least, cannot imagine
how anyone with any compassion or principles could have looked at what Swartz
did and concluded that it deserved to be treated as a felony worth years in
federal prison.

Anyway, as I said upthread, the point is not so much what happens to Heymann
as it is publicly making the point that Federal prosecutors in general have
too much power and inappropriate incentives.

~~~
corporalagumbo
So basically, you have never met Heymann, have no idea what sort of person he
is, how he behaves, how he thinks, what values drive him, etc. etc., but you
are comfortable portraying him as a moral caricature and confident that there
is little to no need for you to inquire further - because you're proooobably
right anyway. Wonderful.

 _I, at least, cannot imagine_

Try harder. Yeah, maybe they should have sent Aaron off for counselling. He
sounds like he was becoming steadily more and more unhinged. Anyway, Aaron was
pretty tenacious in his illegal behaviour at MIT. He wouldn't back down, and
he got his hand slapped. That happens when you don't back off.

Aaron fits into a class of young men who believe that, because they have lofty
principles which they are sure are correct, and because they are exercising
their skill in a novel domain in which they are experts (computers) they are
or should be above the law, and society should bend to their desires. Heymann
was a critic of this trend - he wrote legal papers on it - and I assume he saw
Aaron as an important case in proving a principle - that headstrong young
white men with lofty ideas are subject to the same laws as the rest of us. So,
his prosecution would have been primarily driven by the deterrence rationale.

Deterrence eh? Seems to be fairly well-established as a prudent rationale for
prosecution in law. Lol. Nah, forget that, Heymann was an ego-driven careerist
monster! Off with his head!

<http://en.wikipedia.org/wiki/Deterrence_%28legal%29>

~~~
Daniel_Newby
> Yeah, maybe they should have sent Aaron off for counselling.

Or maybe some lithium. First he decides that it would be nice to liberated all
the world's documents and _actually tries to do it_. Second his totally
irrational "plan" predictably fails, as in smoking crater fails. Third he
collapses mentally and commits suicide.

That sure walks and quacks like manic depression.

I keep saying that the prosecutors are a red herring. This case is about
Swartz's lunacy first and foremost, and secondly about the digital freedom
opinion leaders who knew how the Feds like to make an example of people and
egged Swartz on anyway.

~~~
corporalagumbo
I don't know if I would call Swartz a lunatic. I would definitely agree that
he sounds highly unstable and that his actions smack of desperation and
recklessness. He doesn't sound like a hero to me. He sounds like a very
unhappy person who failed to find a good path in life. Just look at photos of
him. He looks soft, weak, faltering, unfinished.

And I've said many times that there are red herrings all over the show with
this affair. Those who focus on Aaron's explicit ideology are falling for a
major one, I believe. Similarly with the focus on the DOJ. The only relevant
issue here is Aaron's psyche, and the trend of reckless, idealistic data-
vigilantes trying to place themselves above the law.

------
jmodp
The death of Aaron Swartz is a loss to his family, his friends, and to
society. The focus on the prosecutors, however, makes me uneasy. I can support
a review of the conduct of the prosecutors but I can't call for their firing.
From what I have read, the conduct of the prosecutors was close to standard
procedure. If it was wrong of the prosecutors to make an example out of Aaron,
it is equally wrong to make an example of the prosecutors. This should not be
about revenge although such feelings are understandable. However, it is the
whole judicial system that needs review (and reform).

The focus on the prosecutors takes the focus away from other discussion we
should be having such as the following.

Why should these cases linger for so long?

Why is our justice system so dependent on plea bargaining?

Why can't we create have a hacker legal defense fund that would keep cases
like this from bankrupting defendants?

Why should expert legal advice be only available to those who can afford it?

What should we tell a friend who is planning to commit a crime on behalf of a
cause?

Was Aaron's cause worth anyone's life? This should be a question for everyone,
not just prosecutors.

Is any middle ground possible in the conflict between rights holders and
advocates of free information?

~~~
analog
_"the conduct of the prosecutors was close to standard procedure"_

This is part of the problem. It is standard procedure and it needs to be
changed. Firing those who've acted too aggresively will help to change the way
prosecutors operate.

 _"If it was wrong of the prosecutors to make an example out of Aaron, it is
equally wrong to make an example of the prosecutors"_

No it is not _equally_ wrong because we're not suggesting anything like the
same punishment. Losing your job versus facing decades in prison are orders of
magnitude apart.

~~~
tzs
> Losing your job versus facing decades in prison are orders of magnitude
> apart

Swartz was not facing decades in prison. He faced charges whose maximum
sentences added together reached several decades, but it was all but
impossible to actually receive that kind of sentence.

First, the Federal sentencing guidelines scale the sentence based on the
severity of the particular instance of the crime. Swartz's was low on the
scale for the various crimes he was charged with.

Second, some crimes are grouped. You can be charged with several crimes from a
group, but you are only sentenced for the one in the group with the longest
sentence. I believe this was the case with the Swartz charges.

PS: if PG ever decides to monetize HN, and interesting approach would be a
"show me who down voted" button that costs $1 to use. I'd pay $1 to see who
down voted this.

~~~
analog
Your beliefs on the length of Swartz's possible jail term are contradicted by
the US Department of Justice themselves.

 _"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."_
[1]

[1]
[http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR....](http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html)

~~~
tptacek
The DOJ lied in the press release. They have a habit of doing that. There was
no possibility that Swartz would face 35 years in prison. You can be upset
about that, and that's reasonable, but you cannot synthesize from that upset
the idea that Swartz actually could have spent 35 years in prison.

The consensus among former prosecutors and defense attorneys writing about
this case is that if Swartz had been convicted on all counts, he might have
faced as many as 2 years, but that he also might have avoided a custodial
sentence even if he was convicted.

~~~
btilly
The DOJ did not lie. They just made a correct yet misleading statement.

Incidentally according to Aaron's lawyer, the prosecutors were going to be
trying to convince a judge of a lot more than 2 years. Whether they would have
succeeded in that is an unknown question.

~~~
tptacek
Yes, the nightmare scenario they scared Swartz with was 6-7 years. Which
clearly does qualify as a nightmare. Aaron's last lawyer did not believe that
was a realistic threat.

Either way: my understanding is that 35 years is an overt misstatement of how
sentencing for repeated counts under CFAA works. I stand by the word "lie",
both in its technical and moral senses.

~~~
btilly
I still disagree on the technical sense. 35 years is within the ability of the
judge to assign. Of course the judge wouldn't, and if the judge did it would
be reduced on appeal. But they claimed that that was the statutory maximum,
and if you read the statute you can readily confirm that.

~~~
tptacek
I believe but cannot (due to crappy airplane wireless and the fact that I'm
using my phone to read) confirm that there are elements missing from Swartz's
offense that would have prevented a maximal sentence.

Either way, I assume we agree that the DOJ published the press release knowing
full well Swartz would not actually be subject to 35 years.

~~~
tptacek
Here is a great article illustrating my point (but with whale sushi, not the
CFAA):

[http://www.popehat.com/2013/02/05/crime-whale-sushi-
sentence...](http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence-
eleventy-million-years/)

~~~
btilly
That is a good article.

Ironically I've eaten at that restaurant. It was quite good before it was shut
down. (No, I never had the whale sushi.)

~~~
tptacek
It bugged me that I didn't have a better answer, so I tracked down the
applicable 2012 sentencing guidelines:

[https://www.justia.com/criminal/docs/sentencing-
guidelines/s...](https://www.justia.com/criminal/docs/sentencing-
guidelines/sentencing74.html)

... and in the interpretation most generous to the DoJ I came up with a
sentencing grade of 27, which works out to 7 years for a first-time offender.

I think if you read through the guidelines (they're interesting!) you'll see
right away that there was no way he could have gotten 35 years. I stand by
"the DOJ lied about the sentence in the press release".

------
gyardley
The comments on this post are depressing.

Whatever your attitude about the White House's goofy petition site, the
efficacy of 'online activism', or what-have-you, Aaron Swartz's grieving
partner thinks signing this petition will help shed a little light into the
circumstances that led to his death.

Maybe she's right, maybe she's wrong, but either way, it only takes a second
to do - so just go sign the damn thing.

~~~
chasing
Actually, I'll think about it and discuss as much as I'd like. Then I'll make
a decision to sign or not sign the petition.

~~~
ender7
No offense, but you've managed to wrap up a perfectly decent thought with a
wording that makes you look like an asshole.

~~~
jamesaguilar
To be fair, he's responding someone who is telling us to not talk about the
issue and simply perform the action he favors, in so many words.

~~~
ender7
As I tried to make clear in my comment, I was taking issue with his/her method
of delivery, not what he/she was objecting to. His/her point is a perfectly
valid one, but that's orthogonal to whether he/she chooses to be nasty.

~~~
jamesaguilar
And what I'm trying to make clear is that offensive comments ("don't talk
about it, just do it") sometimes engender offensive responses.

... as you helpfully demonstrated by calling chasing an asshole while
chastising him for being offensive.

------
driverdan
I'm so sick of these useless White House petitions. Yes, they can bring a
small amount of attention to issues but otherwise they accomplish nothing
other than making people feel good for "signing" a petition.

Has there been a single White House petition that resulted in anything other
than an official comment?

~~~
diminoten
I actually think the Whitehouse petitions are harmful to causes, precisely
because they give those who participate a false sense of accomplishment.

~~~
jlgreco
I agree. They facilitate evaporation cooling of causes and movements.

Let the less dedicated participants feel that they have done their part, and
numbers will dwindle. As numbers dwindle only the extreme remain, and in few
enough numbers that the entire cause is then written off as fringe.

It is a phenomena usually seen when cults start ejecting their more moderate
members, but in this case it is harnessed by a separate party.

~~~
larrys
"evaporation cooling"

Exactly if you give people a "complaint department" and a method to file a
complaint you put distance between their anger and the thing they are angry
about and they will many times cool down and not explore other more viable
options (not sure if that is what you meant but it's one of my thoughts about
a process like this).

~~~
jlgreco
That is actually a better way of explaining it I think. Give the majority a
safe way to vent and you'll deflate growing sentiment.

My (probably unnecessary) expansion on this is that when you deflate the
sentiment, all those who remain angry will become more extreme (just by nature
of not being surrounded by less extreme people) and will become easily to
marginalize/fire.

~~~
larrys
I first noticed a similar behavior many years ago when the electric company
pulled the power and we had some issues as a result. We were furious.

Their first response was to toally agree with us and give us the distinct
impression that they were going to "make good". As a result we didn't do
anything we just waited because we didn't think there would be any problem in
restitution. Well time passed and later I had lost my steam when they finally
came around and said "sorry but we're not going to do anything".

------
corporalagumbo
Why not lynch him? If we're going to do mob rule, we should do it right, no?
Pitchforks and torches and all.

~~~
knowtheory
You can claim that this is all pathos and that this action is not merited on
the facts, but your sardoncism about collective action seems misplaced.

I'll even agree that Heymann is unlikely to be fired, but to equate either
TarenSK's suggestion or petition signing with a lynching is both unfair and
unkind.

~~~
newbie12
Her call to action is really misguided. She's making it personal and obviously
(and understandably) is out for blood. However, restrain is called for.
Instead, she should be focused ONLY on getting public access to the materials
under protective order. Once those docs are revealed, the process will take
care of the rest if there really was misconduct.

~~~
scarmig
A lot of faith in the process, there.

For some reason, whenever there's a lot of public anger, the process just so
happens to disproportionately end up going the way of public anger. Not all
the time, but a lot of the time. Cf. healthcare law and its route through the
judicial process.

------
wisty
I've been spamming this opinion on just about every AS thread: Plea bargaining
should go.

It's a SCOTUS issue, but I can't see how it's even constitutional to punish a
person for demanding their constitutional right to a trial. And yes - it's a
punishment, as the expected outcome of a jury trial tends to be much harsher
than a plea bargain. I really doubt under 10% of defendants would demand a
trial if there weren't effectively a penalty for doing so. (Aaron never would
have gotten 10 years, but even 12 months would still be much harsher than the
6 months they offered).

The only reason to plead guilty should be to save time, costs, and establish
contrition (sorry judge, I did it, and I feel bad ... can you give me a
slightly lower penalty?)

I understand that public prosecutors and judges are underpaid and overworked,
but if they can't do their jobs there's no shortage of law grads out there. It
would cost a little more, but if you're locking someone up for 6 months and
can't afford give them a day in court (Aaron's case may have been a bit more
than a day, but I doubt the average court case would take much time at all)
then you shouldn't be prosecuting them at all.

I guess there's not as much scope for corruption though. Privatised prisons
are a massive money maker. Public prosecutors and judges probably don't bribe
(sorry ... support) their representatives nearly as much as prisons.

------
qschneier
FYI the petition link is here [https://petitions.whitehouse.gov/petition/fire-
assistant-us-...](https://petitions.whitehouse.gov/petition/fire-assistant-us-
attorney-steve-heymann/RJKSY2nb)

To me signing the petition is simply to let others know my attitude, and to
let those who hold the same stand know that they are not alone.

~~~
rada
When you are signing a petition titled "Fire Assistant U.S. Attorney Steve
Heymann", it is not to "simply let others know my attitude". You are, quite
literally, petitioning to get the guy fired.

------
idm
I finally created an account so I could sign this. I didn't sign for Ortiz
because I thought she may have had a distant relationship to the case.
However, as Heymann's direct supervisor, I thought she erred in that role.
Heymann, on the other hand, really does sound like he has a history of throw-
the-book-at-them antics, and I think there's a strong need for greater
scrutiny of his career and trajectory.

------
gattis
This sounds like an excellent way to prevent another suicide... oh wait...

------
sylvinus
she mentions 11k signatures but the current count is 2,737. What happened? Did
they remove duplicates? [https://petitions.whitehouse.gov/petition/fire-
assistant-us-...](https://petitions.whitehouse.gov/petition/fire-assistant-us-
attorney-steve-heymann/RJKSY2nb)

~~~
gyardley
That's signatures _needed_ \- the amount remaining before in theory it gets a
response from the White House.

It means people have been signing the petition like gangbusters. Probably
thanks to BoingBoing.

------
geoka9
Do I have to be a constituent to sign?

------
gavinlynch
I hate to be so flippant but: Petitions are one of the most useless forms of
expression I've come across.

