
Aaron Swartz's Lawyer: MIT Refused Plea Deal Without Jail Time - rayiner
http://gothamist.com/2013/01/15/aaron_swartzs_lawyer_mit_refused_pl.php
======
philwelch
This isn't looking good for MIT--in fact, it looks outright schizophrenic. How
can you give a professorship to the architect of the Morris worm but not even
sign off on a plea bargain with someone who just downloaded a bunch of JSTOR
papers? Maybe some of the powers that be at MIT are in too deep with the
academic publishing industry, if not apparently JSTOR in particular.

~~~
MichaelSalib
Morris took responsibility and did his time.

~~~
btilly
Robert Morris did not "do time".

He got community service, probation and a $10k fine. There would have been no
general outrage, and no suicide, if the prosecutor sought a similar penalty in
this case.

~~~
lawnchair_larry
He also fought his case to the end, and even appealed. He did not take a plea
deal. His sentence was relatively light because a judge said that the
punishment did not fit the crime.

Honestly, Morris got extremely lucky. I'd be curious how he funded his
defense, because that case seems to have gone on longer than this one.

~~~
arjunnarayan
Robert Morris's father was in a position to pull some strings/fund the
defense. <http://en.wikipedia.org/wiki/Robert_Morris_(cryptographer)>

~~~
lawnchair_larry
I think you over-estimate how well the NSA pays, among other things.

~~~
phaus
You won't get rich, but at the higher levels, you can make a pretty good
amount of money.

GS-15 starts around 120k for base pay, if you are a "research scientist"
there's an identifier that can add 80-100k. The cost of living increase near
the NSA hq is about 21 percent of base pay. I hear there's levels above GS-15,
but I've never seen the pay chart for them.

~~~
mpyne
There's no level above GS-15 per se, but there is a higher tier of civil
servant called SES (Senior Executive Service), which is approximately
equivalent to Admiral/General-level rank in the military.

I believe the pay for SES and above (e.g. appointed officials) is defined by
what's called the Executive Schedule.

~~~
phaus
SES is what I was thinking of. As you noticed, I'm not that familiar with how
it works, I was just aware that there is something that pays more than the
standard GS payscale.

~~~
lawnchair_larry
Right, it's definitely respectable, but the costs were projected to be in the
millions. Generally people making 150k/year or so cannot afford this.

FYI there is a hard cap on the payscale (according to wikipedia) of 155k.
After base+adjustments+modifiers, it cannot exceed level IV of the Executive
Schedule or something to that effect.

------
jpdoctor
I've posted this elsewhere: Who _exactly_ refused?

MIT is a collection of many people. I spent 14 years as undergrad/working/grad
there, and I'm wondering how this went down. (I knew both Vest and Rief, not
Hockfield, but I find it hard to believe this issue made it anywhere near
their desks. I would have guessed some clown in the library system, but
frankly that doesn't make sense either.)

Any insiders know?

~~~
gbhn
MIT is doing an investigation ([http://web.mit.edu/newsoffice/2013/letter-on-
death-of-aaron-...](http://web.mit.edu/newsoffice/2013/letter-on-death-of-
aaron-swartz.html)). Presumably the outcome of that will be these kinds of
details.

It's looking to be a hard time for those responsible, to be honest. If the HN
crowd is up in arms, there are probably many at MIT wanting to see
retribution, and likely have the clout to see it happen.

~~~
jpdoctor
> _and likely have the clout to see it happen._

Hal Abelson is respected enough that even I will be curious to see his result.

~~~
scarmig
I'm up in arms about the prosecution and suicide, but Hal is one of the few
people I trust wholeheartedly to tell the truth about MIT's involvement. So
much so that if he came to a conclusion "It was an oops, a piece of paper got
misplaced and no one at MIT's at any fault," I'd accept it without a second
thought.

~~~
jacquesm
I think you just gave them an out.

I hold dr. Abelson in the highest regard but if that were his conclusion I
think that might change. Such a conclusion would indicate sloppy work, a
single misplaced piece of paper could not have had these consequences within
an organization such as MIT. For want of a horseshoe the kingdom was lost, but
this is not the 14th century and enough people knew about this case that I
highly doubt a single piece of paper could have had that effect.

~~~
jpdoctor
I know what scarmig means: I believe Hal would resign before putting out
falsehoods or a whitewash.

Also, I don't consider it "them" so much as "us". I may have been a mere cog,
but still love the place 15 years later.

~~~
jacquesm
> I believe Hal would resign before putting out falsehoods or a whitewash.

I believe so too. But that particular example wasn't very good.

~~~
btilly
The point was that, no matter how apparently ridiculous the conclusion,
scarmig would accept it without question because the source was that credible.
The more exaggerated the hypothesized conclusion, the more strongly that point
was made.

I believe that scarmig's example very clearly stated his position.

I would bet large sums of money that I do not actually have that the
conclusion we get will nowhere near that ridiculous. I would bet reasonably
large sums of money that Abelson will prove not corruptible on this issue.

------
fleitz
If Ortiz's husband feels it's unfair perhaps instead of the government firing
her, she should be brought up on obstruction of justice charges totalling 30
years and then be offered a 6 month plea.

Perhaps it's time more senior prosecutors 'sent a message' to more junior
prosecutors by putting one of them in jail for a ridiculously long time. Or
perhaps sentencing some people to ridiculously long sentences while letting
most others off scott free is a really crappy way to run a justice system.

~~~
rprasad
It's likely that Ms. Ortiz would choose to fight such charges, i.e., go to
trial, and would triumph before a jury. This is generally the outcome when the
government tries to pursue outlandish charges -- it loses in court.

Thus, the desired effect of putting a senior prosecutor in jail for a
ridiculously long time would not occur. Note however, that prosecutors have
lost their jobs where clear misconduct took place (see, for example, the
former Alaska federal prosecutors who took down former Sen. Stevens).
Misconduct in this sense means something unconstiutional, i.e., hiding or
destroying evidence. Playing rough in plea negotiations is not misconduct,
since the other party does not have to play along and has the constitutional
right to go to trial.

Note that there is no constitutional right to a plea bargain; that is an
administrative convenience offered by the prosecutors to avoid going to trial.
If a prosecutor offers you a really good plea bargain (i.e., 6 months on a
charge that carries a max penalty of 35 years), _you always go to trial_. A
generous plea bargain means that the prosecutor has a weak case. (This is part
of the reason so many lawyers on HN having been defending Ms. Ortiz--based on
the charges and evidence publicly known, nobody would have expected Swartz to
commit suicide because he would likely have prevailed at trial and should have
been advised of this by his lawyer.)

~~~
tptacek
I do not see many lawyers on HN defending Carmen Ortiz. Additionally, gotta
remember that part of the problem with the Ortiz witch hunt is that Ortiz
isn't the most important target. Stephen Heymann, who managed the day-to-day
of the trial, isn't just a very senior prosecutor; he's also a national
authority on the prosecution of computer crimes.

Moreover, outside HN, I see widespread condemnation of the behavior of the US
Attorney's office in Boston. See this story:

<http://news.ycombinator.com/item?id=5064128>

Jennifer Granick has defended federal computer crimes cases in Boston and goes
farther than questioning the behavior of the prosecution, but actually comes
out and says that she believes that particular prosecutor's office has a
reputation for immorality.

~~~
gyardley
I agree that Stephen Heymann played a more direct role. However, Carmen Ortiz
was his boss and therefore responsible for the work of her employees, and her
firing will also have beneficial effects.

First, her sacking will make every other US Attorney in the country take a
very close look at the actions of their subordinates. If Heymann goes but
Ortiz stays, I'm not sure the rest of them will sweat nearly as much.

Second, Ortiz's firing should still sink Heymann's career as a prosecutor - if
his actions get his boss sacked, I can't imagine the next political appointee
to supervise him will give him much leash.

Well, may they both be fired.

~~~
rdl
Disbarring Heymann for misconduct would effectively end his career in law.
That's probably the most that could happen to him (aside from SEO following
his name for the rest of his life as an incredibly douchey scumbag).

------
siganakis
Why would the DoJ require that MIT "sign off" on the plea deal? As this was a
criminal matter, I thought it would have just been between the government and
Aaron.

Or does the DoJ have to get approval from victims before offering a plea deal?
I can't imagine the victim of an assault or rape being terribly happy "signing
off" on a plea for their attacker.

From a bit of reading it appears that victims have to be informed of any plea
bargain and that their needs must be "taken into consideration", but I cannot
find anything that states that the plea must be "signed off" by the victim.

If this is the case, then this story seems rather flawed.

~~~
danielweber
Your understanding goes with mine (which may also be confused). Victims'
opinions should matter to the prosecutor, but not be the end of the story. The
prosecutor is representing the state, not the (alleged) victim.

Roman Polanski is the most obvious example.

~~~
mpyne
It's the same way I understood it as well.

In fact, it's the only reason I can see that the prosecution could proceed at
all without JSTOR's support, is under the idea that the prosecution is
responsible for the state's interests and not only the victim's.

~~~
erichocean
It proceded with MIT's expressed consent: MIT wanted Aaron punished with jail
time and a felony, and explicitly refused lesser sentences.

------
doe88
Wow, and I don't say that lightly I'm disappointed at MIT. That will never
change the utmost respect I have for their scientists, nevertheless I think I
won't be able to forget the role of some of them in this tragedy before a long
time. Anytime I will read 'MIT' written on a paper there will be something
tainted/broken, these three letters lost a lot of credit in my mind in this
episode.

------
benatkin
It doesn't appear that this article contains any original reporting. It just
contains a headline which oversimplifies a statement in another article. Since
his lawyer didn't elaborate they should use something close to the words that
his lawyer used.

------
anigbrowl
I'm unclear on how MIT would have had standing to block a plea deal. The
victim doesn't have any legal say in the progress of a criminal prosecution,
so you can (say) forgive someone who criminally assaulted you but that won't
immunize your attacker from prosecution.

------
nonamegiven
"It was driven by a desire to turn this into a significant case, so that some
prosecutor could put it in his portfolio."

That's always what these things are about. Aaron Swartz, to Ortiz and her
henchman, was not a criminal who needed punishment, he was an opportunity.

------
nonamegiven
People on the administration's side make a big deal about the six months the
prosecution was offering.

But that was an alternative to the extortion of the administration seeking 30+
years.

The administration was telling Swartz to go to jail for six months before he
ever had a trial.

That's not justice.

------
zallarak
Wow, that is disappointing. I had higher hopes for MIT.

------
patrickgzill
It is amazing that only now, after he is dead, do we find out the truth. If he
had kept living, none of this behavior would have come to light.

------
tantalor
This article doesn't even mention the word "plea" except in a pull quote.
Please, don't bury the lead.

------
johnpowell
Just some perspective here. A fellow nerd did more than six months in
Tennessee for smoking weed in a public park. If six months was on the table I
am not sure why he didn't take it. I would have.

------
deckchain
I don't think universities can demand anything. I believe it is up to
prosecutors to proceed with or support plea agreements. Why was MIT asked at
all if the punishment was acceptable?

------
wilfra
"When one former lawyer told prosecutors that Swartz might kill himself,
"Their response was, 'Put him in jail. He’ll be safe there.'"

I know this seems heartless and terrible at first glance but it's actually a
pretty reasonable response. Prosecutors can't allow themselves to be swayed by
emotional pleas like this and how are they to know if it's even true? Are they
supposed to be lenient on any defendant whose lawyers say their client is
suicidal? Isn't it obvious the end result would be every defendant claiming
this?

If anything, this shifts some blame to his lawyers for not taking his threat
seriously enough. Somebody who is a danger to themselves is legally supposed
to be locked up, typically in a psychiatric hospital. Jail would have been the
second best place he could have been. In both he'd have been physically
prevented from being able to commit suicide. Even if he would have had to
suffer even more emotionally through the ordeal, he'd still be alive today.

~~~
rhizome
Are you really implying that a prosecutor's threat to put you in jail for 30+
years wouldn't motivate you through emotions?

~~~
anigbrowl
The maximum sentence for a crime is defined by statute, rather than being some
special threat by prosecutors. For wire fraud it's 20 years, even if your
fraudulent scheme was designed to enrich you by only $1. Sentencing is
determined by the court after conviction; it's unlikely that he would have
been sentenced to more than a couple of years.

This thing of focusing on the maximum possible sentence is a bad habit
inculcated by the media. It's more instructive to look at the median sentence
for this kind of crime.

~~~
SoftwareMaven
The prosecutors sure didn't hesitate to pull out the maximum sentence in their
press release. They made it clear they wanted it _all_.

~~~
anigbrowl
That's what you get for having elected prosecutors. But quoting the statutory
maximum as a matter of fact for a soundbite and asking the court to impose it
(which it seems they were not about to do) are very different.

~~~
rhizome
Federal prosecutors are appointed, not elected.

~~~
anigbrowl
That's true, but they are political appointees and most have been have pursued
the path of running for DA or attorney-general in state and local elections.
Sorry for the confusion, I suppose I should have said that the trouble was
that the office of prosecutor is political (as opposed to professional) in the
US.

~~~
rhizome
It is expressly not (supposed to be) political, but how you interpret that is
up to you. See: Monica Goodling, Tim Griffin, et al. As far as aspirants to
elected office goes, Giuliani is a rarity among federal prosecutors more than
he's an exemplar, most are lawyerly lifers. It's like saying kernel hackers
are secretly pining to become marketing executives.

