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Aaron Swartz's Lawyer: MIT Refused Plea Deal Without Jail Time (gothamist.com)
348 points by rayiner on Jan 16, 2013 | hide | past | web | favorite | 169 comments

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.

Morris took responsibility and did his time.

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.

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.

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

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

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.

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.

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.

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.

His sentence was probably a lot lighter in in 1988 because back then the only stuff on the Internet was internal to universities/government/research and non-commercial by definition. I am pretty confident the judge, prosecutor, etc. had no idea what the Internets were and had no personal interest in it. There was probably no AUSA trying to make a name for himself as the world's authority on cybercrime. Etc.

More importantly, he was a super sympathetic defendant, not someone who had previously done virtually the same thing to the DOJ and gotten off scott-free.

Let's not forget Morris's father was very, very connected.

OTOH, if you want to see a really politically unconnected, very "unsympathetic" defendant get utterly fucked, the Escher Aurenheimer ("weev") case is a perfect example.

That's what he got, was that also what was sought? Or was that more?

I do not know what was sought. But that is what he got after trials and appeals.

If you want to know more, I'd suggest starting with http://en.wikipedia.org/wiki/United_States_v._Morris_(1991), then following links to sources. It is worth noting that precedents set in that case are directly relevant to Aaron's.

Hah! It took me a moment to realize you must be talking about Robert Tappan Morris. I recall his full name because that's how you refer to convicted felons, which is exactly what he was when I read Cyberpunk as a kid. I certainly wouldn't have guessed tenure at MIT was what the future held for him. Funny world we live in :)

You do realize that he's a founding partner of Y Combinator, which is the entity that runs this website, right?

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?

MIT is doing an investigation (http://web.mit.edu/newsoffice/2013/letter-on-death-of-aaron-...). 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.

> and likely have the clout to see it happen.

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

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.

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.

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.

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

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

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.

Aaron's father met with the chancellor on two separate occasions, so I think that losing a piece of paper is not likely to be the outcome.

I think you make an important point that needs to be realized. MIT, like many other large institutions, is not a single entity, but a collection of many people. While many people have expressed their disappointment with MIT, along with statements such as "How could the university that hired rtm do this to swartz", we have to see that MIT is a big place with many people running different parts of it! While disappointment towards MIT and sadness over Swartz's death is certainly understandable/warranted, we should wait for Abelson's report before we heap scorn, jump to conclusions, and find something to throw on the stake.

I don't think that's entirely reasonable.

When good things happen in "collections of many people", the leaders and the institution take plenty of credit. When bad things happen, the same should apply. And more so, really.

The university is a big place, but that doesn't mean that we can't heap scorn on things they have apparently done.

Of course leadership always bears responsibility to some degree, but remember the MIT you think of when there is great research going on (the professors, researching students, etc.) is also generally the MIT that is supportive of hacker culture, OCW, open access to the buildings, etc.

I doubt that anyone in MIT's library system would have the authority to determine the university's actions in a legal case. These kinds of decisions are probably made at the highest levels: by the president, the board of trustees, and their lawyers.

> These kinds of decisions are probably made at the highest levels: by the president, the board of trustees

Not a place like MIT. The vast majority of their time is spent in money-land. Usually, they are on the fundraising side, lots of grip and grin. Some policy. Not minutiae, and some kid wiring up a closet is under minutiae.

> their lawyers.

Never seen a situation there where the lawyers did anything unless being told. So that is my question: Who told them?

I wouldn't consider a high-profile federal legal case that could (and probably did) reflect very badly on the university to be "minutiae".

The university's general counsel and other lawyers are paid to give legal advice to the university. Why would it be so strange for MIT's president to have taken their advice?

Look, you might be right. Perhaps someone put this on Pres Hockfield's desk along with everything else and she said "We need to make an example of this kid, or the university donations will suffer." or "the university will look weak" or even "the university will look bad to the JSTOR community"

But when put next to: "Who are we going to squeeze for $100M dollars to get the latest bio building", or "How do we get more people interested in STEM at a young age?" usually that stuff is under the category of "What do I have to do to get this off my desk and never see it again?"

BTW: I agree with you that if the library gnomes (or their superiors) were the ones holding the grudge, they would not have the power to do anything, as I mentioned above.

If this was a calculated gamble, then I think it misfired.

If Ableson confirms what this article alleges, no hacker with a shred of humanity would attend MIT.

Was told by MIT's postmaster that half of MIT's Internet budget went to lawyers, for all the times that someone would see something an MIT student posted on the Internet and shout "I'm gonna sue!" Bonzai Kitten kept them more than a little busy for a while.

I don't know the details, but at any institution that large it would be an administrative dean of some kind, or the principal counsel for the university.

Insider here. Almost all legal representation and interactions of the Institute flows through the Office of General Council.

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.

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.)

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:


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.

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.

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).

WRT Ortiz vs Heymann: Ortiz has publicly made comments supporting the prosecution of Aaron Swartz, so it's not true that this is a case of the head not knowing what the hands are doing.

Also, I believe---but correct me if I'm wrong---that Heymann is a civil servant and not a politician like Ortiz. He therefore doesn't serve "at the pleasure of the President" and would be more difficult to dismiss.

But I sorta served in the civil service for a little while in that I had a student worker position at the State of Illinois while I was in college. And one thing I know about the bureaucracy is that they are terrified of politics. They know that they can do things that get their boss sacked, and if they do, their career is over. They won't be fired outright, but they will end up sitting at a desk in the copy room.

So the reality is that if Ortiz is sacked, Heymann will be kryptonite in the DAs office, expect him to resign within six months if he has any dignity at all.

I think you're right. Ortiz position is based on her reputation, while Heymann reputation is based on his position. Meaning for the greatest effect you would remove Ortiz reputation (i.e. stopping any attempt for a political campaign) and get Heymann removed from his position (i.e. demoted).

>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.

Having to win at trial still means you have to go to trial. Which means you commit to spending years of your life in a state of terror because you can't be sure of the outcome, you bankrupt yourself and then your friends and family paying for it, and if you win... you don't get back any of your time or money and there is no penalty for the prosecutors.

I have to say, that sounds pretty darn stressful, and that's if you assume you can win.

Of course if you're just professionally involved, you're not the one that is possibly going to be in a cage for three decades. And if your livelihood not only depends on the existence of these situations, but in fact becomes even more well-compensated as the complexity and therefore stressfulness of them increases, you may even find a way to conjure up justification for the whole charade under some guise of morality and justice, even if for no one other than yourself. And that's a large "part of the reason so many lawyers on HN having been defending Ms. Ortiz".

My perspective probably differs, since I used to work for the public defender and never lost a jury trial, so I can see how most people would find the situation very stressful.

But I do stand by my point that most defendants do not commit suicide.

You keep on referring back to your purported legal background. And then in threads like http://news.ycombinator.com/item?id=5049530 it becomes abundantly clear that the rules do not actually work like you claim that they do.

Please stop trying to argue from personal authority. Say your piece. Cite claims that could benefit from that.

Now you may think that Ortiz was likely to lose at trial. However Orrin Kerr's analysis did not agree with you. (See http://www.volokh.com/2013/01/14/aaron-swartz-charges/ if you want to be reminded of that analysis.) As far as anyone here knows, you're a random internet poster who has not proven to be very convincing on the law. By contrast Orrin Kerr is a respected law professor who is commenting on his area of specialty. Therefore he's arguing from much stronger authority than you are. (And he backed up what he said with specifics of the legal charges and relevant precedents.)

Granick strongly disagrees with you. Beating this drum again: as Granick explains it, had Swartz gone to trial and been acquitted of twelve of the thirteen charges he faced --- disproving 92% of the prosecution's case --- not only would the prosecution not lose credibility at sentencing for bringing an overwhelmingly spurious case to trial, but because unproven "relevant behavior" is material during sentencing, the damages alleged in the 12 disproven charges could still be used to ratchet up the sentence!

What the fuck? "For the crime of X and twelve counts of being falsely accused of Y we sentence you to ZZ years of prison." I never thought the legal system was fair, but comments about this case are revealing a whole new level of bullshit beneath the top layer.

First of all, let me point out that I agree that sentencing is a total cluster f--k.

That being said, the fact that you didn't win on a count doesn't mean that you were "falsely accused." The standard for winning on a count is "beyond a reasonable doubt" or say 95%. The standard for actions being considered in sentencing is "more likely than not" or 50%.

Say the trial proves a 75% probability that you did counts 1-12, and a 98% probability that you did count 13. That means you can't be convicted on 1-12, but because it's more likely than not you really did it, the judge is allowed to consider those counts in determining your sentence, but only up to the maximum for the single count.

The rationale behind this is that the judge is also allowed to consider, in your benefit, things like other peoples' opinions of your character, etc. You don't have to prove beyond a reasonable doubt that, e.g. you're a good husband and father. This cuts both ways--the prosecutor also doesn't have to prove beyond a reasonable doubt that you beat your wife.

Not saying I agree with it, but it has a certain symmetry.

The real problem is that the maximum sentences for any given count are totally ridiculous.

It's not just that losing 92% of their case doesn't cost the prosecution at sentencing. It's that those charges continue to pay dividends to them, even though they're counterfeited by the actual trial.

It seems like one good inoculation against overcharging would be for damages and facts establishing conduct to be fenced off by which charges succeed and which fail, so that failing to convict on a charge puts part of the sentence at risk, as opposed to filling up some freakish "community chest" of sentencing accelerators.

Even the Granick analysis you quoted earlier came to "over a year" for the probably guideline calculation, not 35 or 50. And it never talked about additional charges adding to the sentence in the "sentencing" portion.

She did talk about each additional conviction adding to the maximum possible sentence for a plea bargain, but then said that the guideline calculation is still the same.

She linked a PDF of hers, and I tried to read it, but ironically it requires HTTP authentication to some journal archive which I haven't paid for and don't have access to.

I've also tried going through the 2011 Federal sentencing guidelines to confirm what you gleaned from Granick, but to be honest they're too byzantine for me to get through in a few minutes with no training.

I guess what I'm trying to say is that I'm not sure how you got from Granick to what you're talking about here. Perhaps I missed a linked article from the site hosting her original article?

Either way I don't see how it would make sense to credit '# of charges' alone in sentencing as it is well-known that in general the prosecution has to bring all charges it can prove related to the case, if only because of double-jeopardy.

I haven't seen the Granick analysis. But it's easy to do the guidelines calculation. The base level for fraud is 6, and there is an 18 level enhancement when the amount in question is between 2 and 7 million dollars, as the government claimed. That yields, with no criminal history, a guideline level of 24 and a sentence of 57-71 months if there were no other enhancements. There almost always are. You can drop 2 levels if the defendant "accepts responsibility" which may or may not have happened. There would be 2-3 years of supervised release (no computer) and a fine within statutory limits. The danger with multiple counts is that the sentencing judge may decide to impose consecutive punishments which would exceed the guideline range. In this particular case, which, make no doubt about it, was a political case, Ortiz' office might seek an upward departure because of the defendant's lack of remorse, the PACER incident, and a perceived "danger to the community."

"related conduct, even aquitted conduct, is part of the sentencing calculation."

But why wouldn't that be part of the sentencing calculation?

Let's say I get charged under, say, 100(c), with elements of proof [A, B, C] and 100(d) with elements of proof [D, E, F]. They convict me on all of A, B, C (and therefore find me guilty of violating 100(c)). They find I actually broke D and E too, but not F, therefore I'm not guilty on 100(d).

If D and E are related to 100(c) why should a judge not take that into consideration? The jury confirmed those elements of the charge were true beyond a reasonable doubt.

I have heard from somewhere that judges may consider elements that were not confirmed by the jury as long as there's still a preponderance of evidence to support. That could be an issue I suppose, if you suspect the judiciary is on average corrupt. But even that still passes the "common sense" test IMHO.

Either way, what I got from Granick was that the worst element of the sentencing calculation by far was the loss calculations (which could essentially easily be "blank check"ed by MIT), not that the judge is allowed to consider related conduct proven by the defendant.

> 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.

No kidding. I've been in court before for a victimless crime, and while the max sentence wasn't much compared to 6 months (much less 35 years)--just swallow your pride, plead guilty and move on if you give a shit about your life.

You seem to have completely misinterpreted what rprasad said.

That said before saying you accept a 6 month plea bargain, you should read http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-l... which among other things explains why Aaron could have accepted that and still wound up with years in prison.

But if he would 'likely have prevailed at trial' why would a prosecutor waste state resources pursuing the case?

Serious question.

Political reasons? i.e. the governor/president/mayor/&c wants to make a big mess, and the prosecutor's boss wants them to look good for the mayor.

Unfortunately, because they can. Though generally, "loser" cases are handed off to younger lawyers as training exercises. The lawyers aren't expected to win the case but get the experience of trying a case before a real jury. It's a lot more ethical on the defense side than it is on the prosecution side (because prosecutors are theoretically ethically obligated not to bring a case to trial if they don't think they have a better than 50% chance of winning).

That's clearly not what happened in this case.

Sorry, caught a call

This case didn't get picked up by or delegated to a loser; it was run by one of the most senior computer crimes prosecutors in the country.

What about the OP's point are you trying to contradict?

I know you're really busy with all these other threads that might not have your opinion in them yet, but what exactly is so clear about this complicated situation?

Your comment is the equivalent of spraying a plant with a hose while not actually looking at it.

Can you leave a single thread alone, or do you need to toss out random inconsistent opinions at every single opportunity?

The fact that you don't understand my perspective on an issue, or have decided to put everyone in the world into a "with me" or "against me" bucket, does not mean I'm being inconsistent. I wouldn't bother to respond to a comment like this except that this is such a common pathology it might be helpful to call it out.

What makes this pathology even more annoying is that it suggests we'd rather have punching bags than discussions. It's as if any place we agree on the issues, and any progress we make towards agreement, is something to be mad about.

My guess is you've put me in the "thinks Aaron should have gone to prison" bucket, and thus we disagree about what should or shouldn't be criminalized. But we do not now nor have we ever disagreed that Aaron didn't deserve prison time for downloading journal articles (for fuck's sake). People who steal credit cards online have received suspended sentences.

And if you find anyone anywhere writing online that is making a coherent effort to argue on behalf of criminal sentencing, I'd sure love to know about it.

C'mon man, that's not at all what I said. I don't understand your perspective from your comment because you didn't make any sense.

your comment that i replied to: "That's clearly not what happened in this case."

your comment as it is viewed now: That's clearly not what happened in this case. <i>Sorry, caught a call</i> This case didn't get picked up by or delegated to a loser; it was run by one of the most senior computer crimes prosecutors in the country.

Oh, you "caught a call"? When the phone rings you just hit "reply"?

prosecutors are theoretically ethically obligated not to bring a case to trial if they don't think they have a better than 50% chance of winning

Just curious, are there any ethical obligations not to bring a case to trial if they don't believe that the defendant is guilty? Or it's just the chances of winning that matter?

Prosecutors, in theory, are supposed to seek justice, not victories. (Defense lawyers, on the other hand, are supposed to give their client the best possible representation. If the defense gets a guilty guy off, that's the prosecution's fault.)

Prosecutors shouldn't bring a case unless both a) they think the guy did it, and b) they think they are likely to win. We can debate to what threshold of doubt each of those statements hold, but that's the general gist.

Prosecutors are supposed to zealously represent their client, which in this case is the state. The are required to seek "justice" but necessarily that is defined somewhat more narrowly than in common parlance. They are not supposed to substitute their sense of justice (one way or another) for the state's and the people's sense of justice.

Drug laws are really the best example of this. Prosecutors are not allowed to say "I won't prosecute this case because drug usage is a victimless crime." My mom thinks drug usage is contagious in social circles and a tremendous danger to the youth, votes accordingly, and until that changes it's not right for some unelected prosecutor to second guess her.

Explain these funky ethics? 'Beyond a reasonable doubt' is a different standard than 'preponderance of the evidence'. I would think if you have a 25% chance of being able to win on a 'beyond a reasonable doubt standard' against someone accused of, say, murder, it would be unethical not to prosecute.

It's a side issue, but how lacking in empathy must Ortiz's husband be to criticise Swartz's parents right now. He might be feeling protective towards his wife, but they've just lost their son. Words fail me.

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.

Had JSTOR and MIT both agreed that a non-custodial plea deal was acceptable, the government could (obviously) have moved forward with that deal.

Without the agreement of one of the injured parties, it was ostensibly materially harder for the prosecution to come to terms with Swartz; the "victim" was, in effect, demanding that the prosecution not be too soft on Swartz.

My understanding is that victims are generaly allowed to confer with prosecutors on plea bargains, but have no veto power of any kind (much as they might like to, cf. http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?art...). I'm not even aware that the victims get a hearing with a judge; at most a judge might ask a prosecutor about the outcome of a victim conference. I might be wrong about this, I haven't looked into the rules of criminal procedure in depth.

On the other hand, if a bully prosecutor wants to cover his ass, saying "The victim wouldn't sign off!" makes it sound more like their hands were tied and there was nothing they could do.

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.

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.

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

What does fucking a 13 year old girl in California have to do with Aaron Swartz's JSTOR case? I don't see the connection.

She and her family didn't want to pursue rape charges against Polanski, but the prosecutor brought them anyway.

And in doing so, continued to harm her and her family, decades after the event. Polanski was another example of a prosecutor seeking a scalp for career furtherance.

Is it ok to have underage sex if you get the consent of the parents, then?

I think that Polanski and this case are so opposed in their has-a-crime-been-committed angle that they are worth comparing.

Is it ok to have underage sex if you get the consent of the parents, then?

How do you get that interpretation from me saying "keeping the memory alive for the victim against her wishes decades later"?

I meant generally. In an underage sex case, the state should always prosecute if they have evidence, even if the victim and guardians do not wish it.

If the victim and guardians in an underage sex case can choose to drop charges, then that effectively means underage sex is legal with consent.

With the Polanski case nobody is there any dispute that a true crime occurred?

So you believe in doing significantly more harm to the victim just so the Mounties can get their Man? My mother was a victim of sexual abuse as a child, and she was horrified when she heard of this case - the idea of some independent "white knight" (very sarcastic quote marks there) forcing her to endure reliving those memories almost made her physically sick.

We're talking about a case that was decades old and whose victim didn't want to go forward. It's not a case that is in any sense 'live'. Child abuse and child sexual abuse is present in every country, in every city. Chasing a 30-year-old crime is pointless feathering of one's own cap - instead those same prosecutors could be out there stopping today's child abusers, and preventing today's children from ongoing abuse. There is so much child abuse out there that planting your flag on any one case and saying "This is the one!" is clearly self-aggrandising.

If you are so horrified by the idea of sexual abuse of children, then why be so cavalier with the idea of making victims relive that horror against their mature, expressed consent?

>>>why be so cavalier with the idea of making victims relive that horror against their mature, expressed consent?

Vacri: your comment seems reasonable and educated so I assume that you know the answer to your own question. I'm answering here so that the other folks reading this will also know the answer. I'm not educated about the specifics of the Roman Polanski case, so this is a general comment about the state prosecuting crimes when the victim would like the crime not to be prosecuted.

>>>why be so cavalier with the idea of making victims relive that horror against their mature, expressed consent?

One possibility is the prosecutor "feathering one's own cap" as you said. Another possibility was hinted at in an earlier comment: "prosecutor is representing the state". Convicting an offender of an old crime has the potential to do good things for society. Two of them are:

Bring forth other victims

Create credibility for the claims of future victims("convicted child rapist raped my child" is more believable than "normal upstanding citizen raped my child")

From my understanding, the reason lies in the theories of "crimes of passion/poor judgement" vs "patterns of behavior". If someone commits a crime by accident or in the heat of the moment then certain actions should be taken to explain to them their mistake(e.g. rehabilitation, imprisonment, therapy, probation). If they make a "pattern of behavior" then society can conclude that society doesn't have the tools to convince the offender to end their pattern of offending, and the offender should be physically disallowed from committing future offenses in their pattern:

bad lawyers are restricted from practicing law - "dis-bar-ment"

offending computer users are restricted from using computers

But in Aaron's case, MIT explicitly did want to pursue the charges against him.

I do see that if you were confused about that, they would seem similar in that respect. Thanks.

As for the Polanski case, that's a tough call: should the state prosecute crimes against children when the child (or parent, or both) doesn't want the perpetrator punished? I can see arguments for and against both options. I lean towards going with the wishes of the victims when they are adults, but the fact that the victim is a child brings other considerations into play. Anyway...

> As for the Polanski case, that's a tough call

If he might re-offend it's really not a tough call at all. If everyone is reasonably convinced he won't re-offend is where it gets tough.

IANAL, but plea bargaining is complicated, and it's much more likely for a judge to accept a plea bargain if the victims are also behind it.

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.

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.

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.

"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.

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.

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

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.

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

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.

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?

"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.

A psychiatric hospital would probably have helped, but being in jail does not stop people from committing suicide, and it's silly for you to suggest that it does.

Source: My brother who killed himself while residing in the "second best place" for a suicidal person to be.

To be fair, while psychiatric hospitals are pretty good at preventing suicide, it's not uncommon for them to be ineptly/corruptly run and cause a lot of emotional damage to already fragile people. Not that jail isn't worse, but at least jail doesn't make people who need doctors afraid of doctors.

I'm very sorry for your loss and for not properly qualifying what I said. I didn't consider that a person who has suffered through this very situation might read what I wrote.

Yes many people do commit suicide in jail. But most of those people are not known to their jailers to be suicidal and thus the proper precautions cannot be taken.

If the jailers know an inmate is suicidal (as Aarons would have if his lawyers told them) they are mandated by law to do everything in their power to prevent it. Right down to them being housed nude in a "rubber room" on 24/7 video surveillance.

Of course, it's extremely difficult to stop a truly determined person from committing suicide but the risk level is certainly much lower if that person is in jail and known to be suicidal than if that person is free in society.

> I didn't consider that a person who has suffered through this very situation might read what I wrote.

That's par for the course these days.

> If the jailers know an inmate is suicidal (as Aarons would have if his lawyers told them) they are mandated by law to do everything in their power to prevent it. Right down to them being housed nude in a "rubber room" on 24/7 video surveillance.

I'm so glad to hear they had just the right environment for Aaron waiting to lovingly receive him. If my sarcasm is shining through then my apologies but I have a hard time dealing with all these well intentioned horror scenarios.

>>I'm so glad to hear they had just the right environment for Aaron waiting to lovingly receive him.

However horrible that might have been, it would have been better than the alternative...

Says fucking who? No really. Why do some people think they get to decide what level of inhuman treatment is enough that choosing to end one's own life is the rational choice? If one does not have the right to end their own life, one was never truly free.

The concept of physically restraining someone from committing suicide is completely antithetical to the idea of man being free. You cannot believe in one while advocating for the other.

> The concept of physically restraining someone from committing suicide is completely antithetical to the idea of man being free. You cannot believe in one while advocating for the other.

Suggesting that you put someone in a "rubber room" is a bit ridiculous, but it's normal to put someone that is suicidal under suicide watch. Keep in mind that mental health can be a huge factor in someone being suicidal. In other words, they're not thinking straight, so it's fair to help them during that time.

Having the right to end your life is different than others trying to help you through a challenging time and show you that there are other ways out.

>Keep in mind that mental health can be a huge factor in someone being suicidal. In other words, they're not thinking straight, so it's fair to help them during that time.

Using the mental health angle to deny someone their most basic right is fraught with issues. Mental health is often defined in terms of conforming to the standard behavior under various measures. We define mentally unhealthy as sufficiently deviant behavior and use that as a rationale for restricting that behavior. This is a thinly veiled attempt at forcing conformity under a scientific premise. Unless one can be demonstrated to be out of touch with reality, we have no right to physically intervene with someone exercising their right to self-determination. If you believe this right has caveats, then you simply never believed in it to begin with.

How do you "demonstrate one is out of touch reality"?

That's just as difficult to define. My argument is that there's no black or white answer.

I think you can demonstrate it in obvious cases: "what color is the sky"? "Potato". Barring cases such as these we would err on the side of allowing one to exercise their right to self-determination. Using the nebulous "depressed" definition as a justification is absurd. Sure, do everything you can to convince them that suicide isn't their only option. But ultimately you must accept that it is not your decision nor the state's.

A whole lot of people who were prevented by law enforcement and mental health staff from killing themselves would disagree with you.

If someone is truly determined to end their life no human can stop them, only delay them for a little while.

>If someone is truly determined to end their life no human can stop them

Tell that to all the Bradley Mannings of the world.

There it is.

You mean the alternative of him being set free?

You're arguing from a false dichotomy here, there are a lot more options than the ones that you see, and most of them are arguably a lot better than the ones you put forward.

I mean the alternative of him being dead.

Yes, there were other alternatives and jail certainly wasn't the best one. My point is simply that it would have been better than what ultimately happened, so given that, it's not so terrible the prosecutor suggested it.

> I mean the alternative of him being dead.

I got what you meant, but what ultimately did happen is not relevant when you're speculating, what should have happened is and the prosecutors suggestion is moronic.

Part of the whole idea of having a justice system is that you do what's best for society. Putting otherwise superbly functioning human beings naked in a rubber room is such a spectacular waste of human potential that I really have a problem just contemplating such things, it is like having my head defiled.

"otherwise superbly functioning"--highly functioning people don't kill themselves, not even in aaronsw's situation.

The twin ghosts of Alan Turing and Socrates would disagree with you. Of course you're now going to argue that they were in a different situation, but both were apparently unable to reconcile living with the injustices heaped upon them by society and there is parallel with Aaron there.

At least the way I meant it, there's a difference between "highly functioning" (even "superbly functioning") and "intelligent" or "accomplished"--and in any case, Socrates was sentenced to death and chose to accept his sentence rather than escaping from prison, so there's that.

You completely miss the point of the Socrates reference. I'll be lazy and quote wikipedia at you: "According to Xenophon's story, Socrates purposefully gave a defiant defense to the jury because "he believed he would be better off dead". Xenophon goes on to describe a defense by Socrates that explains the rigors of old age, and how Socrates would be glad to circumvent them by being sentenced to death. It is also understood that Socrates also wished to die because he "actually believed the right time had come for him to die."


Even ignoring the sentencing of Socrates, Socrates refusing Crito's offer seems to me a clear cut case of suicide. He is offered a chance to avoid his murder and turns it down, in essence making the decision that his life will come to an end.

Now, Socrates of course offers a rational defence for his refusal to save himself so if we accept the refusal as an act of suicide we also accept that suicide can, at least in some circumstances, be the product of a rational train of thought.

Plato's accounts of Socrates offer us a superb platform on which to reason about this sort of thing. Helps to filter out a lot of the modern victim-blaming cruft that has built up over the past few centuries.

"we also accept that suicide can, at least in some circumstances, be the product of a rational train of thought."

Man, what a leap. Instead we could accept that humans are not rational, which makes a lot more sense.

You don't think Socrates' response to Crito was rational?

I mean, I don't agree with it, I think his values are misplaced, but I'd still say it is rational. As rational as any human reasoning could be, and really that is the only sort of 'rational' that is relevant. His argument was not the confused ravings of a mentally ill man.

There are many kinds of rational thinking, human and otherwise. And I find his arguments entirely unconvincing no matter what assumptions I put in his thinking. The difference Socrates claims is important - the difference between people's opinion of justice/injustice against him versus the "truth" does not exist in ancient Athens democratic period, after all trials were decided by majority vote.

So "people's" opinion of him and the idea of something being just or unjust - are the exact same thing according to the law of the Athenian state. The same goes for the contract. He does not disagree with Crito's argument that people would find it reasonable for him to flee given the chance - which makes it right under Athens' law. In the end, it is the law as interpreted by the court that determines what is lawful and/or right.

I think the rest of his argument does not make sense in this light. I do not see any indication that it made sense to him. Given his argument, and the attitudes of other Greek stories from that period - I would say that he simply wanted to die, wanted out, because people rejected him - not because he would be violating some ideal. Moving away was not an option since it would mean admitting defeat, it would mean saying he was wrong. There's more stories from that period involving suicide for social reasons or rejection.

I remember thinking like Socrates did when I was a child - that rules presented some absolute "background" standard of behavior that nobody could physically ever violate. Life taught me that I was simply misreading the situation, nothing more. I understand now that I remained stuck "believing" in this absolute law because it enormously simplified the world I had to deal with. I was perfectly aware it did not work, but I had to get into bad situations to get shocked enough to see reality for what it was.

OK, thanks.

So we define proper mental health as people who would not ever kill themselves? How convenient for you.

That's how it's usually defined, maybe with the exception of terminal illness or mortal injury.

And it doesn't bother you how circular that is?

1. Anyone who would kill themselves is not mentally well

2. We cannot allow you to kill yourself because you're not mentally well

There are exceptions; can you argue that this is one of them or do you just enjoy disagreeing with people?

I'm not sure what point you're making regarding exceptions. But I don't believe those exceptions are enough. Being able to remove someone's right because you don't like how they choose to exercise it is no right at all. Either you believe in a right or you don't.

I didn't say anything about rights.

Forgot which thread I was in. Either way, circular logic is circular.

Preventing him from killing himself, by any means necessary, would have been best for society.

If he were in a psychiatric hospital the treatment wouldn't have been much different. They also use rubber rooms and cameras, if necessary.

Outside of those two options, I'm not sure what you are implying could/should have been done. Was the prosecutor supposed to follow Aaron around 24/7 and physically stop him from hurting himself?

> Was the prosecutor supposed to follow Aaron around 24/7 and physically stop him from hurting himself?

I think the prosecution was simply supposed to not charge him at all because despite the fact that aaronsw's actions would have led to any other random computer geek being arrested with nary a second thought on HN, this computer geek is more deserving. After all, he's just trying to "do the right thing".

Hell, in fact the prosecutor should be ashamed of daring bring any charge against someone who only went out of his way to visit some other campus than his own, evade a 1-file-at-a-time control, evade an IP ban, evade a MAC ban, evade a Wifi ban, and hide his face while trespassing in an unlocked server room, where the only reason he even got caught at all was because he simply wouldn't give up. Next thing you know they'll probably start ticketing jaywalkers.

Finally, someone who realizes he wasn't some magical saint who was murdered in a back alley. Any suicide is a tragedy, but it's ultimately no one's fault but Aaron's.

The blame for the suicide ultimately cannot be laid anywhere but on Aaron's shoulders. But that does not mean that everything else is hunky dory. I would have (and DID) objected to the prosecutor's overzealous prosecution of this case even if Aaron had not died. Nor is it fully the fault of a single prosecutor who was using the same techniques used routinely. Perhaps a change to the system is needed.

More simply: the ultimate fault may be (is) Aaron's, but that does not mean that it is "no one's fault but Aaron's" -- there is blame enough to go round.

Or not pursue charges based on politics, and instead focus on the 'good of society'.

Step back a bit.

They charges didn't even need to be pursued. What "good" was ever going to come of it in any possible situation where charges were pursued?

That's got nothing to do with how the prosecutor should respond to being told he is suicidal. I agree he shouldn't have been prosecuted.

... Yes it is. If I think these charges probably aren't going to do anything good, and they could kill someone, I might consider not pursuing them (being reasonable)... Easy to say this in hindsight, but it is not unrelated.

>Preventing him from killing himself, by any means necessary, would have been best for society.

Please explain this one to me. I would love to see what you come up with. I can think of about a thousand reasons why it isn't.

does "by any means necessary" include not throwing the book at him?

"If the jailers know an inmate is suicidal (as Aarons would have if his lawyers told them) they are mandated by law to do everything in their power to prevent it."

There are a lot of wonderful resources about the American prison system that you should explore. You could check out prisoners legal services to start and see the ongoing case histories they are dealing with to get a partial view of what life is like in prison in America.

So then Aaron would have gotten the Bradley Manning treatment. Great. I'm sure that would have helped.

I disagree.

Unless he is specifically on suicide watch, suicides in jail do happen.

Also, and more importantly, even if they did send him for a 72-hour hold, it is quite possible that they wouldn't hold him for the full 72 hours, or ONLY 72 hours, and then release him.

It is also likely that a brief arbitrary taste of jail would increase his fear of prison, thereby making a suicide more likely.

The jail "offer" was clearly meant to be insulting and does not merit consideration as a serious option in this case.

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

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.

You forget the Federal Sentencing Guidelines. His level, minus enhancements, based on $5 million fraud, (according to the indictment) yields a sentence of 57-71 months plus 2-3 years of supervised release (no computers) plus a fine. That's a good deal more than, "a couple of years."

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

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.

Federal prosecutors are appointed, not elected.

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.

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.

Actually, Aaron only need to look at what happened to Kevin Mitnick. Aaron will no longer be able to work his life's causes.

couple of years is enough to get you the full "prison experience"...

If my lawyer told me that the threat was garbage and that I'd be able to get a plea bargain somewhere between a few months and nothing at all for something I did purely out of civil disobedience, I wouldn't exactly kill myself.

All I can say is that some people aren't cut out for prison, and there was no indication that "nothing at all" was a possible outcome, save one's faith in the jury system.

However, my point was to note the contradiction in you saying that prosecutors can't be swayed by emotion, while they conduct themselves so as to sway their targets with same. If you don't think that the threat of a long prison sentence would spur emotion in the person receiving the threat, well, I don't know what to say.

The negotiations were over whether he should serve any jail time at all.


>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.

He wasn't exactly the reckless insane type. Some people prefer death than jail, and it seems reasonable if you're able of empathy and really consider what a person goes through in jail. It's a matter personal freedom and it should be respected, otherwise one might be implying death was too good for him.

I wonder whether or not his defense lawyers filed any motions about Swartz's fitness to stand trial. If they really thought he was suicidal, that would be part of their job and it happens all the time.

To put forth that argument, would Swartz have needed to make himself subject to involuntary commitment? Could that have created more problems for him than it would have solved? He gets locked up, even before trial, and it could all be for nothing.

I really don't know. But if his lawyers were discussing his mental fragiility with prosecutors, it seems to me that they would have had a duty to their client to bring such a possibility to the court's attention. If you really think your client is suicidal, treating his her mental state as a bargaining chip in negotiation without trying to put the trial on hold sounds ethically dubious.


> 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?

It depends what you are trying to do: punish defendant for his crimes, or give an example for the public. Of course the (mental) health of defendant should be taken under consideration when sentencing.

This wasn't sentencing it was prosecution and I disagree that the mental health of the defendant should be taken into consideration when the cause of the mental health breakdown was facing the punishment for his crimes. If it led to them committing the crime in the first place, perhaps, such as a schizophrenic assaulting somebody, but that isn't the case here. Aaron got depressed because he was caught and prosecuted. That should not warrant them going easy on him.

There are plenty of valid reasons the prosecutor here should be fired and laws changed, but Aaron's emotional response to being prosecuted is not one of them.

So essentially - since the thought of potential jailtime makes him suicidal let's just actually put him in jail and stop the suicide. Is that what you are implying? In that case I am speechless. Especially when the point of contention in this case was whether or not the prosecution was over zealous in demanding jail time in the first place.

It's not 'since the thought of...' it's just that 'since he is suicidal'. The fact that he was suicidal because of the thought of going to jail is irrelevant to the prosecutor, as it must be. They can't allow such emotional responses to weigh on their decision making or they wont be able to effectively do their job and they'll open themselves up to deceptive manipulation.

I don't think it's reasonable for any of us to sit in front of our computers and say that his choices/decisions were reasonable or unreasonable. He was depressed and facing a 50 yr sentence and most of us don't know how that feels.

But I will say this - http://www.thedailybeast.com/articles/2013/01/15/aaron-swart...

He had options. He could have got a plea bargin and stayed in jail for 4 months and pleaded guilty. Of course, nobody knows how this would have turned out until the prosecution plays it out in court, it could have been drastically less or more since it was a crime without physically harmed victims akin to violent crimes. He had influence, he could have still fought the fight like he always did and used his story to make clear the inefficiency and injustice served to him by the system that convicted him. This would have boosted his credibility up much more than where he's at now because he went through jail for his cause.

My point is, there were many options, we don't consider all of them. He didn't need to become a martyr. As great as he appears to be dead, he would have been much greater alive.

I've resisted commenting on these threads, we'll all know more in the coming months. I do have a question as we're shifting blame and responsibility.

Does anyone know if Aaron ever received treatment for his depression? Did he talk to any doctors or anything? Does anyone know?

Just curious. Presumably folks close to him encouraged him to talk to somebody over the years.

On the contrary, prosecutors should allow themselves to be influenced by emotional pleas. I think your social responsibility to respond to these emotional signals increases as you have more power over others, not the other way around like you seem to suggest...

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