Aaron Swartz's Lawyer: MIT Refused Plea Deal Without Jail Time
gothamist.com
gothamist.com
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.
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.
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.
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.
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.
I believe the pay for SES and above (e.g. appointed officials) is defined by what's called the Executive Schedule.
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.
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?
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?
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?
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 Ableson confirms what this article alleges, no hacker with a shred of humanity would attend MIT.
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.
Hal Abelson is respected enough that even I will be curious to see his result.
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.
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 so too. But that particular example wasn't very good.
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.
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.
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.
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.)
Serious question.
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.
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?
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.
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"?
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 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.
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.
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.
But I do stand by my point that most defendants do not commit suicide.
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 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.
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.
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.
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.)
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.
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.
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.
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.
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.
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.
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.
Roman Polanski is the most obvious example.
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.
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...
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.
I think that Polanski and this case are so opposed in their has-a-crime-been-committed angle that they are worth comparing.
How do you get that interpretation from me saying "keeping the memory alive for the victim against her wishes decades later"?
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?
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?
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
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.
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.
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.
Source: My brother who killed himself while residing in the "second best place" for a suicidal person to be.
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.
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.
However horrible that might have been, it would have been better than the alternative...
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.
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 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.
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?
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?
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.
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.
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.
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.
Man, what a leap. Instead we could accept that humans are not rational, which makes a lot more sense.
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.
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.
1. Anyone who would kill themselves is not mentally well
2. We cannot allow you to kill yourself because you're not mentally well
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.
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.
That's just as difficult to define. My argument is that there's no black or white answer.
If someone is truly determined to end their life no human can stop them, only delay them for a little while.
Tell that to all the Bradley Mannings of the world.
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.
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.
The jail "offer" was clearly meant to be insulting and does not merit consideration as a serious option in this case.
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.
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.
http://www.americanbar.org/groups/professional_responsibilit...
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.
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.
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.
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.
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.