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Re: undefined

#51

Post by rhizome »

gojomo wrote: post #35
downandout wrote: post #32

Earlier quoted context omitted.

Linus isn't wrong. She made two directly conflicting statements in press releases, which is what he pointed out. The first, which she made at the outset of the case, was that he was facing 35 years if convicted at trial. They make statements like this in order to foster plea discussions, which resulted in the 4-6 month offer she mentioned in the second statement. While this would be considered extortion in any other…

In the weaselly shades of English used by lawyers and politicians, the two statements highlighted by Torvalds do not necessarily contradict one another. The older statement accurately describes the maximums the law allows, and was used when that was the emphasis. (At the time, the DoJ probably didn't know themselves what sort of sentence they'd ask for, so the only informative and unfalsifiable thing to put in a PR s…

It's not uncommon for Judges to reject prosecutor's sentencing recommendations in favor of harsher penalties.

http://www.legalinfo.com/legal-news/judge-exceeds-prosecutor...

http://www.cadillacnews.com/news_story/?story_id=1806284&#38...

Michael Vick experienced this: http://sportsillustrated.cnn.com/2007/writers/michael_mccann...

Judges don't have to respect plea agreements or prosecutor's promises to the defendant:

http://criminal.lawyers.com/Criminal-Law-Basics/Plea-Bargain...

Reading their words "fairly" is to read them as they appear on the page. If you want to give them the benefit of their vaguery, then we can equally reasonably interpret their words as if they describe the greatest risk at hand.

After all, you want one side of the vagueness fence to say "hey, technically they weren't saying anything," while the other side of that same fence is "wow, look at the sum-total of their words and the threat they describe." Both interpretations are valid, you're just favoring the legalistic over the layman's.

Re: undefined

#52

Post by ck2 »

I don't understand why people don't get the LAW should have been on trial, not Aaron's actions.

Aaron was an activist. He purpose broke what he considered unfair laws and tried to set free information he thought should be free (or was technically free in the first place).

I think he committed suicide because he thought he was going to be Bradley Manning-inged. I wish he would have waited a little longer and had a little more hope but it's easy to be cool and logical from a comfy chair, meanwhile his mind was facing darkness.

Re: undefined

#53

Post by rhizome »

jacquesm wrote: post #46
rhizome wrote: post #41

Earlier quoted context omitted.

And when you have a situation like that where neither is "technically false," it's called "talking out of both sides of your mouth." However, besides the point, is "misleading the public and the defendant" a professional standard for federal prosecutors? In addition to repealing the CFAA, I'd like to see some hard character standards imposed for government prosecutors, some legal requirements and tests imposed on Bar…

> However, besides the point, is "misleading the public and the defendant" a professional standard for federal prosecutors? I think this strategy is par for the course because it generates a situation the prosecutors control, similar to the anchoring strategy used during business negotiations. You've just undermined the position of the defendant at no cost to yourself. As long as prosecutors careers do not depend on…

Right now there's an opening to deal with the fact that it has become par for the course, with the problem of careerism and point-scoring with people's freedom.

Re: undefined

#54

Post by jacquesm »

rhizome wrote: post #51
gojomo wrote: post #35

Earlier quoted context omitted.

In the weaselly shades of English used by lawyers and politicians, the two statements highlighted by Torvalds do not necessarily contradict one another. The older statement accurately describes the maximums the law allows, and was used when that was the emphasis. (At the time, the DoJ probably didn't know themselves what sort of sentence they'd ask for, so the only informative and unfalsifiable thing to put in a PR s…

It's not uncommon for Judges to reject prosecutor's sentencing recommendations in favor of harsher penalties. http://www.legalinfo.com/legal-news/judge-exceeds-prosecutor... http://www.cadillacnews.com/news_story/?story_id=1806284&#38... Michael Vick experienced this: http://sportsillustrated.cnn.com/2007/writers/michael_mccann... Judges don't have to respect plea agreements or prosecutor's promises to the defendant:…

> Both interpretations are valid, you're just favoring the legalistic over the layman's.

100% agreed, unfortunately this will likely be decided in the legal arena, not in a public forum. The damage done to Ortiz' career is to some extent determined in the public eye and in that sense maybe Linus' statements help. At least he spoke out, he might have weighed his words better by pointing out that Ortiz has possibly technically spoken the truth but on a moral level is completely bankrupt.

Re: undefined

#55

Post by jacquesm »

rhizome wrote: post #53
jacquesm wrote: post #46

Earlier quoted context omitted.

> However, besides the point, is "misleading the public and the defendant" a professional standard for federal prosecutors? I think this strategy is par for the course because it generates a situation the prosecutors control, similar to the anchoring strategy used during business negotiations. You've just undermined the position of the defendant at no cost to yourself. As long as prosecutors careers do not depend on…

Right now there's an opening to deal with the fact that it has become par for the course, with the problem of careerism and point-scoring with people's freedom.

Yes and that window of opportunity is already slowly closing, the real pressure points are that technicalities and an overly literal interpretation of the law should not trump morality, that selective prosecution is rife with abuse and another important area is that justice should be about actual justice rather than career advancement as well as the negotiation tactics involved in plea bargaining.

Re: undefined

#56

Post by stef25 »

downandout wrote: post #45
gojomo wrote: post #35

Earlier quoted context omitted.

In the weaselly shades of English used by lawyers and politicians, the two statements highlighted by Torvalds do not necessarily contradict one another. The older statement accurately describes the maximums the law allows, and was used when that was the emphasis. (At the time, the DoJ probably didn't know themselves what sort of sentence they'd ask for, so the only informative and unfalsifiable thing to put in a PR s…

I expect that any criminal defendant, including Aaron, would read her initial statement as "they're going to put me in prison for 35 years". Even as plea negotiations went forward, the implication was "plead this out or you will get 35 years". She made statements that only a lawyer could love - rife with plausible deniability for any responsibility they have in this mess. However, I think any reasonable person would…

It was not at all realistic to think a 35 year sentence would have been handed down for downloading scientific papers, even in America.

He was an extremely talented rich white kid, associated with a top university who would have had dozens of high profiles vouching for him in court.

I guess his lawyer did a terrible job of telling him not to worry.

Re: undefined

#57

Post by rhizome »

jacquesm wrote: post #7

Until Aarons' lawyer speaks up with evidence to the contrary Carmen Ortiz statement stands unchallenged. Much as I would like her to carry (or at least acknowledge) some actual responsibility for what she has helped causing there is a lot of room for interpretation here and saying 'she lied' in a legal sense is premature and may end up to be simply untrue. Linus is a very clever guy but he's dead wrong about this. I'…

We aren't lawyers, we can call her a liar if she appears to be one, especially if "there's a lot of room for interpretation." It's a huge joke that we're debating whether "the lawyer says they're not lying" is a good argument. What's problematic for her is that "the ecosystem she's operating in" aren't the only forces at work. Maybe she thought the age-old mechanism of press releases and who-gives-a-shit-what-lawyers-say would work the same as it always has, but that doesn't mean it has to be that way. Lawyers can't force us to operate in their ecosystem, and I have a feeling that they're exceedingly poor at existing in any other ecosystem, as best exemplified by the words of her husband, former IBM Websphere QA Stud Tom Dolan (i.e. one of us).

An additional complication is that her bosses simply might not care what she said and will keep her on the job with no changes, regardless. Deaf ears are still an option.

Re: undefined

#58

Post by jacquesm »

stef25 wrote: post #56
downandout wrote: post #45

Earlier quoted context omitted.

I expect that any criminal defendant, including Aaron, would read her initial statement as "they're going to put me in prison for 35 years". Even as plea negotiations went forward, the implication was "plead this out or you will get 35 years". She made statements that only a lawyer could love - rife with plausible deniability for any responsibility they have in this mess. However, I think any reasonable person would…

It was not at all realistic to think a 35 year sentence would have been handed down for downloading scientific papers, even in America. He was an extremely talented rich white kid, associated with a top university who would have had dozens of high profiles vouching for him in court. I guess his lawyer did a terrible job of telling him not to worry.

You really should read up a bit on this. His three lawyers all failed to reach a conclusion to the case that did not include jail time, possibly greatly increased during the actual sentencing (true, the latter was a small chance but a chance anyway).

source: http://www.bostonglobe.com/metro/2013/01/15/humanity-deficit...

Re: undefined

#59

Post by logn »

ck2 wrote: post #52

I don't understand why people don't get the LAW should have been on trial, not Aaron's actions. Aaron was an activist. He purpose broke what he considered unfair laws and tried to set free information he thought should be free (or was technically free in the first place). I think he committed suicide because he thought he was going to be Bradley Manning-inged. I wish he would have waited a little longer and had a lit…

> "I think he committed suicide because he thought he was going to be Bradley Manning-inged. I wish he would have waited a little longer and had a little more hope but it's easy to be cool and logical from a comfy chair, meanwhile his mind was facing darkness."

Both agreeing and disagreeing here...

I don't get how everyone assumes that Aaron was making a logical decision when he killed himself. It's very possible he was depressed and wasn't thinking clearly at all. It's also very possible that this trial made him depressed. But to assume that he was thinking reasonably about the circumstances and decided it was best not to live is a huge assumption. Depression completely warps reality.

Also, I'd like to add that given this, I think we're all being a bit unfair to the prosecutor. Sure, she overstepped the bounds of reason. But it's very possible she triggered an underlying mental illness in Aaron. Yes, she is partly to blame. But so is everyone else. MIT didn't step up. But also his loved ones near him didn't do enough to help. It's quite simply a tragedy. Painting Ortiz as a murderer is as wrong a painting Swartz as a felon deserving of a 35 year prison sentence.

Re: undefined

#60

Post by zokier »

downandout wrote: post #32
btilly wrote: post #3

Linus is dead wrong on this. We have independent confirmation of everything that Ortiz said from the Boston Globe's interview with Aaron's defense attorney. The maximum statutory penalty for the original 4 indictments was 35 years. The prosecutor was planning to seek 6-7 years. There were two plea bargains offered, one was 4 months and no disputing the period, the other was 6 months but the defense attorney would be…

Linus isn't wrong. She made two directly conflicting statements in press releases, which is what he pointed out. The first, which she made at the outset of the case, was that he was facing 35 years if convicted at trial. They make statements like this in order to foster plea discussions, which resulted in the 4-6 month offer she mentioned in the second statement. While this would be considered extortion in any other…

> The first, which she made at the outset of the case, was that he was facing 35 years if convicted at trial.

No, that was not what she said. She said that he could be facing up to 35 years. In other words 35 years would be the maximum penalty. There is no implication that she was seeking the maximum penalty at any time.

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