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Re: undefined

#121

Post by Millennium »

Sorry, but I can't go with Linus on this one. The purpose of that press release was to educate the public about the case, including the crime of which Swartz was accused, and stating the maximum penalty for the crime is part of that. It does not imply that the maximum penalty is being sought.

Swartz was a talented man, no doubt about it, but he became a zealot, and zealots do stupid things. When he realized that he wasn't going to escape justice because ZOMGAARONSWARTZ -which is basically what JSTOR tried to do, and the Justice Department wasn't buying that because it would have been, in a word, unjust- he did something rash, and that brings us to today. He was not a saint, he was not a "light of the world, put out too soon", and he certainly shouldn't be elevated to martyr status.

Re: undefined

#122

Post by sociotech »

Google:

site:http://www.justice.gov "if convicted, * faces"

57,700 results.

There are many things to criticize about the universe, but the standard form language on US Attorneys' press releases is probably not the biggest thing we should be worried about. Linus, as he often does, is speaking too confidently and too hastily.

And the press releases always state the statutory maximum, which as I and many others have explained, Aaron was never actually threatened with. His lawyers knew that. He had to know it. Lessig either knew it or should have known. The only reason we're talking about "35 years" is because of Lessig's irresponsible PR.

I'm trying to think of a hacking analogy. Imagine if you write a routine for loop with an int increment and someone, trying to understand the code, asks "wait, how many times can this run?" And you respond with INT_MAX. In most situations, that would be a misleading, borderline autistic response, with no relationship to the real world in the normal case.

Re: undefined

#123

Post by atirip »

betterunix wrote: post #119
pacala wrote: post #95

Earlier quoted context omitted.

Given how the rest of the society works, I'd be not surprised that "incompetent" really means "poorly connected" and that the whole system is just a $1.5 million racket to get a "well connected" lawyer to grease your case.

No, in this case, incompetent means "incompetent." Public defenders are often inexperienced and overworked, and are notorious for advising their clients to accept plea bargains rather than go to trial.

Then you are really are fucked indeed. As an example here (Estonia) state pointed lawyers are choosen from reputable offices only, and they are forced to do that.

Re: undefined

#124

Post by Niten »

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'…

Well if you read through the post, especially Linus's follow-up comments, you'll find that his very point is this distinction between the truth of these technically correct, weasel-worded statements and the bigger picture.

Sentencing is ultimately up to the judge, and the truth is that Ortiz used the threat of "up to 35 years" to try to force a plea bargain. When Swartz refused a bargain which would have branded him a felon, as is his right, Ortiz's office drummed up additional charges.

Ortiz is likely technically correct when she says she never explicitly sought the maximum penalty for these extra charges she piled on. She is also deliberately evading the point by saying so, which is that her office absolutely threw the book at a kid for downloading some PDFs.

Imagine your kid comes home reeking of smoke. You ask him, anger in your voice, whether he was smoking with his buddies in the woods out back again. Kid cooly replies, "I wasn't smoking cigarettes."

Then you find a joint in his pocket. Kid was technically correct when he said he wasn't smoking cigarettes, but he was also "lying" in the sense that he sought to obfuscate and create a diversion from his wrongdoing by making such a statement.

Re: undefined

#125

Post by cdash »

Xylakant wrote: post #98
pacala wrote: post #94

Earlier quoted context omitted.

There is one detail: she never added, in public, "I'm seeking X years". She always kept talking about the maximum penalty. The ball is in her court and Linus is right to call her backpedaling a lie.

I would not expect a prosecutor to talk about the sentence she seeks before the actual court hearing. And we don't know at all what was discussed in the plea bargainings. So no - no lie. Not here. Coming from a different legal system (germany) I find the way prosecution and plea bargaining works in the states scary, but calling the prosecutor a liar when she works in the common framework is not helpful. It just under…

The common framework is to extort people into taking a plea bargain by threatening them with huge prison sentences by throwing every single felony they can think of at them. When you threaten someone you have to be willing to back up your threat if they call you on it or it wont work in the future, so I am not really seeing how this makes her not a liar.

Re: undefined

#126

Post by MrScruff »

3amOpsGuy wrote: post #29
djmdjm wrote: post #14

[someone who has no inside or even detailed knowledge of the case] says Carmen Ortiz is lying. How does this advance the debate?

It's an indirect advancement. It's beneficial by expanding the circle of people engaged in the issue. To some extent, it doesn't really matter what Linus proclaimed but he's helped here by tipping others over the edge of contributing to the discussion. By that i mean, how many people who have great respect for Linus, previously sat quiet on the issue, absorbing the information, but now feel engaged enough to voice an…

Linus probably has a similar amount of domain specific knowledge about being a prosecutor as Ortiz does about kernel hacking.

Re: undefined

#127

Post by gnu8 »

lifeisstillgood wrote: post #44

Removing / blaming one person without reforming the system is called a "purge" as in Stalinist Purge Please fix the system not the blame Suggestion: are plea bargains public record? If so can we parse and publicise them? Would it be interesting to know the ratio of years charged vs years pleaded - especially by race and offence and state? Edit: no not trying to compare this in degree with marching thousands to death…

Removing / blaming Aaron Swartz without reforming the corrupt system of copyright laws that caused his offense in the first place was exactly what Stalinist Carmen Oritz wanted.

It is a fact that Carmen Oritz is a snake and is not fit to serve in the United States government.

Re: undefined

#128

Post by mpyne »

jacquesm wrote: post #58
stef25 wrote: post #56

Earlier quoted context omitted.

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...

You should read up on this too then. His lawyers did manage to extract a plea deal with no jail time, but then MIT wouldn't sign off on it.

Let's be specific, are you trying to claim that Aaron stood a small chance at actually be sentenced to 35 years, or are you just talking about jail time at all?

Re: undefined

#129

Post by mpyne »

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:…

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

This is only up to a certain point though. Plea bargains can be made conditional on the sentence not exceeding a certain limit.

Re: undefined

#130

Post by jacquesm »

baak wrote: post #110
jacquesm wrote: post #31

Earlier quoted context omitted.

> She/her office understood, I'm sure, that he thought he was doing things for the greater good. I have not seen any proof or acknowledgement of that. > That doesn't mean that he is legally allowed to nor that she is barred from prosecuting him because his intentions were so pure. This is true, and nobody has said that she should not have prosecuted. The things that are being said are: - this prosecution was subject…

Which other more serious cases did Ortiz choose not to pursue and why? Perhaps there wasn't good enough evidence to pursue them? I really don't think she's an idiot... I know we're honor-bound not to like her, but we're calling her an idiot because we have no proof to the contrary? What...?

> Which other more serious cases did Ortiz choose not to pursue and why?

There were a bunch of pharmaceutical cases where Ortiz used her discretion in favor of the defendants.

> Perhaps there wasn't good enough evidence to pursue them?

Perhaps.

> I really don't think she's an idiot... I know we're honor-bound not to like her, but we're calling her an idiot because we have no proof to the contrary? What...?

Notice the 'If' at the beginning of that sentence please.

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