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Re: undefined

#181

Post by danielweber »

watt wrote: post #80
javert wrote: post #70

Earlier quoted context omitted.

As a regular intelligent American person (i.e., not a lawyer), you are correct, and Linus is wrong. It is just obvious that the first thing she put out was purely legal posturing. They do it all the time. It means nothing.

It made Aaron kill himself. Must mean something.

Aaron knew it wasn't 35 years. Aaron's own lawyers have said it was 6-7 years.

Yes, I think 6-7 years is still too much, but you aren't helping anything by telling everyone something that isn't true, i.e., Aaron thought he would face 35 years in jail if he lost.

35 years is absolutely what Ortiz said -- to the public. Ortiz also wants to discourage other people.

Re: undefined

#182

Post by rada »

wissler wrote: post #165
rada wrote: post #161

Just a few months ago, Linus Torvalds urged "mentally diseased" people to kill themselves over printer security and now, he is a Crusader Against Bullies Who Make People Kill Themselves. Bacteria have more self-awareness than this. In Linus's own words, "here are the sources, so that people can compare them for themselves". https://plus.google.com/u/0/+LinusTorvalds/posts/1vyfmNCYpi5 https://plus.google.com/u/0/+Linu…

There's a huge difference between having the power of Ortiz -- in effect, a gun pointed at Aaron saying "come to jail peacefully or die resisting arrest, your choice" -- and Linus tossing off remarks he's obviously not going to implement. Really what Linus hates are stupid people so he spouts off about them from time to time. E.g. like those who can't see the difference between a harsh remark and actual bullying. If…

Oh please. There is fantasy land and then there is reality. Press releases are not guns. White-collar criminals do not die resisting arrest. And internet bullies like Torvalds cause way more suicides than prosecutors like Ortiz.

Re: undefined

#183

Post by roc »

btilly wrote: post #170
roc wrote: post #149

Earlier quoted context omitted.

She identified the maximum the same way a protection racket says "It'd be a shame if anything happened to this nice business you've got here". They never actually say they're going to make 'something' happen if you don't deal. But everyone knows that is exactly what they mean. It's no different for the prosecutors. Stating the maximums in a case that clearly does not compel the maximums is an intentional negotiating…

You were fine until the last sentence. And that implicitly indicates the prosecutors were gunning for Swartz. No. This was business as normal. This is what they do to EVERYONE. Whether THAT is OK is a different issue. But they really weren't singling him out for significantly worse treatment than they give to other people.

The point that they gun for everyone is no defense. (That everyone gets shaken down for protection money does not mitigate the immorality of that act in individual cases.)

Such a defense would not only be an admission that the original criticisms against the office were 100% correct, but that the 'problem' of their unethical and immoral behavior is, in fact, much deeper than just Swartz.

Which is, in fact, why Ortiz won't go anywhere near a claim that they treat everyone the way they treat Swartz, with similar disregard for the particulars of their case or any human sense of justice or proportionality.

Attempting that argument would concede that the Swartz case is but today's face on the larger issue of proescutors run amok. [1]

[1] A subject well covered in a blog post by Charles Pierce, that I previously linked to in a thread on this topic: http://www.esquire.com/blogs/politics/The_Case_Of_Aaron_Swar...

I'm well aware that they treat everyone this way. That's not a different issue. It is the issue.

Re: undefined

#184

Post by danielweber »

zaphar wrote: post #164
mpyne wrote: post #135

Earlier quoted context omitted.

> her office absolutely threw the book at a kid for downloading some PDFs. And repeatedly going around network blocks in order to obtain those PDFs...

That's a statement about intent. We do not know whether changing his mac address was in order to get around network blocks or for some other reason. The court would have tried to establish intent in the case but the case didn't get to court and we in the internet really don't have enough information do make a finding regarding intent ourselves.

We do not know whether changing his mac address was in order to get around network blocks

Yes we do, because we aren't stupid, and neither is Aaron.

I could accept, for the sake of argument, that the very first time he changed his MAC it was because he was innocently trying to diagnose a network issue.

By the time JSTOR has cut off all of MIT and he is plugging into a physical port to work around the restrictions on the wireless network, it's no longer acceptable to honest people that he just thinks there was something wrong with the MIT network.

MIT didn't want him on their network. He thought his cause was worth bypassing their controls.

Re: undefined

#185

Post by danielweber »

__alexs wrote: post #6
anigbrowl wrote: post #2

Well, he's wrong about this. Quoting the maximum statutory penalty is the standard in news releases, but tells you exactly zero about the negotiations in attorney conferences. US attorneys don't write the press releases, those are done by the most junior lawyers and quote the statutory maximum because it's factual without giving anything away about the government's courtroom strategy.

What if there was no mention of the penalty they were seeking in negotiations or it was left highly ambiguous? In that situation I could see a public press release announcing that you might face 35 years in prison as quite threatening.

Aaron's lawyers have said he was facing 7 years, not 35, if he went to trial and lost. Aaron knew this.

You can still find this entirely too long.

Re: undefined

#186

Post by sixbrx »

btilly wrote: post #170
roc wrote: post #149

Earlier quoted context omitted.

She identified the maximum the same way a protection racket says "It'd be a shame if anything happened to this nice business you've got here". They never actually say they're going to make 'something' happen if you don't deal. But everyone knows that is exactly what they mean. It's no different for the prosecutors. Stating the maximums in a case that clearly does not compel the maximums is an intentional negotiating…

You were fine until the last sentence. And that implicitly indicates the prosecutors were gunning for Swartz. No. This was business as normal. This is what they do to EVERYONE. Whether THAT is OK is a different issue. But they really weren't singling him out for significantly worse treatment than they give to other people.

So if they are shamelessly using any means available to try to convict everyone they prosecute, say to increase their rate of successful prosecutions and thus professional status, then by your definition then they aren't gunning for anyone?

I'd say in that case they would be gunning for everyone they prosecute. As opposed to the people they aren't prosecuting. An alien invader could be gunning for everyone on Earth. "Gunning for" doesn't have some distribution defined definition when enacted by a single individual - an individual can "gun for" everyone in context and some do.

Re: undefined

#187

Post by pyre »

detst wrote: post #159
tveita wrote: post #147

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". Absolutely not. I've been shocked to see how many geeks - including Linus, do not seem to understand the concept of maximum penalties. This is not an obscure lawyer technicality, this something you see in the papers every day. Journalists like to quote the "up to" numbers beca…

> I've been shocked to see how many geeks - including Linus, do not seem to understand the concept of maximum penalties. And I'm shocked to see how many people misinterpret those geeks. We don't believe he was absolutely going to end up in jail for 35 years; we believe it was hung over his head to extort a plea deal, while remaining a real possibility. > Journalists like to quote the "up to" numbers because they soun…

  | we believe it was hung over his head to extort a
  | plea deal, while remaining a real possibility
All you have to go by are public statements/press releases though. All of the private communications between Aaron (and his lawyers) and the prosecution are relevant here. It sounds like, while quoting 'up to' numbers in public, they were telling his defence that they planned to seek 6-7 years at trial (without a plea bargain). Obviously this wasn't something they were bound to (they could change their mind and seek maximum penalties at trial).

That said, if they were telling him behind closed doors that they would seek 6-7 years, I don't think we can claim that they were holding the possible 35 year sentence over his head. As others have said in other discussions, if a judge had ignored the prosecutor and thrown the maximum sentence at him, it would almost certainly be overturned on appeal (max. penalties for a first time offender are almost always overturned on appeal).

I think one of the biggest factors was that he was facing a possible $1+ million trial with no funds to pay for it. Also, 6-7 years in prison isn't anything to laugh at.

Re: undefined

#188

Post by defen »

mpyne wrote: post #128
jacquesm wrote: post #58

Earlier quoted context omitted.

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?

To what extent is it true to say "SWARTZ faces up to 35 years in prison" if there is a 0% chance he'll face that penalty? Wouldn't it be more accurate to say "his alleged crimes are punishable by up to 35 years in prison"? Or was there actually a small but non-zero chance he'd face 35 years?

By analogy, imagine a 3-strikes state where the 3rd strike results in life imprisonment. If someone is accused of committing their first felony, is it accurate to say "he faces up to life in prison" when that is not possible given his lack of criminal history?

Re: undefined

#189

Post by VikingCoder »

tveita wrote: post #147
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…

> 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". Absolutely not. I've been shocked to see how many geeks - including Linus, do not seem to understand the concept of maximum penalties. This is not an obscure lawyer technicality, this something you see in the papers every day. Journalists like to quote the "up to" numbers beca…

Here's a terrible analogy, to explain to you why I think your reasoning is wrong:

When you play Russian Roulette, death for you is the MAXIMUM PENALTY.

So, your two options are to play Russian Roulette, or I'll bargain with you - you can give me $10,000.

"At no time did I ever seek - or even tell you that I intended to seek - death for you."

But your two choices were, to play Russian Roulette, or give me $10,000. I might even have accepted a counter-offer from you, say, $8,000.

Keep in mind, if you play Russian Roulette, it's up to the gun what really happens. You might just hear a loud CLICK. But limiting the maximum penalty to death, rather than for instance killing everyone you know and love, is there to prevent abuses.

I know it's a terrible analogy. I just want to point out that the statement, "At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law," that's a way of saying, "He had two choices, one, risk the maximum penalties, or two, bargain with us." That's a strong-arm bargaining tactic. Most people accept the plea bargain, but that doesn't mean the threat of maximum penalties wasn't made.

EDIT: As a prosecutor, her job is to put the gun on the table, load it with as many bullets as she can, and then get you to accept a plea. If Aaron had not accepted the plea, she would have done everything in her power to convict him of everything she could. Back to my analogy, there was more than one bullet in the gun - maybe 2, 3, 4, 5, or 6. A reasonable person would probably accept the plea - and that's up for debate, too. But for her to assert that "At no time did this office ever seek... maximum penalties under the law" is really deceptive / a lie.

Re: undefined

#190

Post by majormajor »

cognivore wrote: post #141
okamiueru wrote: post #69

Earlier quoted context omitted.

What do you think this will possibly achieve? How many times has the internet lynch mob been misguided, for you to realize that this is a shitty way to approach matters? Not only that, but if you want to reiterate Linus' statement (as you seem to be suggesting, to Ortiz herself), at least realize that he made a fool of himself here. The two statements don't contradict themselves, and going from that to a "lie" is cou…

>> What do you think this will possibly achieve? I'll put myself in Ortiz's shoes. I've just pursued a federal case in which the invested parties no longer are interested in continuing. I do it with a fervor that is unwarranted compared to the severity violation. The accused kills himself out of what appears to be fear. Then a shit-storm happens. My information is everywhere. I'm having to change everything online be…

I'll strongly disagree. Mob rule should not be encouraged.
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