back to article Swartz prosecutor: We only pushed for 'six months' in the cooler

US attorney Carmen Ortiz, who led the fraud case against Aaron Swartz until his suicide last week, has defended her prosecution of the internet prodigy. Swartz, 26, took his life on Friday at his home in New York in the midst of a lengthy court battle that could have put him behind bars for decades. He was charged with computer …

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It's hard to find words... R.I.P Arron

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Meh

They can say what they want and try to defend themselves over the case.

You take your victim as you find them, Swartz became the victim in this, but these prosecutors have skin thicker than battleship armour.

Sadly it is unlikely they will be tormented by this.

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Anonymous Coward

Obama's Justice Department is Cruel and Vindictive.

Here in Boston, the news is more disturbing. This was originally a local matter for MIT security and Boston police. It was a simple illegal entry violation for breaking and entering into an MIT storage closet where he had his laptop stashed,.

Swartz would have gotten off with a slap on the wrist, maybe a fine. But then President Obama stepped in and directed his powerful Secret Service to assume control of investigation, and it went from a B&E to a major crime investigation with four indictments Six months later, Obama's Justice Department tripled the intimidation with a 13-count indictment. The Boston Globe reported that the DOJ was pushing for the full 35-year sentence.

These journals were paid for by Federal grants, and BY LAW must be freely available. But making the data too easy to access also makes it extremely easy for others seeking grants to steal/borrow the research of others and win next year's grant.

The Obama Administration claims Swartz wanted to publish the journals online for free, but made no claim that he wanted to profit off of them. This would have put academic research, much of it funded by federal grants, in the hands of the people who actually paid for it.

This whole thing paints Obama's justice department as cruel and vindictive. Swartz was suffocated because he threatened the cushy federal grant system.

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Prosecutor not to blame

It seems quite a few people here don't understand how this actually works. Over 90% of cases in US are decided through a plea bargain. This means that the prosecutor and the defendant/lawyer sit down and negotiate what the sentence would be if the defendant were to plead guilty. It's not clear from her statement, but it's likely that 6 months term was the carrot for pleading guilty, not the stick that she threatened with should the case go to court. I think she's being disingenious there. The stick may have 30 years maximum sentence, however, there's no evidence to suggest that she would likely have asked for that in the trial. What would happen is prosecutor would ask for sentence on a high end that still appears reasonable to the judge, counting on the judge reducing it somewhat. How much a prosecutor asks for officially wouldn't even enter the picture until sentencing hearing and is predicated upon how many counts the defendant is convicted on.

Now it may seem that this is an example of overzealous prosecution, but threatening a defendant with a high sentence is an inherent feature of a plea bargain system. There are advantages and disadvantages to it, however there is little blame that should be shouldered by the prosecutor in this case because the threat of high sentences is a systematic disadvantage of the system. Now as to the law in question, it certainly should be changed to be more specific as it is too wide a tool and a prosecutor can use it in any computer crime to force the defendant to take the plea bargain.

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Anonymous Coward

Re: Prosecutor not to blame

"...how this actually works" *is* the problem. US-Style plea bargaining (as implemented) is an sometimes-evil system that would force even the innocent to plead guilty.

Or, in this case, force the accused of what should be a misdemeanor to choose between 1) being a felon with a 6-month sentence, 2) being a felon with perhaps a decades-long sentence and bankrupted, or 3) suicide. Option 4 would have been a violent rampage.

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Re: Prosecutor not to blame

The "justice" for which America is famed throughout the world.

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Meh

Re: Obama's Justice Department is Cruel and Vindictive.

I didn't know that when Obama came to office, he fired all prosecutors or in fact the whole justice department. I'm pretty sure that it's business as usual, whether it was Bush or Obama... No need for you to involve politics.

Swartz should have involved politics, and demanded the freedom of information that way...

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WTF?

Re: Obama's Justice Department is Cruel and Vindictive.

http://www.alternet.org/activism/prosecution-aaron-swartz-paints-obamas-justice-department-needlessly-cruel-and-capricious

Last year, pharmacist Tarek Mehanna was sentenced to more than 17 years in prison after Ortiz successfully won his conviction for conspiracy to support terrorism. His crime? He translated Arabic works that could be considered jihadist into English and published them online.

Elliott Peters, Swartz’s attorney, said the DOJ was being unmovable and did NOT want to negotiate a plea for Swartz and wanted to make an example of him with a long prison sentence.

Swartz embarrassed the Obama Administration. He was a leader in political movements to defeat a series of new laws, including the deceptively-named Stop Online Piracy Act, or SOPA, that would have made it easy for the DOJ to prosecute people like Swartz with harsher punishments, which would have brought government regulation and censorship the Internet.

"In all of its treatment of unsanctioned leakers, then, the administration of President Barack Obama has insisted on legally labeling those who liberate information as the worst kind of felons"

My God, somebody please explain to me why Obama is being given a free pass to use his DOJ like this. Can't you all see how out of hand this is? I dare you to downvote me if you approve of Obama's hypocrisy.

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Re: Prosecutor not to blame

"1) being a felon with a 6-month sentence, 2) being a felon with perhaps a decades-long sentence and bankrupted, or 3) suicide. Option 4 would have been a violent rampage."

Option 4: Got to the minimum security prison and launch an appeal. Become a prisoner of conscience and use your imprisonment to your advantage in a campaign to change the law.

He committed a crime which was obviously going to get him in trouble and which lead him into the path of a prosecutor who was obviously out for blood. None of that is a reason for suicide, he was being intimidated, not tortured.

If somebody decides to dangle from a length of rope, that's their own doing, nobody else's.

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@AC 16:49

I beg to differ. Given how expensive jury trials are, it's inevitable that most cases need to be solved pre-trial. Plea-bargaining, despite its disadvantages, is the most fair way to do so and still allow for jury trials. Now what I think should be changed are the unreasonbly high sentences for crimes that don't involve violance. Particularly those that deal with computers and drugs.

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Anonymous Coward

Re: Boston, thanks for the summary

I'm part of the Boston/Cambridge academic community too, and we were all puzzled and more than a little concerned when the Federal government got involved. Most of us voted for Obama, but we are very disturbed by the rapid speed at which the current administration has moved to criminalise intellectual property infringement without considering the wider ramifications of the laws and policies.

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Re: @AC 16:49

How can it be fair when innocent people are effectively forced into pleading guilty as the between the cost of defending yourself (forget the public defenders) and the sentences being so ridiculous.

Also the puritan streak that is so common in the US has the viewpoint that if you appear in court you MUST be guilty (unless you are rich or a sports star)

Also where exactly did the damage to a computer system accusation, it's quite hard to damage a system by downloading documents individually

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@Fibbles - Re: Prosecutor not to blame

What crime ? We was entitled to download those articles but he did it too fast instead of downloading one at the time. MIT has a liberal access policy allowing anyone free access to these documents without any authentication all you need is to walk on their campus and plug your laptop into their network. Is this a crime which deserves 30 years in prison ? This is exactly what prosecution did, they ignored all this evidence and went for the harshest punishments.

Also are you aware option 4 involves millions of dollars that might have not been readily available for the poor young man ? Let's not get silly, shall we ?

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Re: Prosecutor not to blame

If he was a Banker he could have given them 10% of his ill gotten gain and not even admit guilt. But he pissed off the wrong people and squished.

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Re: @Fibbles - Prosecutor not to blame

"What crime ?"

Breaking into a secured area of the campus? Deliberately bypassing repeated attempts to keep him off the network?

" Is this a crime which deserves 30 years in prison ?"

I didn't say it was.

"Also are you aware option 4 involves millions of dollars that might have not been readily available for the poor young man ?"

It takes millions of dollars to turn up to court and represent yourself? In what universe?

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Mushroom

Some words

US Attorney Ortiz "makes clear" that she decides what is reasonable and appropriate for her office and staff to do. Not you. So take your public outcry about injustice and stuff it. "I've looked into it and found that, after further review, I did the right thing."

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Re: Boston, thanks for the summary

You voted for Obama, you GOT Obama. You also got Chicago justice and Eric Holder. You got what you wanted, now choke on it.

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Re: @AC 16:49

The unfair aspect is the huge sentences involved for trivial crimes because of unecessarily broad law. Plea bargaining as such is not really the problem here. As to innocent people who plead guilty, I'm more concerned about innocent people who get convicted. A jury trial actually reduces conviction rates and increases the standard for prosecutors to reach. If someone wants to exercise their personal responsibility and plead guilty to a crime they didn't commit, that's on them. Most of such cases aren't black and white anyway.

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Boffin

@solidsoup ... Re: Prosecutor not to blame

While I agree with what you wrote,

I wonder what sort of mandatory sentencing guidelines would have been forced had he gone and lost at trial.

I mean heck, you could get a longer sentence for growing pot than someone who commits murder thanks to the Mandatory sentencing guidelines.

The other issue, like it or not, its now what Aaron intended to do with the material but how he got the material which landed him in hot water.

If the Anon poster is correct and the Boston Globe article showed that the WH stepped in to make Obama look tough on crime... well I guess its too late to not vote for him...

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@AC ... Re: Obama's Justice Department is Cruel and Vindictive.

Not sure why you were down voted.

I believe that you succinctly mentioned the facts of the case.

Aaron did in fact break in to an MIT networking closet and circumvented the APIs for interfacing the system.

The WTF is for those who down voted the Anon.

C'mon guys Seriously?

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Re: Obama's Justice Department is Cruel and Vindictive.

Because Obama is a Democrat, so he gets a free pass! Democrats good, Republicans evil, don't you know the story line?

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Re: @AC 16:49

Plea-bargaining is not a fair way to do anything - sentencing is the job of the Judge, not of the (alledged) criminal. In more enlightened countries, the defendant has the same opportunity to plead guilty, and save the court's time, which is rewarded by the Judge handing down a lighter sentance.

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Re: Boston, thanks for the summary

Mitt Romney. The answer to all our problems. <sarc>

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Re: @AC 16:49

@ First Dave

A common misunderstanding of what plea-bargaining involves here. Once the defendant and the prosecutor agree, prosecutor has to recommend the agreed-upon sentence to the judge. While in most cases, the judge will just use that sentence, it's completely up to them. Judges sometimes give a lower sentence if they consider the agreed upon one to be unfair or refuse to allow the plea-bargain entirely. They can also issue a greater sentence than the prosecution recommends. That's what happened in Polanski case - the judge was going to issue a much greater sentence than the prosecutor recommended.

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Anonymous Coward

Re: Obama's Justice Department is Cruel and Vindictive.

I suppose Obama is behind the sun disappearing each night too.

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Anonymous Coward

Re: Prosecutor not to blame

"the threat of high sentences is a systematic disadvantage of the system"

And the best way to change the system is to give the prosecutor a Big taste of her own medicine.

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Re: Prosecutor not to blame

The same prosecutor chose very nice carrots for health care execs:

http://hcrenewal.blogspot.com.br/2013/01/the-tragic-case-of-aaron-swartz-unequal.html

So Ortiz definitely should be shouldering the blame. Typical US "justice": preferential treatment for the wealthy and powerful.

Prison sentences for non-violent crimes are absurd.

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Anonymous Coward

Re: @AC 16:49

Healthcare and habeas corpus are expensive luxuries, convicts are executed and creation is science. Which millenium is this?

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Re: @Fibbles - Prosecutor not to blame

The basic criminal offense appears to be trespass in a network closet reported elsewhere to have been used also as a sleeping area by a homeless person. That, and violation of JStor's terms of service by automating search and download. I'm not a lawyer, but given that JStor declined to pursue the matter (credit to them on that) I wonder if the normal result, if processed locally, wouldn't have been a misdemeanor no-contest plea with a fine and probation.

One real problem with this is treating TOS violations, which ought to be a civil matter anyhow, as a high level federal felony. That is not allowable in all federal court districts. As a US taxpayer I object to the investigators prosecutors spending time on such relatively trivial matters as this particular case. One might infer reasonably that the federal police agencies and U. S. attorney offices need downsizing.

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Mushroom

Re: Obama's Justice Department is Cruel and Vindictive.

@AC 16:30: That the Obama Administration is in the pocket of Big Media should surprise nobody who's been paying attention for at least a couple of years. A hypothetical Romney administration might have been less so, but only because it would have been so busy scratching the backs of his supporters. (For instance, I have no doubt at all that if Romney were in the White House, the FAA would never have ordered the grounding of all Boeing 787s.)

So let's not pretend there is a political solution to this mess, at least not one that involves any party or structure currently existing in the USA. Politicians just don't give a rat's arse about the occasional martyr, right up until the point where he manages to achieve global headlines.

I guess maybe Swartz knew that, and he saw there was one, and only one, way in which he could make those sorts of headlines. Maybe he was looking to immortalise himself in the same way as Mohamed Bouazizi. If so, I wish he'd been right, but I very much doubt it. Martyrs don't cut that much ice in the west - we're too busy arguing about whose brand of scumsucking demagogues is better or worse than the alternative.

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Re: Boston, thanks for the summary

Indeed we did, and as much, and as often, as I am dissatisfied with what we have, I still feel comfortable in that I do not doubt it is still better than what we could have had.

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Re: @AC 16:49@ solidsoup

"I beg to differ. Given how expensive jury trials are, it's inevitable that most cases need to be solved pre-trial. Plea-bargaining, despite its disadvantages, is the most fair way to do so and still allow for jury trials." Hmmmm - I suppose that depends whether you (assuming you are American) like being in a country with a ridiculous percentage of its population in prison. From my viewpoint, the system is not fair, and certainly not efficient, but then I have always been on the side of "better that ten guilty people walk free than one innocent person be imprisoned".*

* Yes, I know the original use of this said "hanged", but it was made at the time that hanging was the preferred punishment for many crimes. The point is the same - the State should not get away with using its powers to remove liberty from anyone (citizen or not) without due process and the presumption of innocence.

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Re: Boston, thanks for the summary

"You voted for Obama, you GOT Obama." I'm confused what Obama has to do with this. This seems to be entirely the local computer-ignorant district attorney. Can anyone give a nutshell explanation, please (preferably one that doesn't descend into conspiracy theory)?

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Re: Boston, thanks for the summary - self-reply

Apologies - I wrote "district attorney" by mistake: it should be "US attorney" - apparently they are different creatures entirely.

I'm a bit better educated re: the political angle now, having done some reading, but I don't see where the Obama-specific angle comes from. This seems to be a much larger issue in which the entire US socio-political system (not uniquely by far) seems to be working to keep tightening controls on information. This would not be any different under any recent presidential candidate, Democrat or Republican. Until there are serious candidates from outside the bi-partisan clique standing on a platform of free-er information and protection of whistle-blowers (not likely this side of the Second American Civil War), it ain't gonna change.

By all means go after Ortiz and Heymann, and maybe try to get some support for the idea that lawyers should not be allowed to become politicians (their actions seem to be motivated by their own political ambitions), but you can't sensibly target the president specifically.

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@Fibbles: You need to stop this now.

You're interrupting their 2 minute Hate.

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Re: Obama's Justice Department is Cruel and Vindictive.

BillG, it is not Obama personally who demands a vindictive, cruel judicial system. The political culture here works that way. Ortiz is a politician herself; she was floating her name to run for governor. It is very common for politicians here in Massachusetts to rise from prosecutor. A high-visibility prosecution, whether or not justified, puts a prosecutor's name on the front page, and the local media love it. Ortiz was trying to put a big notch on her belt.

While the state has a huge computer industry and is full of geeks who know the difference, a majority of voters probably don't, and if the Boston Globe, the Herald, and the biggest three Boston TV stations all dutifully take her at her word, then this would have been a Major Computer Criminal that she put away, and thus she would have become eligible for higher office. It's a well-trod path. Luther Scott Harshbarger helped persecute the Amirault family in the notorious Fells Acres case three decades ago. They were convicted of totally absurd charges of child abuse -- they owned a day care center which was still controversial -- mommies should stay home with kids and not work, said the right wing. He never apologized and to this day insists that that they were, essentially, witches, but got elected Attorney General. Almost made governor.

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Re: Prosecutor not to blame

"he was being intimidated"

Intimidation IS torture!

It's not because it's psychological torture that it isn't torture at all.

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Re: Boston, thanks for the summary

"You voted for Obama, you GOT Obama. You also got Chicago justice and Eric Holder. You got what you wanted, now choke on it."

Who says what's happened here is typical Obama (democratic) signature? The US Congress is still run by BOTH the democrats AND the republicans. And these control the DOJ!

The problem is that in many countries many votes don't mean anything. Even in the country where I'm in. The party that got the most votes isn't even represented in the government (only in the opposition). So much for elections and democracy. It's all a big fat joke! Everywhere!

And normal people why try try to make ends meet are the victims of all this shit! Fuck them all!

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Anonymous Coward

Re: Obama's Justice Department is Cruel and Vindictive.

"Martyrs don't cut that much ice in the west "

however this WILL irrevocably cause damage to the Obama administration in the long run...

"we're too busy arguing about whose brand of scumsucking demagogues is better or worse than the alternative"

You mean we're to bussy reading El Reg's "10 best Crapdroid apps of 2012". I'm afraid you're right about about that. :-(

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Re: Boston, thanks for the summary - self-reply

@ Intractable Potsherd:

The DOJ is administered by the Congress which is (currently) lead by "the Obama administration". So Obama's "entourage" is indirectly responsible for this mess. He ought to keep some of his civil servants on a shorter leash pronto before these "prosecutions" escalate into real slaughtering witch-hunts.

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Anonymous Coward

Re: Boston, thanks for the summary

"I'm confused what Obama has to do with this. This seems to be entirely the local computer-ignorant district attorney."

Um, no. There is no such thing as a local Federal case.

The Department of Justice is part of the Executive Branch and is under the direct authority of the President of the United States. The President sets prosecutorial guidelines. He can initiate and terminate any prosecution at his sole discretion.

Once the Boston DOJ got involved it was no longer a local case, it became a FEDERAL case, under the authority of, and responsible to, the President. The buck stops with him. Understand?

The President, through his Attorney General Eric Holder, decides what is and isn't a major case. The Swartz case, like Manning, was/is well publicized and Obama has to know about it. If Obama wouldn't pardon Manning, he certainly wouldn't pardon Swartz.

An online petition on whitehouse.gov to remove Carmen Ortiz quickly exceeded the 25,000 signatures required for a White House response. BUT, instead of Obama answering the petition as promised, President Obama personally raised the threshold for an official petition response from 25,000 to 100,000 signatures, and the 100,000 must now be reached within 30 days!

I'm a Kennedy Democrat. Obama isn't any kind of liberal I'm familiar with.

The petition is now up to 46,000 signatures:

https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz-office-overreach-case-aaron-swartz/RQNrG1Ck

I urge everyone to sign. Why wouldn't you?

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I wonder if the documentation...

... has been amended to match the new official line?

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'We were big softies all the way' - Yeah, right

"Swartz faced 13 felony charges including counts of wire fraud, computer fraud and recklessly damaging a protected computer, which could cumulatively carry a sentence of more than 30 years."

Those don't sound like low-sentence, low security prison crimes. Could it be that somebody is lying?

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Re: 'We were big softies all the way' - Yeah, right

Read the article - 30 years might be the maximum conceivable sentence, but the prosecutor says she wasn't pushing for that and thought 6 months would be appropriate. She might be lying, of course, but I don't see why his defenc/se team would want to collude in such a lie.

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Re: 'We were big softies all the way' - Yeah, right

@Chris: I think you should read a bit more carefully, all the counts sum up to *over* 30 years. Not maximum, just the average sentence of each count against Aaron. Nobody said 30 is the maximum and exactly because it's not the maximum it's conceivable that Aaron would have spent around 30 years in jail.

The prosecutor might have had good intentions but like she said, in the end, it's up to the judge. The prosecutor could have recommended a lower sentence, sure, but it's highly doubtful a judge would have agreed to that.

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@Chris Re: 'We were big softies all the way' - Yeah, right

" ...but the prosecutor says she wasn't pushing for that and thought 6 months would be appropriate. "

That was my point. I don't see how any prosecutor can bring charges that can net 30 years, or more, and then say , "I only expected him to get 6 months and that was what I was asking for". To my inexperienced and possibly naive ears, it sounds like a lie. It certainly beggars my belief.

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Re: @Chris 'We were big softies all the way' - Yeah, right

The prosecutor effectively decides the sentence.

Almost all crimes in the US (and certainly all white-collar crimes) are decided by plea bargain.

The prosecutor offers 6months if you plead guilty, or threatens 30years if you don't

It saves court time and money and leads to the prosecutor getting a very politically advantages 100% conviction rate

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@austerusz

"I think you should read a bit more carefully, all the counts sum up to *over* 30 years. Not maximum, just the average sentence of each count against Aaron. Nobody said 30 is the maximum and exactly because it's not the maximum it's conceivable that Aaron would have spent around 30 years in jail."

Your reading skills are very impressive; you are able to read things not even in the article. Here's what it *actually* says, just to refresh you memory:

"Swartz faced 13 felony charges including counts of wire fraud, computer fraud and recklessly damaging a protected computer, which could cumulatively carry a sentence of more than 30 years."

Now I understand that you and others like you feel a compulsion to dramatize the matter in order to maximize its political and propaganda value, but out of curiosity, where exactly do you see anything about "average sentences" or any similar foolishness? A phrase like "more than 30 years" means "a maximum of 30 years and a few" and not 40 or 50 or 397 and why it is so opaque to you is a question worth answering. It is not a phrase difficult to understand, except, I have to suppose, if one's preconceptions do not let you understand very plain, everyday English.

Unless of course you want to cite a source that says that the sentences carried cumulative prison time of than, let's say 35 years.

That he would spend 30 years in prison may be "conceivable" to you and other loudmouths but not to anyone who actually knows anything about the court system and the rules governing judges and the sentences that they are permitted or required to impose.

But then again, "ignorance" the very hallmark of the people trying to make political capital out of this guy's suicide.

"The prosecutor could have recommended a lower sentence, sure, but it's highly doubtful a judge would have agreed to that."

This is yet another example of the ignorance being marshaled to make a martyr out of this guy when his real problem was psychiatric and was of his own doing (and more than likely the encouragement of his acquaintances such as Lessig and similar trash who either tacitly or explicitly encouraged stupid behavior like undermining a non-profit academic archive. What kind of asshole does things like that? JSTOR is NOT Elsevier for fucks sake.) You can think that it's "doubtful" that a judge would agree to a sentence of less than 30 years but just what are you basing that opinion on? Let's be honest: it's just something you pulled out of your ass. Find me examples of people who have committed non-violent crimes, with no profit accruing, who were first time offenders and received prison sentences of any appreciable length. And we can compare Swartz' case to whatever cases you come up with. I will be very surprised if you find *any*, but *if* there are, then they would be few and with circumstances making them very different than this case. (I.e. espionage, etc.)

One last word: if what USDA Carmen Ortiz says is true, and if Swartz' lawyer has been the source of all the misinformation and disinformation floating around, then Swartz' lawyer needs to be disbarred.

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Crimes also have minimum sentences, so what does the minimum sentences of those 13 charges add up to?

If it is more than 6 months, the attorney is lying,

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Re: 'We were big softies all the way' - Yeah, right

Some years ago the maximum penalty for burglary is 14 years, which was also the maximum sentence for possession of pot. But we know that hardly anyone got hit that hard. £25 fine plus costs, or probation. Maybe if the rozzers caught someone burgling multiple times they'd get a short custody sentence. The maximum is never what a first timer gets.

My impression is that this is mostly the middle classes not thinking that the law applies to them.

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