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 …

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  1. Alan Johnson

    No one knows and no one will now know whether he was guilty of anything. He has at least a reasonable defence that he committed no crime at all. He had permission to use the network and he had permission to download the documents. Some of the charges seem without any foundation at all for example 'reckless damage to a protected computer system' .

    The problem is:

    Completely disproportionate punishments were computer crimes are concerne din the US.

    Plea bargain system

    1. Anonymous Coward
      Anonymous Coward

      Optimist!

      Don't you realise that in the modern common-law system, once you are dead, you are automatically guilty of anything you are accused of? Look at recent developments in England (Jimmy Savile, Cyril Smith, John Peel) - no-one says "alleged" - they all did it because the police said so.

      1. Manu T

        Re: Optimist!

        "Don't you realise that in the modern common-law system, once you are dead, you are automatically guilty of anything you are accused of? Look at recent developments in England"

        Indeed the UK justice also goes in the wrong direction. Soon everybody is afraid to die. :-)

  2. Alan Johnson

    No one knows and no one will now know whether he was guilty of anything. He has at least a reasonable defence that he committed no crime at all. He had permission to use the network and he had permission to download the documents. Some of the charges seem without any foundation at all for example 'reckless damage to a protected computer system' .

    The problem is completely disproportionate punishments for computer crimes and the plea bargain system. The combination drives people to think they have no alternative but to acept significant punishments without any chance to proof their innocence because of massively disproportionate sentance if they please innocent and are unlucky.

    Computer crimes can be serious but when unauthorised log on to an insecure system of no real significance is classified as cyber terrorism there is a problem akin to the witch trials of the past.

  3. Anonymous Coward
    FAIL

    > ...a sentence that we would recommend to the judge of six months in a low-security setting.

    Whay, to miss the point.

    This guy shouldn't have been convicted of anything.

    JSTOR didn't want to press any charges against him. That should have been enough for the US government.

  4. Nigel 11
    Mushroom

    Lesson for UK to learn: scrap extradition treaty with USA

    What happened in this case is almost certainly what would also have happened to gary McKinnon, had our home secretary not suffered a last-minute attack of commonsense.

    the US "justice" system is designed so that prosecutors can and do put innocent people in jail for several years, because the alternative is something like risking incarceration for life with no prospect of ever being released. We should not extradite anyone to the USA, until a UK court is satisfied:

    That there is prima facie evidence of a crime and of the accused person's guilt

    That the correct jurisdiction to try the case is the USA not the UK

    That the alleged "crime" is criminal under "natural justice" or UK law, as well as US law

    And IMO, that the accused person is not and will not be threatened with any punishment that is in the opinion of a UK court, grossly excessive. Because that's how they persuade innocent men to plead guilty, or to kill themselves.

    1. Anonymous Coward
      Anonymous Coward

      Re: Lesson for UK to learn: scrap extradition treaty with USA

      I completely agree.

      My country has lost it's moral compass; in an effort to make headlines and get convictions, all thoughts of ethics and justice for citizens everywhere in the USA have been tossed into the trash heap.

      Every day they are making a mockery of the Constitution and taking away more liberties. It started with the "Patriot Act' and keeps going.

      Whatever your opinion of Bradley Manning is, he does not deserve being held naked, on suicide watch and being harrassed every couple of hours so he is unable to sleep.

      The legal harrassment of Aaron Swartz just adds to the litany of crimes.

      What makes these people any different than the real criminals?

      Nothing, in fact they are WORSE!

  5. Anonymous Coward
    Anonymous Coward

    thank you, Hollywood.

    Your greed and lawyers have killed more people than all the guns I've ever owned. Now we see why you and your actors support gun bans-you want to keep getting obscene profits for hiring people to play pretend and if that wasn't enough, making sure to "support" enough politicians to modify copyright laws so you can play games in court to break anyone who doesn't recognize your "ownership" of 100 year old public domain songs without worry of physical retaliation. Pretty easy to keep the rabble from disturbing you in your high rise office if sound deadening and distance keeps ineffective protests from your ears and armed "security" guards to keep them from confronting you personally.

  6. Highlander

    Word of the day - concurrent

    Ever heard that word all you panic merchants? Cumulative is not the same as concurrent. Even if the 13 counts against Swartz had a cumulative maximum penalty of 30 years, it's more than likely that due to mitigating factors (such as no financial loss, no violence and no personal gain) he'd have felt the light end of the sentencing spectrum. Then we come to the simple fact that the sentences would likely have been served concurrently as is common in cases with multiple counts.

    The truth here is that someone broke the law repeatedly and faced a period of time in a minimum security setting. The fact that he killed himself does not make the justice system wrong for prosecuting someone that broke the law. Just like his offenses, his decision to kill himself was his alone. We have no idea what advice his lawyers were giving. given the facts of the case I would hope that they would have been level headed and pointed out the likelihood of a light sentence if found guilty.

    Regardless, it seems somewhat asinine to blast the justice system is a criminal decides to kill them self rather than face the music. Just because we call the crime white collar and it obviously was not a particularly severe offense does not alter the fact that it was an offense.

    1. KBeee

      Re: Word of the day - concurrent

      What criminal is this? Did I miss the trial? Or do you mean the Accused.

  7. Local G
    Thumb Down

    Don't look now, Carmen, your self-serving is showing.

    "While at the same time, his defence counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge."

    Plea bargains are AGREEMENTS between defendants and prosecutors. If the prosecution does not agree to "a sentence of probation", the judge won't even look at it. What are you saying, Ortiz? That you would have agreed to probation?

    Don't you think Ortiz cleared this case with Holder in Washington? The DOJ were still smarting from letting O'Dwyer free and their appetite for tormenting victims had to be assuaged.

    As far as prosecuting the case after charges were dropped, victims of crimes are not competent to know when society and the law should continue a prosecution. The law permits a prosecutor to go forward even when the complainant withdraws. After all, what is the point of a 'nanny state' without a rule like that?

  8. Donald Becker
    WTF?

    "...his defense counsel would have been free to recommend a sentence of probation.Ultimately, any sentence imposed would have been up to the judge."

    Judges rarely make a critical review of a plea bargain agreement. The defense isn't allowed to recommend a sentence of probation in court -- the judge only wants a final agreement. Those statements are trying to shift responsibility. The prosecutor's office has the sole ability

    And, to address an earlier comment, a plea bargain all but precludes a later appeal.

    I can see how this was a non-choice. Accepting a felony conviction would destroy his credibility and effectiveness -- essentially his life-long goals and "career". He didn't have enough money for a strong defense in a trial where he faced a 50 year maximum sentence (30 years was "typical", not maximum).

    I've read that the room the laptop was found in wasn't regularly locked, and that a homeless man stored his possessions there. If that's the case, why was the prosecutor treating access as a felony-level offense?

  9. Kevin Fields

    So, Swartz isn't responsible at all for making the decision to end his life? I find this ideology disturbing.

    1. Local G
      Unhappy

      Who killed cock robin?

      It doesn't matter who is responsible for Aaron Swartz's death. What matters is that he is gone. And whatever innovative work he had left in him is gone too.

      How stately America looks when she cuts off her nose to spite her face.

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        1. This post has been deleted by its author

        2. Local G

          Re: Who killed cock robin?

          Death Before Dishonor: one man's excellent plea bargain and terms of probation, is another man's disgrace.

          It was Aaron's call, not ours.

    2. Intractable Potsherd

      Mr Fields ...

      ... have you ever had clinical depression? Do you know the feeling of utter worthlessness of the whole process of living that comes on every day? Do you know how difficult it is to keep going when their *aren't* malicious prosecutors banging on your door, and when you are getting all the support possible? I do, and so I can understand why Mr Schwartz killed himself.

      If you don't, I would respectfully ask you to KEEP YOUR STUPID MOUTH SHUT.

  10. DanceMan

    If you read some of the linked articles, they provide more perspective on this case.

    Firstly, Swartz apparently was broke and had no money to go to trial. So that was not an option.

    Second, the three cases Ortiz prosecuted against health care or drug companies, which involved potentially life-ending consequences, were resolved with only fines. No execs or anyone else were held responsible or threatened with prison.

    So charges of prosecutorial malice or irresponsibility are entirely appropriate, if not for Ortiz and Heymann, then certainly for the US (In)Justice system.

    I'm Canadian, so not expert, but many US Justice officials are elected, which leads to prosecution for political advantage. This has been seen over and over in cases where convictions of the innocent have taken place. Even after innocence has been well established, they have fought tooth and nail to keep the innocent jailed to enhance careers. One recent case required someone to plead guilty to a murder he did not commit in order to avoid years more of incarceration while fighting the case.

    Ortiz and Heymann should be dismissed. It would be a small start.

    1. tom dial Silver badge

      Upvoted on general principles. U. S. Attorneys are appointed by the President, with advice and consent of the Senate, and serve at the President's pleasure.

    2. Vic

      > Ortiz and Heymann should be dismissed.

      You appear to have mis-spelt "incarcerated"...

      Vic.

  11. Mikel

    Listen up kid, I'm only going to say this once

    We got you dead to rights on these 13 felonies here, and they're doozies. Look at -'em! Computer hacking, cracking and mayhem no jury or judge is gonna understand. Heck, the judge in your case doesn't even use a computer: he dictates his email. These are fine fat felonies that retail as much as four years each in the big time federal pound me prison full of hepatitis and AIDS and stabbings and beatings and whatnot. Now we'll probably only ask for half that if you put us to the trouble of working you through the court. Your mother will cry every day until she dies. Your family will burn every asset they have on fruitless appeals and die poor. They will be disgraced before the community.

    But I like you kid. You remind me a little of my nephew - he's a bright kid too. My docket is full and we could save some time here. Besides, I've got a quota to meet and I'm having a little bit of a dry spell, so you could help me get the ball rolling again. Tell ya what I'm gonna do. I'll let you have the whole baker's dozen 4-year bigtime felonies for the low, low price of only two weeks each. That's, what, total six months easy time in the jammies and slippers recreational jail for the slightly criminally inclined. What a steal! That's one cent on the dollar! You'll be out by summer. But you gotta act fast. I got a fence I'm talking with this afternoon I can probably get to turn state's evidence and then this is all off the table. So. Whaddya say? We in business?

  12. Tony Paulazzo
    Alien

    The Village

    There is little I can say to abate the anger', says Ortiz

    Kill yourself? (not advice, just an option, it probably would abate the anger).

    the product of a criminal justice system rife with intimidation and prosecutorial overreach

    Don't allow the prosecution to 'make deals' then this situation wouldn't arise, how about letting the court system reach its own conclusion of a persons guilt or innocence and effective punishment?

    Any person who serves their country in any political fashion should not be allowed to go work for any other industry at retirement, but kept in villages where they could garden / write books / take it easy for the rest of their natural - and maybe give them numbers instead of names so no 'evil' corporation can 'get' at them.

  13. Anonymous Coward
    Anonymous Coward

    "That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low-security setting.

    "While at the same time, his defence counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge."

    1) Easy to say AFTER the harm is done.

    2) So Carmen Ortiz is saying the defense counsel and the judge are to blame?

    "...did not warrant the severe punishments authorised by Congress..."

    1) Again this read very sour AFTER the "incident". As again Carmen Ortiz shuffles off her responsibility in this matter.

    2) So the Congress is supposedly responsible? And who is the "congress"? Which means the entire US government is wrong/corruptl/communist/evil.

    These white collar criminals pursue their own wellbeing over the life of one idealistic individual. An individual whom really fought for "freedom" (in this case freedom of information). The same "freedom" that's supposedly held up high by that same government.... tssk tssk tssk.

    Gee, Is that the "Land of the free"? Is that how they treat their free people?

  14. Anonymous Coward
    Anonymous Coward

    The "Land of the Free" does not exist any longer

    Defense lawyers DON"T GET TO RECOMMEND ANYTHING on sentencing.

    The specific penalty of law is already codified and in most cases, minimum sentences for each count would apply.

    In many cases, not even the Judge or Jury are able to modify the minimum sentencing requirements. This is a result of the way some laws are written, especially draconian ones having to do with so called copyright and hacking infractions. Swartz could have murdered several people and been subject to less sentencing.

    Ortiz deliberately and with malice aforethought "upped the ante" on Aaron Swartz (Thanks Mikel for providing a truly realistic interpretation of the plea bargain conversation) in order to put additional pressure on him to settle and take her guilty plea.

    Aaron Swartz knew he was not guilty of these supposed crimes so on principle he refused to take the plea bargain. He was also quite broke and could not afford to pay for further legal defense.

    When confronted with the reality that; the case against him could not be won, and the excessive pressure from the prosecution (I should say prostitution), his mental illness got the best of him and he committed suicide.

    If what Aaron Swartz did was considered to be criminal, what Ortiz did cannot be considered to be less than "Depraved Indifference resulting in Homicide".

    1. Anonymous Coward
      Anonymous Coward

      Re: The "Land of the Free" does not exist any longer

      Hopefully the family of Swartz will prosecute Ortiz then on "Depraved Indifference resulting in Homicide". So this bitch gets a cookie of her own!

  15. Anonymous Coward
    Anonymous Coward

    This must be the version ...

    where Portia wants a pound of flesh. And gets it!

  16. koolholio
    FAIL

    Just some facts and food for thought...

    Whilst we're all still alive and not in prison:

    The system clearly failed in its design to 'rehabilitate' offenders... Because thats what it was designed to do?

    It failed to identify a 'victim' to fund the charades... that was willing to take the case further...

    It failed to convict a supposed offender, unless after his suicide / death counts? ...

    It failed to add in any remorse for actions directly or indirectly of politicians or of those in power...

    I wonder why he wanted to 'break rules' in the first place?

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