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U.S. Attorney Carmen Ortiz Issues Statement on Aaron Swartz Case

369 points by revorad 14y ago

Kliment 14y ago
So how does this mesh with the doj-issued press release stating the 35 year term?
- RobertHoudin 14y ago
  Could you provide a link to that please?
  - Maxious 14y ago
    > ALLEGED HACKER CHARGED WITH STEALING OVER FOUR MILLION DOCUMENTS FROM MIT NETWORK July 19, 2011 > AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million. http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.... Maybe us common folk don't understand that when the Department of Justice says 35 years they don't mean 35 years? Do the defendants in these cases understand how many years they are actually being expected to serve?
    - rhizome 14y ago
      Do the defendants in these cases understand how many years they are actually being expected to serve? No. This is intentional.
    - anonymouz 14y ago
      It is obvious from this press release from the formulation "faces up to 35 years in prison", that they are simply quoting the maximum penality for the charges. The prosecutors press release says that they didn't intend to push for maximum penality. These two statement are perfectly compatible with each other.
      - joshz 14y ago
        After the fact you can try to make it sound however you like. But when your option is to get off the lawn or get a bullet in the head, it sounds entirely different. The release is loaded with statements making it sound like he "deserved it" and some empty "didn't intend to" is worthless.
      - jacquesm 14y ago
        I think those two statements are in direct contradiction with each other, and Aaron's lawyer is on the record that they were putting up a > 10:1 ratio for a plea bargain. So they may not have been seeking the technical maximum but they were definitely beating their drums quoting that maximum where ever they could. Now that that makes them look terrible they're backpedaling on that but there is enough documentation out there to make this look like what it is: full-on damage control. The Aaron Swartz story is starting to get some serious play in mainstream media and that is something that worries people like Carmen Ortiz more than anything else.
        anonymouz 14y ago
        Why would those be contradictory? If the prosecution charges a person with X, and the maximum penality for X is, say, 10 years then it seems perfectly reasonable to say that this person faces up to 10 years in prison. In court the prosecution may well argue for, say, a 5 year penality under the given circumstances, and ultimately it's up to the judge.
        josephlord 14y ago
        The maximum was so high they didn't even need to go near it for the terrifying threats of the > 10:1 ratio. The talk is that the plea would have been 6 months and that at trial they would have asked for 6 years. 12:1 ratio and they can truthfully say that they weren't asking for the maximum. They can't truthfully say that they wouldn't seek the ridiculous though. Likewise she focused on the plea bargain offer of side of 6 months but not on the fact that this would have involved admitting guilt to 13 felonies. For someone with honour who really believed themselves not guilty (at least of serious crime) that could be as much of an issue as 6 months low security detention. For lawyers it seems to be a game and the sentence and number of convictions is the score; unfortunately the victims of the law take it more seriously. Always look at what isn't said not just what is said.
    - blablabla123 14y ago
      +1 for "us common folk"
    - deleted 14y ago
      [deleted]
  - droithomme 14y ago
    http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.... > AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million. We can compare this to United States Attorney Carmen Ortiz, who, facing the ruination of her career over her actions, says in this new announcement on Wednesday, "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." This new statement does not align with the documented history of statements made by the DOJ as evidenced in the above link. Perhaps though she is trying to argue that she, as the United States Attorney for the District of Massachusetts, is somehow not part of the United States Attorney's Office for the District of Massachusetts that issued the press release which says "SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million". This would be a difficult argument to make given that the press release itself specifically names U.S. Attorney Ortiz as the person who made the press announcement.
    - deleted 14y ago
      [deleted]
  - Kliment 14y ago
    Several others did already, but here is a mirror in case the DOJ decides to take it down http://www.wired.com/images_blogs/threatlevel/2011/07/Swartz-Aaron-PR.pdf http://www.wired.com/images_blogs/threatlevel/2011/07/Swartz...
wickedbass 14y ago
While it is nice that she is passing blame to Congress, if it were only a "6 month low security setting" being discussed, why wouldn't Aaron have been told of this? Why the additional and ultimately 13 felony charges when he was MOST concerned with not being labled a felon. Why hold that 50 year sentence above his head with no HOPE in his own mind because he was left in the dark. "As a parent and sister", would you want your child to be stranded for two years with the full weight of the federal government and their impending punishment upon you hidden behind a dark veil? As a human, I both recognize that she is probably saddened and shocked that he took his life (and probably freaking out bc of the white house petition), but at the same time, it's clear that this shouldn't be allowed to happen, so if it means she loses her job - tough luck.
- deleted 14y ago
  [deleted]
  - panacea 14y ago
    So the charges brought equated to three options: 1) We put you away for the rest of your adult life. 2) You admit that you're a guilty son-ova-bitch and you do a small amount of time with a felony conviction that hangs around your neck forever. 3) ... There is no third option on the table. You don't go to trial on those odds and hope that the system decides in your favour, otherwise, LIFE (gavel drop).
- corporalagumbo 14y ago
  When cops come across otherwise nice young white guys who believe themselves invulnerable or above the law and are doing stupid, impulsive things, their usual practice is to "scare them straight." So they get tough on them, tell them all of the awful consequences they're in for, put them in a horrible, cramped cell, maybe throw them in with some real nasty characters, and, above all, get their parents involved. It's a form of kindness. If you make them crush their self-confidence and make them feel like shit, they learn their lesson. They lose that blithe self-confidence and begin to realise they have to play by the same rules as everyone else. And then, they will hopefully turn into constructive, positive-minded members of society. The practice varies with the character of the kid, the ugliness of their crime, etc. I'm not saying this is what Ortiz and co were thinking with Aaron necessarily but I wouldn't be surprised if it was an element. Aaron's behaviour was very removed from the situations I'm talking about, so the participants and response was very different. But he sounds like quite an... intense person, so maybe they decided they needed to put a lot of pressure on him to crush his spirit. Of course, usually the kids don't kill themselves - but then usually it's not the justice department slapping them on the wrist. They should have realised that people like Aaron are very fragile. I won't apologise for that. A more delicate touch was required, because this outcome is just awful and a disaster for all parties. A real shame. But I do want to point out that their actions in frightening him were not necessarily without reason. By the way, I have spent a night in a cold concrete cell sobering up and feeling like the world's biggest idiot. My escapade cost me $2700 and a lot of self-respect, and though it was awful at the time I am thankful and realise I learned my lesson very economically. Hearing Aaron's story is really painful.
UnoriginalGuy 14y ago
> and did so reasonably. They still believe that? Sorry but they're unfit for the job. They need to go. There was nothing reasonable about their actions on this case. > a sentence that we would recommend to the judge of six months in a low security setting. Six months in jail for downloading files that were accessible to him? All he did was violate terms of service! Are we going to start arresting under-age Facebook users or gamers that cheat next? Should they get six months too? This statement is just icing on the cake that proves that Ortiz is inappropriate for that job/role.
- corporalagumbo 14y ago
  http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.... Downloading four million files, apparently. And if by breaking terms and services you mean illegally distributing protected content and threatening the business model of JSTOR then yes, I suppose that is true.
  - jacquesm 14y ago
    > illegally distributing protected content Aaron never did that. He may have been planning that but nobody can say this for a fact.
    - Vivtek 14y ago
      Like Philip Greenspun says, for all we know he wanted to do metaanalysis. There's no evidence at all he planned to distribute the files.
    - RandomComment 14y ago
      Really? Not sure if it is just me but i found the JSTOR.torrent years ago and I always assumed it was from Aaron, the file was big like 35gb, I know there is another branded Aaron torrent floating around somehwere Ah worked it out, someguy did it a while ago, http://thepiratebay.se/torrent/6554331/Papers_from_Philosophical_Transactions_of_the_Royal_Society__fro http://thepiratebay.se/torrent/6554331/Papers_from_Philosoph... and released his version as a tribute to Aaron. Mystery solved.
jacquesm 14y ago
> I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. That's why you assign investigations to independent entities, and that's why butchers aren't allowed to do their own health inspection. Whether it was appropriate or not is not for Carmen Ortiz to say. "The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases." Is in direct conflict with Aaron's lawyer's account of the run up to last Saturday as well as other statements issued earlier, she may come to regret those words if he has documentation to prove his side of the story. Aaron's lawyer claims they were threatening just the opposite if he did not take a guilty plea. In particular: "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." Is a falsifiable claim. I'm looking forward to Aaron's lawyers' response to this statement.
- rhizome 14y ago
  "...did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases." Scapegoating Congress now, she is truly shameless in invoking the Nuremberg Defense.
  - thomasz 14y ago
    Can we please not Godwin this?
    - jychang 14y ago
      Strictly speaking, we haven't Godwin'd this yet.
    - jacquesm 14y ago
      He's not Godwinning this at all. Claiming superior orders is exactly what the Nuremberg defense was all about, it is simply an accurate association. Just because something happened in relation to WWII does not automatically mean that any reference to it invokes Godwin's law, that's for inappropriate comparisons. This one is entirely appropriate as far as I can see.
erichocean 14y ago
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. The absolute dishonesty of this statement has only further convinced me that firing this political appointee to prevent her from further harming citizens is the only appropriate action for our government to take.
- blablabla123 14y ago
  You have any proof for your statement? This 35 year (or 50 year) thing mentioned in many blogs might be questionable. To be frank I feel myself a bit fooled by this information, reading yesterday that 6 month have been proposed to Swartz. When talking about things as serious as death, we seem to assume that every information is depicted really carefully, but this is far from being true.
  - jacquesm 14y ago
    > This 35 year (or 50 year) thing mentioned in many blogs might be questionable. It's not just in blogs, it is also in DOJ press releases attributed to Carmen Ortiz, linked elsewhere in this thread.
    - blablabla123 14y ago
      I wonder where Ars Technica gets their information from... "If convicted on all charges, he could have spent more than 50 years in prison." http://arstechnica.com/tech-policy/2013/01/internet-pioneer-and-information-activist-takes-his-own-life/ http://arstechnica.com/tech-policy/2013/01/internet-pioneer-...
      - sp332 14y ago
        That's up to the judge of course. The DA can make recommendations, but they don't decide what the sentence is.
      - ceol 14y ago
        That's if he was found guilty and given the maximum sentence for all charges, which a lot of people seem to be missing. The key words there being "could have."
thoughtcriminal 14y ago
Prosecutors (and lawyers in general) are all about drama and story. Everything is amplified. Reality is distorted. It's worse than cable television. Ortiz framed a brilliant, selfless young man as a criminal who should be locked up behind bars. She and others inflicted mental torture on him until he couldn't bear to live any longer. She is no doubt a wordsmith, but she is not a nice person, no matter what the gullible fools on HN say. She shouldn't be working with and against people anymore, or for the government. To think that a carefully calculated statement could 'clear the deck' and make everything even-steven is ludicrous.
- Udo 14y ago
  > no matter what the gullible fools on HN say I agree with you on all the other points, but apparently you haven't been following this thread too closely.
- WhaleBiologist 14y ago
  >Ortiz framed a brilliant, selfless young man as a criminal who should be locked up behind bars. Law is about drama? There's plenty of drama and hyperbole in your post. He broke the law. Which means he is a criminal. If you think the laws are retarded, then how you protest that is your prerogative. If you choose to protest by blatantly and purposely breaking the law, unless you are 99.999% certain that an obvious interpretation of the law violates the constitution, you should expect to get charged and convicted of breaking said law. Prosecutors aren't hired to be nice, they are hired to represent the state and bring charges against people who violate the state's laws. If you seriously think that he shouldn't be charged with breaking the law because 'he didn't deserve it', 'he did not have malicious intentions' or 'the law is dumb', then by extension no one should be convicted of any crime, because there will always be some point of view where you could think that of anyone.
  - keithpeter 14y ago
    "He broke the law. Which means he is a criminal." I've refrained from posting here as I'm in the UK, not my issue &c but I do work with young offenders and adults in retraining &c. 'criminal' is not a 'type' or irrevocable condition. It is a social status that exists in the mind of people and state records, especially in this case with little measureable damage to anything or anyone.
binarymax 14y ago
Before this statement was issued, I didn't think we should be chasing them down to make an example of them[1]. Now that she is dishonest and trying to brush everything aside as 'business as usual', I am changing my stance. She needs to go. Not to make an example of her, but because we should not tolerate such dishonesty and smugness in our federal court system. [1] http://news.ycombinator.com/item?id=5053980 http://news.ycombinator.com/item?id=5053980
- krutulis 14y ago
  I've had a similar reaction to the Ortiz statement. Its self-aggrandizing tone of righteousness leaves me increasingly offended by her apparent lack of integrity and empathy in the ongoing pursuit of influence and power. This reveals such a striking contrast: Aaron's choices indicate he valued both integrity and empathy very highly.
- jskonhovd 14y ago
  Completely agree. There's no place for people like her in our society. I hope this kills her career, but I doubt it. Even if he gets fired she still will be corrupting the system in some capacity with her influence. But at least she won't end up with a job like Marsha Blackburn.
  - res0nat0r 14y ago
    I think the collective HN IQ has dropped by about 40 points this week with all of these moronic statements. She should get fired for doing exactly what she was put in to office to do? IE: Follow the federal sentencing guidelines like she should? In no way was there ever going to be some 30 year sentence. Six months maximum is not over reach.
huhtenberg 14y ago
Let me just throw something out there. It's obvious that the investigation was a contributing factor to Aaron's decision to take his life, but to what extent? Was this at all investigated by the media, or have everyone just made the connection, because it was the easiest explanation?
- erichocean 14y ago
  Aaron killed himself two years to the day of this whole ordeal starting. Either that's an incredible coincidence, or Aaron decided to take his life as a political statement. Given his past actions, that's an easy assumption to make. Also, his request for a plea deal was denied in very harsh terms two days before Aaron took his own life, so even knowing just that and the fact that he really did not want to be labeled a felon, it's easy to make the connection. Finally, Aaron's own family, partner and legal representation believe they were related, i.e. those closest to Aaron believe the federal trial was a major cause. Of course, he also had a history of dealing with depression; I don't think anyone's denying that.
  - huhtenberg 14y ago
    Thanks for the summary.
- icelancer 14y ago
  What do you want - an algorithm that says the investigation was 72.3% +/- 5% margin of error responsible for his suicide? There's no way to know, but it's probable that it's a large contributing factor based on what Lessig et al. wrote.
bgmasters 14y ago
> 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 defense counsel would have been free to recommend a sentence of probation. That is terrible writing. Ms. Ortiz should be doubly ashamed.
- apl 14y ago
  Remarkable, isn't it? That doesn't even qualify as convoluted legalese; that's simply atrocious style.
intended 14y ago
So Ortiz' message is that - this is my job I fight for the law, and I agree that its over the top, but it is what it is. Change the framework and I'll do what it says. The law (edit: and system ) is set up so that a "good prosecutor" would work to prove Aaron was guilty of breaking those laws. The final sentence, which is the responsibility of the Judge would have to take account of everything especially his motivation, to give him an appropriate sentence. "I'm just doing my job, and the final sentencing isn't in my hands" --- Fine - that's her version, and frankly - its exactly as expected. There really are few if any other ways that Ortiz could explain her actions. Strangely its also pretty much the exact defense that the Financial industry has used so far. AKA these are the rules, hate the game not the player. Sometimes people from the outside are required to point out that somethings are obviously morally wrong. Especially when Insiders end up missing it.
- jasonzemos 14y ago
  There's an old saying that a good prosecutor will convict most guilty men, and a great prosecutor will convict a few innocent ones too. That's how these machines think. She's right only in that congress was stupid enough to give her any form of discretion at all.
pms 14y ago
> "As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible." Protecting? Just like they protect "free knowledge"?
pfortuny 14y ago
There are people along history (and I mean specifically civil servants, like Thomas More -the first that comes to my mind but by no means the only one-) who have even given his life because they did not want to comply with 'the law'... This 'complying with the law' is fedding me up. Someone has already noticed that bankers did also act 'with the law on their part'... And all the rating agencies, they suddendly 'just offer counsel and advice', they are in no way suggesting that a product is fit for buying or selling... Is there a conscience out there?
- Yaa101 14y ago
  In our opinion not, but the rules are that only money decides the rules. And the rules are that other people are always to blame and that the law, no matter how corrupt, is the law. The problem is that especially these people (civil cervants) are chosen on this fallacy, are only loyal to their families and peers, all others don't exsists or are there to pull a leg out. There is a huge Us vs. Them attitude amongst most people (not all, gladly) serving any government.
gadders 14y ago
It's sad that he committed suicide, but that is not a rational response to 6 months in a low security jail. Conrad Black did 30+ months. Kevin Mitnick did several years. Even Martha Stewart managed 5 months. Also, with his profile and past history, his felony conviction would not seriously impede any career he wanted to undertake. Finally, the whole point of civil disobedience is to break a law, and get caught, punished and make (to a certain extent) a martyr of yourself to draw attention to your cause.
- ghshephard 14y ago
  Except defending himself would have cost on the order of a million dollars (Per Lessig) - does he go to his family for that? Even if he turns out to be found completely innocent, him, his family, and those who he can turn to would have been wiped out financially. That part of the story doesn't get enough attention.
  - jstevens85 14y ago
    If he accepted the plea bargain of six months, then the case wouldn't have gone to trial, avoiding the excessive legal fees. I don't understand the timeline, but had he accepted the plea bargain, is it not possible that he would have already served his sentence by now?
    - BrokenPipe 14y ago
      Maybe. The point is that you shouldn't submit to 6 months of federal prison without trial or appeal, all the money loss for the two years in the case and your life ruined by the felony counts records for using a script to download files you already have legal access to. At worst all there is to this is trespassing, on an open campus on an open network etc etc.
      - mbesto 14y ago
        You're probably right, you shouldn't, but unless you offer up a better suggestion for a law system, it is it what it is.
forrestthewoods 14y ago
"...we would recommend to the judge of six months in a low security setting. ...his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge" Little known fact here. When you accept a plea bargain you do not accept a sentence as part of that. Often times you agree to plea to lesser chargers which have a lower maximum penalty but you still run the risk of being sentenced to the max. There is also the chance the judge will give a longer sentence with enhancements. It's possible you will have not been convicted, tried, or even charged for those enhancements. This has been ruled unconstitutional by the Supreme Court of the United States. However that doesn't stop judges from doing it anyway. When you are crushed, broke, and in jail what are ya gonna do, sue?
- pseingatl 14y ago
  The plea bargain could have been capped at six months. US Attorneys do this all the time. There is much more that the office can do than just recommend a sentence to the judge. The defense attorneys may not have wanted to run the risk of consecutive sentencing. The probation office could easily have reached the conclusion that the property taken was valued at $5 million based on the FBI affidavit and at that point probation is not permitted under the Guidelines. Supervised release additionally would have prevented any computer use for 2-3 years. The defendant would have gotten low security anyway and that determination is not up to their office or even the sentencing judge--it is a determination made by the US Bureau of Prisons. The statement is misleading in more than one respect.
  - waps 14y ago
    However in this case there were damages involved to outside parties - which meant they had to agree to any plea bargain if the US attorney wanted to present that to the judge.
- jgeralnik 14y ago
  See Jonathan Pollard for example: http://en.wikipedia.org/wiki/Jonathan_Pollard#Sentencing_and_incarceration http://en.wikipedia.org/wiki/Jonathan_Pollard#Sentencing_and...
josephlord 14y ago
Statement Deconstruction STATEMENT OF UNITED STATES ATTORNEY CARMEN M. ORTIZ REGARDING THE DEATH OF AARON SWARTZ As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man.[Sympathy - a good start but no apology.] I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.[Acknowledges anger and public feeling. No comment on their actions.] I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case.[States that they were correct to bring and handle the case. May be read as they handled the case correctly BUT does NOT actually state that.] The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. [Claims the career prosecutors were reasonable. Were all involved 'career prosecutors' or is someone about to be hung out to dry? Alternative reading is that 'career prosecutors' is just trying to make them sound better.] The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. [OK. Then why would they (note Ortiz is not taking responsibility for this judgement) want to seek 7 years if it went to trial] 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. [not stated also admission of 13 felonies or that if he wanted a trial because he believed himself not guilty the appropriate sentence to seek would have been 7 years. Thats what you get for believing you have a right to a trial and not just doing what we say.] While at the same time, his defense counsel would have been free to recommend a sentence of probation. [Not stated: for 13 admitted felonies.] Ultimately, any sentence imposed would have been up to the judge. [Not our responsibility really.] 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. [We were really generous and told Mr. Swartz's attourneys that we intended to seek something between the maximum and ten times what was appropriate (by our admission) if he didn't plead guilty] As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. [Sounds reasonable but does it match their actions?] We strive to do our best to fulfill this mission every day.[But we aren't commenting on the rest of our mission or how we have done matching this mission in this case.]
davemel37 14y ago
"Under my coat is a weary heart, but a kind one-one that could do nobody harm." -notorious murderer two gun Crowley Unless you can improve on the silence, don't open your mouth... Before this statement I had hopes Ortiz had regrets...Now I know she doesn't...where did I leave my pitchfork?
- vijayr 14y ago
  Unless you can improve on the silence, don't open your mouth... Well said
barking 14y ago
Isn't this just the way these things are done in the US? America has an adversarial system of justice. It also has a plea bargaining system. Don't those two together naturally lead to situations where each side will threaten their worst in an effort to gain the best bargain they can from the other?
pseingatl 14y ago
I agree that the "Statement" is misleading. If Ortiz really believed that a Guidelines sentence was inappropriate they could have offered a capped sentence of six months or stipulated to a lower financial valuation of the stolen documents to bring down the Guideline. Neither was done. A prosecutor's recommendation is useful, but it is not binding on the Court. They did not agree to dismiss the other counts of the indictment, and while this would not affect the Guidelines, the sentencing judge could decide to impose sentences consecutively. Swartz would have been without computer access during a two to three year term of supervised release as well. If Ortiz really believed what she wrote in her Statement her office would have limited Swartz' criminal exposure to six months. US Attorneys' offices do this all the time. Hers did not. Her statement is misleading. The cover-up is always worse than the crime and this Statement only makes me wonder what else is out there. She should resign.
OGinparadise 14y ago
"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....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." Yeah, and you added another 9 felonies after he refused the felon label to help him out.
- BrokenPipe 14y ago
  You know, to make it easier for him to take a decision. Such a nice gesture.
bane 14y ago
She forgot to say "allegedly".
silentmars 14y ago
As damage control goes, Ortiz's statement is inadequate. There is a well-supported petition calling her out by name to be fired. There are major media outlets openly questioning not only her actions, but the fitness of the entire Justice Department to act appropriately. Not one or two media outlets, but dozens. The situation seems very serious indeed. This is the bloodless, half-assed kind of statement she makes in response? I don't get it.
arbuge 14y ago
I think this release is worded disingenuously. My understanding of this case is that the 6 month offer was only part of the plea deal the prosecutors held out if Aaron didn't go to trial. If he exercised his right to due process and went to trial, he did indeed risk the full 35 year penalty and no such sentence recommendation was on offer. This is typical of many prosecutors in the US, unfortunately, who attempt to terrorize defendants into accepting their plea deals. It's not much different than the way torture was used in the Middle Ages to extract confessions and secure convictions. It's pretty sad to see a press release that attempts to obfuscate the truth like this.
offshoreguy19 14y ago
I know from personal experience that the US Attorney's Office always states in their press releases the maximum penalty possible that the defendant is facing. Each charge has a maximum number of years and they state the number of possible consecutive years possible. Had Aaron Swartz been found guilty, there is no way he was going to face the maximum penalty. There is a high probability that the penalties associated with the charges would have been run concurrently. Once found guilty, US Probation writes a Pre-Sentencing Report which calculates the time the defendant is facing. This calculation is based upon numerous details, including but not limited to actual damages, criminal history, and offense level with points that range from from 1 to 43. If a defendant agrees with the government that he or she is guilty and pleads accordingly, he or she will generally get fewer points for offense level. If a defendant contests the charges and exercises his or her constitutional right to have his or her case heard by a jury and is found guilty, US Probation will increase the number of points. (Imagine that. The government gives you more prison time for exercising your right to a trial under the Constitution). The more points calculated, the more time a defendant is facing. Good time is applied to a sentence by the federal prison. An inmate is supposed to do 85% of their time if he or she has no infractions, but since the federal prison system has an interest in keeping people imprisoned, the bureaucracy has found a way to deliberately mis-read the good time statute and apply it in a way so that a defendant actually does 86.2% of their time. A sentence of one year or less will not have good time applied. Anything above one year and the good time calculation is applied. The biggest risk in taking a case to trial are the members of the jury. The government educational system has done a great job of dumbing people down so that they follow the government's bidding. ie., "If he's on trial, he must be guilty." Few people actually think for themselves and question what is told to them by an authority figure.
jijji 14y ago
one less court date on her calendar.
ameen 14y ago
> Our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. What were they protecting them against? That Knowledge might've been spread to those who hadn't the monetary resources to read a bunch of Journals? Also, I don't think the law was enforced fairly and responsibly, and it was the exact opposite of what occurred -- A bunch of overzealous prosecutors at the helm pushing for a maximum sentence for civil disobedience.
tlrobinson 14y ago
" Ultimately, any sentence imposed would have been up to the judge. 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." I'm guessing this is a very carefully worded statement.
mycodebreaks 14y ago
Typical lawyer talk. These people are good with words and can talk their way out.
logn 14y ago
What I find really sad about all of this is that it took a suicide for all of this news and outrage to surface. It's understandable but it's depressing. I think some people (not saying Swartz) considering suicide think, I'll show them, or this will make them sorry. This sort of supports that. In Swartz's case the sad thing is he probably never expected this outpouring of support. To him it probably seemed as if the world either didn't care or didn't support him. Just read the old HN post he made for legal fund donations. It's unfortunate he can't realize how most people are on his side.
- jacquesm 14y ago
  Most people weren't on his side because the most harsh details of the case were not easily visible to those not directly involved with the case. If that had been different I think a lot more people would have support Aaron earlier.
sever 14y ago
"somehow led to the tragic result of him taking his own life" That "somehow" word really rings wrong with me. It is not that hard to understand how being under a federal indictment would contribute to depression and even eventually suicide.
kunai 14y ago
Ortiz is simply trying to undo the damage she has already done. Well, Ortiz, lemme tell ya sumthin' -- it ain't gonna work. First of all, the statement reeks of PR tinkering. When every single source points to Ortiz and her cronies pursuing maximum sentences and intimidating Swartz, she comes out with a sorry excuse of an apology that denies it. Also, the 6 months plea deal would be only under one condition, and that is if Swartz acknowledged everything that the gubmint charged him with, which was still a major tarnish to his rep. So what did Swartz do? He had integrity and stood up for what he believed in, and then Ortiz pushed on with defiance. I recommend watching this YouTube video -- seems like Swartz' position is eerily similar to the other protagonist's (and if you haven't watched the movie, you simply must): http://www.youtube.com/watch?v=TKAxnB6Ap4o http://www.youtube.com/watch?v=TKAxnB6Ap4o If only Aaron had Al Pacino standing up for him... By the way, this isn't the first time Ortiz has been a major pain in the neck. A quick Google for "Tarek Mehanna" should be enough to affirm the opinion that Ortiz is a tyrant.
jack-r-abbit 14y ago
So maybe people don't realize but there is a chart that is used for determining possible sentence for any given set of charges. I have seen this work sheet in process. The charges are listed. And there is a book (or document or something like that.. I forget) that explains the max jail time and fine for all these charges. and then there are "special circumstances" for some charges that can add on to the sentence. So if you have a list of 10 charges and you go through each one and examine the special circumstances and tally the whole thing up... you get you maximum (potential) sentence. That does not mean that is what will be sought. That does not mean that is what you will get. That just means that is the max you face.
deleted 14y ago
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BenoitEssiambre 14y ago
Incredible: Post by Aaron Swartz describes exactly his prosecutor's reaction. http://www.aaronsw.com/weblog/semmelweis http://www.aaronsw.com/weblog/semmelweis
tibbon 14y ago
Regardless of time served, do federal prosecutors not realize what the scarlet letter of a FELONY carved on your chest does to your ability to lead a normal life? Coupled with occasionally absurd bans from using/owning a computer or similar device for years (see: Kevin Mitnick) for anyone seen as a 'hacker', this absolutely destroys a person's life. I can't imagine how hard finding an apartment in SF (already hard) becomes if you have to disclose that you're a convicted felon with time spent.
nodata 14y ago
"I haven't bothered to mention the whole sad Aaron Swartz saga, because it's been covered elsewhere. But having the involved US attorney then basically lie about it all in a very public statement is something that I find particularly offensive." -- Linus Torvalds, https://plus.google.com/102150693225130002912/posts/ggzfzKyrcRQ https://plus.google.com/102150693225130002912/posts/ggzfzKyr...
- lotso 14y ago
  From his Google+ post "Yesterday (as reported by the Wall Street Journal and elsewhere): "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." And July 2011 (as posted by justice.gov itself): "SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million"" Stating that a person faces x amount of years is not the same as saying we are seeking to put you in jail for this many years. Correct me if I am wrong, but this is how anyone who allegedly broke the law would be treated. The law you broke states you can face up to x, y, and z for breaking it, but hardly anyone gets that maximum sentencing. Hell, even murderers rarely get the maximum sentencing.
mildavw 14y ago
"six months in a low security setting." That one word, "setting," puts her squarely in bullshitter territory. The obvious and honest word is "prison". But that's too dark a color for the painting she's holding up for us.
accountswu 14y ago
From a comment on wsj: Please email the US Attorneys and tell them how you feel: carmen.ortiz _AT_ usdoj.gov and stephen.heymann _AT_ usdoj.gov
seanp2k2 14y ago
Did anyone seriously expect an apology? This is disappointing, but not really surprising. This quote esp. got me: "I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case." Strongly disagree, and I hope the docs come out to prove against this point and burn them.
mchusma 14y ago
"while a violation of the law" I have noticed that government agents are relatively quick to assign blame when there has been no conviction. The charges were filed & ultimately dropped, so there has been no determination by the government that this was a violation of the law. I've been a victim of this myself. When launching the first online notary service, the CA secretary of state published an erroneous notice that we had committed a crime. When we spoke with their office, they indicated that there was no evidence of any crime. It ultimately took 2 years, and the threat of a lawsuit, to remove the false statements.

369 points by revorad 14y ago

Kliment 14y ago

So how does this mesh with the doj-issued press release stating the 35 year term?

RobertHoudin 14y ago
Could you provide a link to that please?
- Maxious 14y ago
  > ALLEGED HACKER CHARGED WITH STEALING OVER FOUR MILLION DOCUMENTS FROM MIT NETWORK July 19, 2011 > AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million. http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.... Maybe us common folk don't understand that when the Department of Justice says 35 years they don't mean 35 years? Do the defendants in these cases understand how many years they are actually being expected to serve?
  - rhizome 14y ago
    Do the defendants in these cases understand how many years they are actually being expected to serve? No. This is intentional.
  - anonymouz 14y ago
    It is obvious from this press release from the formulation "faces up to 35 years in prison", that they are simply quoting the maximum penality for the charges. The prosecutors press release says that they didn't intend to push for maximum penality. These two statement are perfectly compatible with each other.
    - joshz 14y ago
      After the fact you can try to make it sound however you like. But when your option is to get off the lawn or get a bullet in the head, it sounds entirely different. The release is loaded with statements making it sound like he "deserved it" and some empty "didn't intend to" is worthless.
    - jacquesm 14y ago
      I think those two statements are in direct contradiction with each other, and Aaron's lawyer is on the record that they were putting up a > 10:1 ratio for a plea bargain. So they may not have been seeking the technical maximum but they were definitely beating their drums quoting that maximum where ever they could. Now that that makes them look terrible they're backpedaling on that but there is enough documentation out there to make this look like what it is: full-on damage control. The Aaron Swartz story is starting to get some serious play in mainstream media and that is something that worries people like Carmen Ortiz more than anything else.
      - anonymouz 14y ago
        Why would those be contradictory? If the prosecution charges a person with X, and the maximum penality for X is, say, 10 years then it seems perfectly reasonable to say that this person faces up to 10 years in prison. In court the prosecution may well argue for, say, a 5 year penality under the given circumstances, and ultimately it's up to the judge.
      - josephlord 14y ago
        The maximum was so high they didn't even need to go near it for the terrifying threats of the > 10:1 ratio. The talk is that the plea would have been 6 months and that at trial they would have asked for 6 years. 12:1 ratio and they can truthfully say that they weren't asking for the maximum. They can't truthfully say that they wouldn't seek the ridiculous though. Likewise she focused on the plea bargain offer of side of 6 months but not on the fact that this would have involved admitting guilt to 13 felonies. For someone with honour who really believed themselves not guilty (at least of serious crime) that could be as much of an issue as 6 months low security detention. For lawyers it seems to be a game and the sentence and number of convictions is the score; unfortunately the victims of the law take it more seriously. Always look at what isn't said not just what is said.
  - blablabla123 14y ago
    +1 for "us common folk"
  - deleted 14y ago
    [deleted]
- droithomme 14y ago
  http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.... > AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million. We can compare this to United States Attorney Carmen Ortiz, who, facing the ruination of her career over her actions, says in this new announcement on Wednesday, "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." This new statement does not align with the documented history of statements made by the DOJ as evidenced in the above link. Perhaps though she is trying to argue that she, as the United States Attorney for the District of Massachusetts, is somehow not part of the United States Attorney's Office for the District of Massachusetts that issued the press release which says "SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million". This would be a difficult argument to make given that the press release itself specifically names U.S. Attorney Ortiz as the person who made the press announcement.
  - deleted 14y ago
    [deleted]
- Kliment 14y ago
  Several others did already, but here is a mirror in case the DOJ decides to take it down http://www.wired.com/images_blogs/threatlevel/2011/07/Swartz-Aaron-PR.pdf http://www.wired.com/images_blogs/threatlevel/2011/07/Swartz...

wickedbass 14y ago

While it is nice that she is passing blame to Congress, if it were only a "6 month low security setting" being discussed, why wouldn't Aaron have been told of this? Why the additional and ultimately 13 felony charges when he was MOST concerned with not being labled a felon. Why hold that 50 year sentence above his head with no HOPE in his own mind because he was left in the dark. "As a parent and sister", would you want your child to be stranded for two years with the full weight of the federal government and their impending punishment upon you hidden behind a dark veil? As a human, I both recognize that she is probably saddened and shocked that he took his life (and probably freaking out bc of the white house petition), but at the same time, it's clear that this shouldn't be allowed to happen, so if it means she loses her job - tough luck.

deleted 14y ago
[deleted]
- panacea 14y ago
  So the charges brought equated to three options: 1) We put you away for the rest of your adult life. 2) You admit that you're a guilty son-ova-bitch and you do a small amount of time with a felony conviction that hangs around your neck forever. 3) ... There is no third option on the table. You don't go to trial on those odds and hope that the system decides in your favour, otherwise, LIFE (gavel drop).
corporalagumbo 14y ago
When cops come across otherwise nice young white guys who believe themselves invulnerable or above the law and are doing stupid, impulsive things, their usual practice is to "scare them straight." So they get tough on them, tell them all of the awful consequences they're in for, put them in a horrible, cramped cell, maybe throw them in with some real nasty characters, and, above all, get their parents involved. It's a form of kindness. If you make them crush their self-confidence and make them feel like shit, they learn their lesson. They lose that blithe self-confidence and begin to realise they have to play by the same rules as everyone else. And then, they will hopefully turn into constructive, positive-minded members of society. The practice varies with the character of the kid, the ugliness of their crime, etc. I'm not saying this is what Ortiz and co were thinking with Aaron necessarily but I wouldn't be surprised if it was an element. Aaron's behaviour was very removed from the situations I'm talking about, so the participants and response was very different. But he sounds like quite an... intense person, so maybe they decided they needed to put a lot of pressure on him to crush his spirit. Of course, usually the kids don't kill themselves - but then usually it's not the justice department slapping them on the wrist. They should have realised that people like Aaron are very fragile. I won't apologise for that. A more delicate touch was required, because this outcome is just awful and a disaster for all parties. A real shame. But I do want to point out that their actions in frightening him were not necessarily without reason. By the way, I have spent a night in a cold concrete cell sobering up and feeling like the world's biggest idiot. My escapade cost me $2700 and a lot of self-respect, and though it was awful at the time I am thankful and realise I learned my lesson very economically. Hearing Aaron's story is really painful.

UnoriginalGuy 14y ago

> and did so reasonably. They still believe that? Sorry but they're unfit for the job. They need to go. There was nothing reasonable about their actions on this case. > a sentence that we would recommend to the judge of six months in a low security setting. Six months in jail for downloading files that were accessible to him? All he did was violate terms of service! Are we going to start arresting under-age Facebook users or gamers that cheat next? Should they get six months too? This statement is just icing on the cake that proves that Ortiz is inappropriate for that job/role.

corporalagumbo 14y ago
http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.html http://www.justice.gov/usao/ma/news/2011/July/SwartzAaronPR.... Downloading four million files, apparently. And if by breaking terms and services you mean illegally distributing protected content and threatening the business model of JSTOR then yes, I suppose that is true.
- jacquesm 14y ago
  > illegally distributing protected content Aaron never did that. He may have been planning that but nobody can say this for a fact.
  - Vivtek 14y ago
    Like Philip Greenspun says, for all we know he wanted to do metaanalysis. There's no evidence at all he planned to distribute the files.
  - RandomComment 14y ago
    Really? Not sure if it is just me but i found the JSTOR.torrent years ago and I always assumed it was from Aaron, the file was big like 35gb, I know there is another branded Aaron torrent floating around somehwere Ah worked it out, someguy did it a while ago, http://thepiratebay.se/torrent/6554331/Papers_from_Philosophical_Transactions_of_the_Royal_Society__fro http://thepiratebay.se/torrent/6554331/Papers_from_Philosoph... and released his version as a tribute to Aaron. Mystery solved.

jacquesm 14y ago

> I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. That's why you assign investigations to independent entities, and that's why butchers aren't allowed to do their own health inspection. Whether it was appropriate or not is not for Carmen Ortiz to say. "The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases." Is in direct conflict with Aaron's lawyer's account of the run up to last Saturday as well as other statements issued earlier, she may come to regret those words if he has documentation to prove his side of the story. Aaron's lawyer claims they were threatening just the opposite if he did not take a guilty plea. In particular: "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." Is a falsifiable claim. I'm looking forward to Aaron's lawyers' response to this statement.

rhizome 14y ago
"...did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases." Scapegoating Congress now, she is truly shameless in invoking the Nuremberg Defense.
- thomasz 14y ago
  Can we please not Godwin this?
  - jychang 14y ago
    Strictly speaking, we haven't Godwin'd this yet.
  - jacquesm 14y ago
    He's not Godwinning this at all. Claiming superior orders is exactly what the Nuremberg defense was all about, it is simply an accurate association. Just because something happened in relation to WWII does not automatically mean that any reference to it invokes Godwin's law, that's for inappropriate comparisons. This one is entirely appropriate as far as I can see.

erichocean 14y ago

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. The absolute dishonesty of this statement has only further convinced me that firing this political appointee to prevent her from further harming citizens is the only appropriate action for our government to take.

blablabla123 14y ago
You have any proof for your statement? This 35 year (or 50 year) thing mentioned in many blogs might be questionable. To be frank I feel myself a bit fooled by this information, reading yesterday that 6 month have been proposed to Swartz. When talking about things as serious as death, we seem to assume that every information is depicted really carefully, but this is far from being true.
- jacquesm 14y ago
  > This 35 year (or 50 year) thing mentioned in many blogs might be questionable. It's not just in blogs, it is also in DOJ press releases attributed to Carmen Ortiz, linked elsewhere in this thread.
  - blablabla123 14y ago
    I wonder where Ars Technica gets their information from... "If convicted on all charges, he could have spent more than 50 years in prison." http://arstechnica.com/tech-policy/2013/01/internet-pioneer-and-information-activist-takes-his-own-life/ http://arstechnica.com/tech-policy/2013/01/internet-pioneer-...
    - sp332 14y ago
      That's up to the judge of course. The DA can make recommendations, but they don't decide what the sentence is.
    - ceol 14y ago
      That's if he was found guilty and given the maximum sentence for all charges, which a lot of people seem to be missing. The key words there being "could have."

thoughtcriminal 14y ago

Prosecutors (and lawyers in general) are all about drama and story. Everything is amplified. Reality is distorted. It's worse than cable television. Ortiz framed a brilliant, selfless young man as a criminal who should be locked up behind bars. She and others inflicted mental torture on him until he couldn't bear to live any longer. She is no doubt a wordsmith, but she is not a nice person, no matter what the gullible fools on HN say. She shouldn't be working with and against people anymore, or for the government. To think that a carefully calculated statement could 'clear the deck' and make everything even-steven is ludicrous.

Udo 14y ago
> no matter what the gullible fools on HN say I agree with you on all the other points, but apparently you haven't been following this thread too closely.
WhaleBiologist 14y ago
>Ortiz framed a brilliant, selfless young man as a criminal who should be locked up behind bars. Law is about drama? There's plenty of drama and hyperbole in your post. He broke the law. Which means he is a criminal. If you think the laws are retarded, then how you protest that is your prerogative. If you choose to protest by blatantly and purposely breaking the law, unless you are 99.999% certain that an obvious interpretation of the law violates the constitution, you should expect to get charged and convicted of breaking said law. Prosecutors aren't hired to be nice, they are hired to represent the state and bring charges against people who violate the state's laws. If you seriously think that he shouldn't be charged with breaking the law because 'he didn't deserve it', 'he did not have malicious intentions' or 'the law is dumb', then by extension no one should be convicted of any crime, because there will always be some point of view where you could think that of anyone.
- keithpeter 14y ago
  "He broke the law. Which means he is a criminal." I've refrained from posting here as I'm in the UK, not my issue &c but I do work with young offenders and adults in retraining &c. 'criminal' is not a 'type' or irrevocable condition. It is a social status that exists in the mind of people and state records, especially in this case with little measureable damage to anything or anyone.

binarymax 14y ago

Before this statement was issued, I didn't think we should be chasing them down to make an example of them[1]. Now that she is dishonest and trying to brush everything aside as 'business as usual', I am changing my stance. She needs to go. Not to make an example of her, but because we should not tolerate such dishonesty and smugness in our federal court system. [1] http://news.ycombinator.com/item?id=5053980 http://news.ycombinator.com/item?id=5053980

krutulis 14y ago
I've had a similar reaction to the Ortiz statement. Its self-aggrandizing tone of righteousness leaves me increasingly offended by her apparent lack of integrity and empathy in the ongoing pursuit of influence and power. This reveals such a striking contrast: Aaron's choices indicate he valued both integrity and empathy very highly.
jskonhovd 14y ago
Completely agree. There's no place for people like her in our society. I hope this kills her career, but I doubt it. Even if he gets fired she still will be corrupting the system in some capacity with her influence. But at least she won't end up with a job like Marsha Blackburn.
- res0nat0r 14y ago
  I think the collective HN IQ has dropped by about 40 points this week with all of these moronic statements. She should get fired for doing exactly what she was put in to office to do? IE: Follow the federal sentencing guidelines like she should? In no way was there ever going to be some 30 year sentence. Six months maximum is not over reach.

huhtenberg 14y ago

Let me just throw something out there. It's obvious that the investigation was a contributing factor to Aaron's decision to take his life, but to what extent? Was this at all investigated by the media, or have everyone just made the connection, because it was the easiest explanation?

erichocean 14y ago
Aaron killed himself two years to the day of this whole ordeal starting. Either that's an incredible coincidence, or Aaron decided to take his life as a political statement. Given his past actions, that's an easy assumption to make. Also, his request for a plea deal was denied in very harsh terms two days before Aaron took his own life, so even knowing just that and the fact that he really did not want to be labeled a felon, it's easy to make the connection. Finally, Aaron's own family, partner and legal representation believe they were related, i.e. those closest to Aaron believe the federal trial was a major cause. Of course, he also had a history of dealing with depression; I don't think anyone's denying that.
- huhtenberg 14y ago
  Thanks for the summary.
icelancer 14y ago
What do you want - an algorithm that says the investigation was 72.3% +/- 5% margin of error responsible for his suicide? There's no way to know, but it's probable that it's a large contributing factor based on what Lessig et al. wrote.

bgmasters 14y ago

> 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 defense counsel would have been free to recommend a sentence of probation. That is terrible writing. Ms. Ortiz should be doubly ashamed.

apl 14y ago
Remarkable, isn't it? That doesn't even qualify as convoluted legalese; that's simply atrocious style.

intended 14y ago

So Ortiz' message is that - this is my job I fight for the law, and I agree that its over the top, but it is what it is. Change the framework and I'll do what it says. The law (edit: and system ) is set up so that a "good prosecutor" would work to prove Aaron was guilty of breaking those laws. The final sentence, which is the responsibility of the Judge would have to take account of everything especially his motivation, to give him an appropriate sentence. "I'm just doing my job, and the final sentencing isn't in my hands" --- Fine - that's her version, and frankly - its exactly as expected. There really are few if any other ways that Ortiz could explain her actions. Strangely its also pretty much the exact defense that the Financial industry has used so far. AKA these are the rules, hate the game not the player. Sometimes people from the outside are required to point out that somethings are obviously morally wrong. Especially when Insiders end up missing it.

jasonzemos 14y ago
There's an old saying that a good prosecutor will convict most guilty men, and a great prosecutor will convict a few innocent ones too. That's how these machines think. She's right only in that congress was stupid enough to give her any form of discretion at all.

pms 14y ago

> "As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible." Protecting? Just like they protect "free knowledge"?

pfortuny 14y ago

There are people along history (and I mean specifically civil servants, like Thomas More -the first that comes to my mind but by no means the only one-) who have even given his life because they did not want to comply with 'the law'... This 'complying with the law' is fedding me up. Someone has already noticed that bankers did also act 'with the law on their part'... And all the rating agencies, they suddendly 'just offer counsel and advice', they are in no way suggesting that a product is fit for buying or selling... Is there a conscience out there?

Yaa101 14y ago
In our opinion not, but the rules are that only money decides the rules. And the rules are that other people are always to blame and that the law, no matter how corrupt, is the law. The problem is that especially these people (civil cervants) are chosen on this fallacy, are only loyal to their families and peers, all others don't exsists or are there to pull a leg out. There is a huge Us vs. Them attitude amongst most people (not all, gladly) serving any government.

gadders 14y ago

It's sad that he committed suicide, but that is not a rational response to 6 months in a low security jail. Conrad Black did 30+ months. Kevin Mitnick did several years. Even Martha Stewart managed 5 months. Also, with his profile and past history, his felony conviction would not seriously impede any career he wanted to undertake. Finally, the whole point of civil disobedience is to break a law, and get caught, punished and make (to a certain extent) a martyr of yourself to draw attention to your cause.

ghshephard 14y ago
Except defending himself would have cost on the order of a million dollars (Per Lessig) - does he go to his family for that? Even if he turns out to be found completely innocent, him, his family, and those who he can turn to would have been wiped out financially. That part of the story doesn't get enough attention.
- jstevens85 14y ago
  If he accepted the plea bargain of six months, then the case wouldn't have gone to trial, avoiding the excessive legal fees. I don't understand the timeline, but had he accepted the plea bargain, is it not possible that he would have already served his sentence by now?
  - BrokenPipe 14y ago
    Maybe. The point is that you shouldn't submit to 6 months of federal prison without trial or appeal, all the money loss for the two years in the case and your life ruined by the felony counts records for using a script to download files you already have legal access to. At worst all there is to this is trespassing, on an open campus on an open network etc etc.
    - mbesto 14y ago
      You're probably right, you shouldn't, but unless you offer up a better suggestion for a law system, it is it what it is.

forrestthewoods 14y ago

"...we would recommend to the judge of six months in a low security setting. ...his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge" Little known fact here. When you accept a plea bargain you do not accept a sentence as part of that. Often times you agree to plea to lesser chargers which have a lower maximum penalty but you still run the risk of being sentenced to the max. There is also the chance the judge will give a longer sentence with enhancements. It's possible you will have not been convicted, tried, or even charged for those enhancements. This has been ruled unconstitutional by the Supreme Court of the United States. However that doesn't stop judges from doing it anyway. When you are crushed, broke, and in jail what are ya gonna do, sue?

pseingatl 14y ago
The plea bargain could have been capped at six months. US Attorneys do this all the time. There is much more that the office can do than just recommend a sentence to the judge. The defense attorneys may not have wanted to run the risk of consecutive sentencing. The probation office could easily have reached the conclusion that the property taken was valued at $5 million based on the FBI affidavit and at that point probation is not permitted under the Guidelines. Supervised release additionally would have prevented any computer use for 2-3 years. The defendant would have gotten low security anyway and that determination is not up to their office or even the sentencing judge--it is a determination made by the US Bureau of Prisons. The statement is misleading in more than one respect.
- waps 14y ago
  However in this case there were damages involved to outside parties - which meant they had to agree to any plea bargain if the US attorney wanted to present that to the judge.
jgeralnik 14y ago
See Jonathan Pollard for example: http://en.wikipedia.org/wiki/Jonathan_Pollard#Sentencing_and_incarceration http://en.wikipedia.org/wiki/Jonathan_Pollard#Sentencing_and...

josephlord 14y ago

Statement Deconstruction STATEMENT OF UNITED STATES ATTORNEY CARMEN M. ORTIZ REGARDING THE DEATH OF AARON SWARTZ As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man.[Sympathy - a good start but no apology.] I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.[Acknowledges anger and public feeling. No comment on their actions.] I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case.[States that they were correct to bring and handle the case. May be read as they handled the case correctly BUT does NOT actually state that.] The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. [Claims the career prosecutors were reasonable. Were all involved 'career prosecutors' or is someone about to be hung out to dry? Alternative reading is that 'career prosecutors' is just trying to make them sound better.] The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. [OK. Then why would they (note Ortiz is not taking responsibility for this judgement) want to seek 7 years if it went to trial] 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. [not stated also admission of 13 felonies or that if he wanted a trial because he believed himself not guilty the appropriate sentence to seek would have been 7 years. Thats what you get for believing you have a right to a trial and not just doing what we say.] While at the same time, his defense counsel would have been free to recommend a sentence of probation. [Not stated: for 13 admitted felonies.] Ultimately, any sentence imposed would have been up to the judge. [Not our responsibility really.] 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. [We were really generous and told Mr. Swartz's attourneys that we intended to seek something between the maximum and ten times what was appropriate (by our admission) if he didn't plead guilty] As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. [Sounds reasonable but does it match their actions?] We strive to do our best to fulfill this mission every day.[But we aren't commenting on the rest of our mission or how we have done matching this mission in this case.]

davemel37 14y ago

"Under my coat is a weary heart, but a kind one-one that could do nobody harm." -notorious murderer two gun Crowley Unless you can improve on the silence, don't open your mouth... Before this statement I had hopes Ortiz had regrets...Now I know she doesn't...where did I leave my pitchfork?

vijayr 14y ago
Unless you can improve on the silence, don't open your mouth... Well said

barking 14y ago

Isn't this just the way these things are done in the US? America has an adversarial system of justice. It also has a plea bargaining system. Don't those two together naturally lead to situations where each side will threaten their worst in an effort to gain the best bargain they can from the other?

pseingatl 14y ago

I agree that the "Statement" is misleading. If Ortiz really believed that a Guidelines sentence was inappropriate they could have offered a capped sentence of six months or stipulated to a lower financial valuation of the stolen documents to bring down the Guideline. Neither was done. A prosecutor's recommendation is useful, but it is not binding on the Court. They did not agree to dismiss the other counts of the indictment, and while this would not affect the Guidelines, the sentencing judge could decide to impose sentences consecutively. Swartz would have been without computer access during a two to three year term of supervised release as well. If Ortiz really believed what she wrote in her Statement her office would have limited Swartz' criminal exposure to six months. US Attorneys' offices do this all the time. Hers did not. Her statement is misleading. The cover-up is always worse than the crime and this Statement only makes me wonder what else is out there. She should resign.

OGinparadise 14y ago

"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....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." Yeah, and you added another 9 felonies after he refused the felon label to help him out.

BrokenPipe 14y ago
You know, to make it easier for him to take a decision. Such a nice gesture.

bane 14y ago

She forgot to say "allegedly".

silentmars 14y ago

As damage control goes, Ortiz's statement is inadequate. There is a well-supported petition calling her out by name to be fired. There are major media outlets openly questioning not only her actions, but the fitness of the entire Justice Department to act appropriately. Not one or two media outlets, but dozens. The situation seems very serious indeed. This is the bloodless, half-assed kind of statement she makes in response? I don't get it.

arbuge 14y ago

I think this release is worded disingenuously. My understanding of this case is that the 6 month offer was only part of the plea deal the prosecutors held out if Aaron didn't go to trial. If he exercised his right to due process and went to trial, he did indeed risk the full 35 year penalty and no such sentence recommendation was on offer. This is typical of many prosecutors in the US, unfortunately, who attempt to terrorize defendants into accepting their plea deals. It's not much different than the way torture was used in the Middle Ages to extract confessions and secure convictions. It's pretty sad to see a press release that attempts to obfuscate the truth like this.

offshoreguy19 14y ago

I know from personal experience that the US Attorney's Office always states in their press releases the maximum penalty possible that the defendant is facing. Each charge has a maximum number of years and they state the number of possible consecutive years possible. Had Aaron Swartz been found guilty, there is no way he was going to face the maximum penalty. There is a high probability that the penalties associated with the charges would have been run concurrently. Once found guilty, US Probation writes a Pre-Sentencing Report which calculates the time the defendant is facing. This calculation is based upon numerous details, including but not limited to actual damages, criminal history, and offense level with points that range from from 1 to 43. If a defendant agrees with the government that he or she is guilty and pleads accordingly, he or she will generally get fewer points for offense level. If a defendant contests the charges and exercises his or her constitutional right to have his or her case heard by a jury and is found guilty, US Probation will increase the number of points. (Imagine that. The government gives you more prison time for exercising your right to a trial under the Constitution). The more points calculated, the more time a defendant is facing. Good time is applied to a sentence by the federal prison. An inmate is supposed to do 85% of their time if he or she has no infractions, but since the federal prison system has an interest in keeping people imprisoned, the bureaucracy has found a way to deliberately mis-read the good time statute and apply it in a way so that a defendant actually does 86.2% of their time. A sentence of one year or less will not have good time applied. Anything above one year and the good time calculation is applied. The biggest risk in taking a case to trial are the members of the jury. The government educational system has done a great job of dumbing people down so that they follow the government's bidding. ie., "If he's on trial, he must be guilty." Few people actually think for themselves and question what is told to them by an authority figure.

jijji 14y ago

one less court date on her calendar.

ameen 14y ago

> Our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. What were they protecting them against? That Knowledge might've been spread to those who hadn't the monetary resources to read a bunch of Journals? Also, I don't think the law was enforced fairly and responsibly, and it was the exact opposite of what occurred -- A bunch of overzealous prosecutors at the helm pushing for a maximum sentence for civil disobedience.

tlrobinson 14y ago

" Ultimately, any sentence imposed would have been up to the judge. 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." I'm guessing this is a very carefully worded statement.

mycodebreaks 14y ago

Typical lawyer talk. These people are good with words and can talk their way out.

logn 14y ago

What I find really sad about all of this is that it took a suicide for all of this news and outrage to surface. It's understandable but it's depressing. I think some people (not saying Swartz) considering suicide think, I'll show them, or this will make them sorry. This sort of supports that. In Swartz's case the sad thing is he probably never expected this outpouring of support. To him it probably seemed as if the world either didn't care or didn't support him. Just read the old HN post he made for legal fund donations. It's unfortunate he can't realize how most people are on his side.

jacquesm 14y ago
Most people weren't on his side because the most harsh details of the case were not easily visible to those not directly involved with the case. If that had been different I think a lot more people would have support Aaron earlier.

sever 14y ago

"somehow led to the tragic result of him taking his own life" That "somehow" word really rings wrong with me. It is not that hard to understand how being under a federal indictment would contribute to depression and even eventually suicide.

kunai 14y ago

Ortiz is simply trying to undo the damage she has already done. Well, Ortiz, lemme tell ya sumthin' -- it ain't gonna work. First of all, the statement reeks of PR tinkering. When every single source points to Ortiz and her cronies pursuing maximum sentences and intimidating Swartz, she comes out with a sorry excuse of an apology that denies it. Also, the 6 months plea deal would be only under one condition, and that is if Swartz acknowledged everything that the gubmint charged him with, which was still a major tarnish to his rep. So what did Swartz do? He had integrity and stood up for what he believed in, and then Ortiz pushed on with defiance. I recommend watching this YouTube video -- seems like Swartz' position is eerily similar to the other protagonist's (and if you haven't watched the movie, you simply must): http://www.youtube.com/watch?v=TKAxnB6Ap4o http://www.youtube.com/watch?v=TKAxnB6Ap4o If only Aaron had Al Pacino standing up for him... By the way, this isn't the first time Ortiz has been a major pain in the neck. A quick Google for "Tarek Mehanna" should be enough to affirm the opinion that Ortiz is a tyrant.

jack-r-abbit 14y ago

So maybe people don't realize but there is a chart that is used for determining possible sentence for any given set of charges. I have seen this work sheet in process. The charges are listed. And there is a book (or document or something like that.. I forget) that explains the max jail time and fine for all these charges. and then there are "special circumstances" for some charges that can add on to the sentence. So if you have a list of 10 charges and you go through each one and examine the special circumstances and tally the whole thing up... you get you maximum (potential) sentence. That does not mean that is what will be sought. That does not mean that is what you will get. That just means that is the max you face.

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BenoitEssiambre 14y ago

Incredible: Post by Aaron Swartz describes exactly his prosecutor's reaction. http://www.aaronsw.com/weblog/semmelweis http://www.aaronsw.com/weblog/semmelweis

tibbon 14y ago

Regardless of time served, do federal prosecutors not realize what the scarlet letter of a FELONY carved on your chest does to your ability to lead a normal life? Coupled with occasionally absurd bans from using/owning a computer or similar device for years (see: Kevin Mitnick) for anyone seen as a 'hacker', this absolutely destroys a person's life. I can't imagine how hard finding an apartment in SF (already hard) becomes if you have to disclose that you're a convicted felon with time spent.

nodata 14y ago

"I haven't bothered to mention the whole sad Aaron Swartz saga, because it's been covered elsewhere. But having the involved US attorney then basically lie about it all in a very public statement is something that I find particularly offensive." -- Linus Torvalds, https://plus.google.com/102150693225130002912/posts/ggzfzKyrcRQ https://plus.google.com/102150693225130002912/posts/ggzfzKyr...

lotso 14y ago
From his Google+ post "Yesterday (as reported by the Wall Street Journal and elsewhere): "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." And July 2011 (as posted by justice.gov itself): "SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million"" Stating that a person faces x amount of years is not the same as saying we are seeking to put you in jail for this many years. Correct me if I am wrong, but this is how anyone who allegedly broke the law would be treated. The law you broke states you can face up to x, y, and z for breaking it, but hardly anyone gets that maximum sentencing. Hell, even murderers rarely get the maximum sentencing.

mildavw 14y ago

"six months in a low security setting." That one word, "setting," puts her squarely in bullshitter territory. The obvious and honest word is "prison". But that's too dark a color for the painting she's holding up for us.

accountswu 14y ago

From a comment on wsj: Please email the US Attorneys and tell them how you feel: carmen.ortiz _AT_ usdoj.gov and stephen.heymann _AT_ usdoj.gov

seanp2k2 14y ago

Did anyone seriously expect an apology? This is disappointing, but not really surprising. This quote esp. got me: "I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case." Strongly disagree, and I hope the docs come out to prove against this point and burn them.

mchusma 14y ago

"while a violation of the law" I have noticed that government agents are relatively quick to assign blame when there has been no conviction. The charges were filed & ultimately dropped, so there has been no determination by the government that this was a violation of the law. I've been a victim of this myself. When launching the first online notary service, the CA secretary of state published an erroneous notice that we had committed a crime. When we spoke with their office, they indicated that there was no evidence of any crime. It ultimately took 2 years, and the threat of a lawsuit, to remove the false statements.