6 ms·

Linus isn't wrong. She made two directly conflicting statements in press releases, which is what he pointed out. The first, which she made at the outset of th

Linus isn't wrong. She made two directly conflicting statements in press releases, which is what he pointed out. The first, which she made at the outset of the case, was that he was facing 35 years if convicted at trial. They make statements like this in order to foster plea discussions, which resulted in the 4-6 month offer she mentioned in the second statement. While this would be considered extortion in any other context, this is entirely legal under current law and forms the basis for our entire "justice" system. In addition, no mention has been made of possible post-release restrictions that the US Attorney's office may have insisted on, but there is a very real possibility that the judge could have barred him from using a computer or the Internet during the mandatory 3-5 year supervised release period. Federal judges are free to implement any supervised release conditions they wish, and if violated the defendant can face significant additional prison time - up to the length of the supervised release (3-5 years). I didn't know Aaron, but I suspect that this fact may have weighed more heavily on his mind than the incarceration time itself. Four months on a federal case doesn't end after four months.

gojomo 14y ago
In the weaselly shades of English used by lawyers and politicians, the two statements highlighted by Torvalds do not necessarily contradict one another. The older statement accurately describes the maximums the law allows, and was used when that was the emphasis. (At the time, the DoJ probably didn't know themselves what sort of sentence they'd ask for, so the only informative and unfalsifiable thing to put in a PR statement would be the statutory ranges: "faces up to".) It didn't necessarily imply the prosecutors were seeking or ever would seek that penalty. Even if the prosecutors kept mentioning the maximums, over and over, whenever the opportunity arose, unless they also specifically said they would ask for the maximum, the finely-crafted later statement from Ortiz isn't necessarily contradicted. Reminding of the maximums, to the accused and jury, could be an effective 'framing' rhetorical strategy to help make actual proposals of less (in negotiations or later motions) seem more reasonable or generous. None of this excuses the law itself or overall prosecutor conduct. But we still should read their statements fairly, aware they contain self-serving spin, but also recognizing the precise things they do and don't claim via their word choices.
- downandout 14y ago
  I expect that any criminal defendant, including Aaron, would read her initial statement as "they're going to put me in prison for 35 years". Even as plea negotiations went forward, the implication was "plead this out or you will get 35 years". She made statements that only a lawyer could love - rife with plausible deniability for any responsibility they have in this mess. However, I think any reasonable person would agree with Linus's interpretation of the two statements.
  - kelnos 14y ago
    I consider myself a reasonable person and do not agree with Linus's interpretation.
  - stef25 14y ago
    It was not at all realistic to think a 35 year sentence would have been handed down for downloading scientific papers, even in America. He was an extremely talented rich white kid, associated with a top university who would have had dozens of high profiles vouching for him in court. I guess his lawyer did a terrible job of telling him not to worry.
    - jacquesm 14y ago
      You really should read up a bit on this. His three lawyers all failed to reach a conclusion to the case that did not include jail time, possibly greatly increased during the actual sentencing (true, the latter was a small chance but a chance anyway). source: http://www.bostonglobe.com/metro/2013/01/15/humanity-deficit/bj8oThPDwzgxBSHQt3tyKI/story.html http://www.bostonglobe.com/metro/2013/01/15/humanity-deficit...
      - mpyne 14y ago
        You should read up on this too then. His lawyers did manage to extract a plea deal with no jail time, but then MIT wouldn't sign off on it. Let's be specific, are you trying to claim that Aaron stood a small chance at actually be sentenced to 35 years, or are you just talking about jail time at all?
jahewson 14y ago
> they make statements like this in order to fosterlea discussions Not publicly they don't. It's a press release for the media, and it's a statement of fact - the judge is free to sentence up to 35 years regardless. You can hardly expect this press release to contain the private details of an ongoing attempt to agree to a plea bargain.
zokier 14y ago
> The first, which she made at the outset of the case, was that he was facing 35 years if convicted at trial. No, that was not what she said. She said that he could be facing up to 35 years. In other words 35 years would be the maximum penalty. There is no implication that she was seeking the maximum penalty at any time.
- lloeki 14y ago
  Said once, of course. Regularly repeated though, it is a scare tactic to push for a settlement, with "up to" merely acting as a plausible deniability device. Being prosecuted is psychologically exhausting, and such tactics introduce lingering thoughts weakening one's mind even more.
  - zokier 14y ago
    Her reasons behind the word choices may have been nefarious (although I hardly believe that either). But she didn't lie or contradict herself, which is what Linus is claiming.
    - mpyne 14y ago
      It's not even nefarious. What else is she supposed to say about the sentence when charges are initially filed? She can't say what a judge will do. She can't say what sentence the defense team might argue for. She can't even necessarily give a formal pronouncement of what she might argue for as that could tamper with negotiations between the prosecution and defense attorneys! The only factual statement you can make about the charges when they're filed to give an impression of the seriousness is the statutory maximum, so-and-so can face up to X years in prison based on these charges. I swear it sounds like a lot of the people here are either blissfully unaware of legal cases in general or are deliberately being hyperbolic now that it suits them. The former you can blame on ignorance I suppose, but the latter is disgusting.
- roc 14y ago
  She identified the maximum the same way a protection racket says "It'd be a shame if anything happened to this nice business you've got here". They never actually say they're going to make 'something' happen if you don't deal. But everyone knows that is exactly what they mean. It's no different for the prosecutors. Stating the maximums in a case that clearly does not compel the maximums is an intentional negotiating tactic that amounts to intimidation. It quite clearly and obviously means "I will use the threat of the worst-case-scenario, in negotiations, to wring every last month of term and dollar of penalty out of you." And that implicitly indicates the prosecutors were gunning for Swartz.

gojomo 14y ago

In the weaselly shades of English used by lawyers and politicians, the two statements highlighted by Torvalds do not necessarily contradict one another. The older statement accurately describes the maximums the law allows, and was used when that was the emphasis. (At the time, the DoJ probably didn't know themselves what sort of sentence they'd ask for, so the only informative and unfalsifiable thing to put in a PR statement would be the statutory ranges: "faces up to".) It didn't necessarily imply the prosecutors were seeking or ever would seek that penalty. Even if the prosecutors kept mentioning the maximums, over and over, whenever the opportunity arose, unless they also specifically said they would ask for the maximum, the finely-crafted later statement from Ortiz isn't necessarily contradicted. Reminding of the maximums, to the accused and jury, could be an effective 'framing' rhetorical strategy to help make actual proposals of less (in negotiations or later motions) seem more reasonable or generous. None of this excuses the law itself or overall prosecutor conduct. But we still should read their statements fairly, aware they contain self-serving spin, but also recognizing the precise things they do and don't claim via their word choices.

downandout 14y ago
I expect that any criminal defendant, including Aaron, would read her initial statement as "they're going to put me in prison for 35 years". Even as plea negotiations went forward, the implication was "plead this out or you will get 35 years". She made statements that only a lawyer could love - rife with plausible deniability for any responsibility they have in this mess. However, I think any reasonable person would agree with Linus's interpretation of the two statements.
- kelnos 14y ago
  I consider myself a reasonable person and do not agree with Linus's interpretation.
- stef25 14y ago
  It was not at all realistic to think a 35 year sentence would have been handed down for downloading scientific papers, even in America. He was an extremely talented rich white kid, associated with a top university who would have had dozens of high profiles vouching for him in court. I guess his lawyer did a terrible job of telling him not to worry.
  - jacquesm 14y ago
    You really should read up a bit on this. His three lawyers all failed to reach a conclusion to the case that did not include jail time, possibly greatly increased during the actual sentencing (true, the latter was a small chance but a chance anyway). source: http://www.bostonglobe.com/metro/2013/01/15/humanity-deficit/bj8oThPDwzgxBSHQt3tyKI/story.html http://www.bostonglobe.com/metro/2013/01/15/humanity-deficit...
    - mpyne 14y ago
      You should read up on this too then. His lawyers did manage to extract a plea deal with no jail time, but then MIT wouldn't sign off on it. Let's be specific, are you trying to claim that Aaron stood a small chance at actually be sentenced to 35 years, or are you just talking about jail time at all?

jahewson 14y ago

> they make statements like this in order to fosterlea discussions Not publicly they don't. It's a press release for the media, and it's a statement of fact - the judge is free to sentence up to 35 years regardless. You can hardly expect this press release to contain the private details of an ongoing attempt to agree to a plea bargain.

zokier 14y ago

> The first, which she made at the outset of the case, was that he was facing 35 years if convicted at trial. No, that was not what she said. She said that he could be facing up to 35 years. In other words 35 years would be the maximum penalty. There is no implication that she was seeking the maximum penalty at any time.

lloeki 14y ago
Said once, of course. Regularly repeated though, it is a scare tactic to push for a settlement, with "up to" merely acting as a plausible deniability device. Being prosecuted is psychologically exhausting, and such tactics introduce lingering thoughts weakening one's mind even more.
- zokier 14y ago
  Her reasons behind the word choices may have been nefarious (although I hardly believe that either). But she didn't lie or contradict herself, which is what Linus is claiming.
  - mpyne 14y ago
    It's not even nefarious. What else is she supposed to say about the sentence when charges are initially filed? She can't say what a judge will do. She can't say what sentence the defense team might argue for. She can't even necessarily give a formal pronouncement of what she might argue for as that could tamper with negotiations between the prosecution and defense attorneys! The only factual statement you can make about the charges when they're filed to give an impression of the seriousness is the statutory maximum, so-and-so can face up to X years in prison based on these charges. I swear it sounds like a lot of the people here are either blissfully unaware of legal cases in general or are deliberately being hyperbolic now that it suits them. The former you can blame on ignorance I suppose, but the latter is disgusting.
roc 14y ago
She identified the maximum the same way a protection racket says "It'd be a shame if anything happened to this nice business you've got here". They never actually say they're going to make 'something' happen if you don't deal. But everyone knows that is exactly what they mean. It's no different for the prosecutors. Stating the maximums in a case that clearly does not compel the maximums is an intentional negotiating tactic that amounts to intimidation. It quite clearly and obviously means "I will use the threat of the worst-case-scenario, in negotiations, to wring every last month of term and dollar of penalty out of you." And that implicitly indicates the prosecutors were gunning for Swartz.