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In the weaselly shades of English used by lawyers and politicians, the two statements highlighted by Torvalds do not necessarily contradict one another. The old

by 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?
      - jacquesm 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. and so they didn't.. I predict that this will be the main area of interest when Abelson's report comes out. Why did MIT insist on jailtime? > Let's be specific, are you trying to claim that Aaron stood a small chance at actually be sentenced to 35 years, No. > or are you just talking about jail time at all? Yes.
      - defen 14y ago
        To what extent is it true to say "SWARTZ faces up to 35 years in prison" if there is a 0% chance he'll face that penalty? Wouldn't it be more accurate to say "his alleged crimes are punishable by up to 35 years in prison"? Or was there actually a small but non-zero chance he'd face 35 years? By analogy, imagine a 3-strikes state where the 3rd strike results in life imprisonment. If someone is accused of committing their first felony, is it accurate to say "he faces up to life in prison" when that is not possible given his lack of criminal history?
    - tedunangst 14y ago
- intended 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". This is pretty much the reason they say "get a lawyer", and let them work at it. The field does require a lot of effort and education to get proficient in. Programmers get annoyed when someone tells them "just code this brilliant idea up and we will be rich". This is similar.
- da3da 14y ago
  This is why you get a lawyer. So they can explain that almost no one gets anything close to the maximum sentence. See this post for more information http://www.volokh.com/2013/01/16/the-criminal-charges-against-aaron-swartz-part-2-prosecutorial-discretion/ http://www.volokh.com/2013/01/16/the-criminal-charges-agains...
- tveita 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". Absolutely not. I've been shocked to see how many geeks - including Linus, do not seem to understand the concept of maximum penalties. This is not an obscure lawyer technicality, this something you see in the papers every day. Journalists like to quote the "up to" numbers because they sound dramatic, and as a functioning member of society you need to know what that means and doesn't mean. Maximum penalties set an upper bound on sentencing based on the crimes you are charged with, to prevent abuses. The high maximum penalties in this case probably means the laws are overly broad, but say very little about what the actual sentence will be. Moreover, I do not think the items he was charged have a minimum sentence - he could have been found guilty, and still gotten off with a slap on the wrist.
  - sixothree 14y ago
    It sounds as if you're implying that it is not possible for him to have been found guilty and have gotten the maximum penalty?
  - detst 14y ago
    > I've been shocked to see how many geeks - including Linus, do not seem to understand the concept of maximum penalties. And I'm shocked to see how many people misinterpret those geeks. We don't believe he was absolutely going to end up in jail for 35 years; we believe it was hung over his head to extort a plea deal, while remaining a real possibility. > Journalists like to quote the "up to" numbers because they sound dramatic, and as a functioning member of society you need to know what that means and doesn't mean. We're not talking about the concept; we get that. We're talking about a prosecutor that had large discretion in which, if any, charges to bring and brought multiple charges that had high maximum penalties for a reason. It's disingenuous to come back later and try to downplay the real charges with the real prospect of 35 years in jail, even if its real purpose was extortion. It's easy to say "you need to know what that means and doesn't mean" until you're the one actually facing those penalties and financial ruin. I'm sure reminding you how the game works will be very comforting.
    - 14y ago
- tedunangst 14y ago
  Why would you believe a press release from somebody's office over something they said in person?
rhizome 14y ago
It's not uncommon for Judges to reject prosecutor's sentencing recommendations in favor of harsher penalties. http://www.legalinfo.com/legal-news/judge-exceeds-prosecutors-request-in-sentencing-ponzi-perpetrator.html http://www.legalinfo.com/legal-news/judge-exceeds-prosecutor... http://www.cadillacnews.com/news_story/?story_id=1806284&year=2013&issue=20130115 http://www.cadillacnews.com/news_story/?story_id=1806284&#38... Michael Vick experienced this: http://sportsillustrated.cnn.com/2007/writers/michael_mccann/12/10/vick/index.html http://sportsillustrated.cnn.com/2007/writers/michael_mccann... Judges don't have to respect plea agreements or prosecutor's promises to the defendant: http://criminal.lawyers.com/Criminal-Law-Basics/Plea-Bargains-or-Agreements-and-Sentencing.html http://criminal.lawyers.com/Criminal-Law-Basics/Plea-Bargain... Reading their words "fairly" is to read them as they appear on the page. If you want to give them the benefit of their vaguery, then we can equally reasonably interpret their words as if they describe the greatest risk at hand. After all, you want one side of the vagueness fence to say "hey, technically they weren't saying anything," while the other side of that same fence is "wow, look at the sum-total of their words and the threat they describe." Both interpretations are valid, you're just favoring the legalistic over the layman's.
- jacquesm 14y ago
  > Both interpretations are valid, you're just favoring the legalistic over the layman's. 100% agreed, unfortunately this will likely be decided in the legal arena, not in a public forum. The damage done to Ortiz' career is to some extent determined in the public eye and in that sense maybe Linus' statements help. At least he spoke out, he might have weighed his words better by pointing out that Ortiz has possibly technically spoken the truth but on a moral level is completely bankrupt.
  - PoliticsJunkie 14y ago
    sounds like Nazis defence in Norymberg to me. Technically, they just followed the orders (law)... makes me sick.
- mpyne 14y ago
  > Judges don't have to respect plea agreements or prosecutor's promises to the defendant This is only up to a certain point though. Plea bargains can be made conditional on the sentence not exceeding a certain limit.

by gojomo 14y ago

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?
    - jacquesm 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. and so they didn't.. I predict that this will be the main area of interest when Abelson's report comes out. Why did MIT insist on jailtime? > Let's be specific, are you trying to claim that Aaron stood a small chance at actually be sentenced to 35 years, No. > or are you just talking about jail time at all? Yes.
    - defen 14y ago
      To what extent is it true to say "SWARTZ faces up to 35 years in prison" if there is a 0% chance he'll face that penalty? Wouldn't it be more accurate to say "his alleged crimes are punishable by up to 35 years in prison"? Or was there actually a small but non-zero chance he'd face 35 years? By analogy, imagine a 3-strikes state where the 3rd strike results in life imprisonment. If someone is accused of committing their first felony, is it accurate to say "he faces up to life in prison" when that is not possible given his lack of criminal history?
  - tedunangst 14y ago
intended 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". This is pretty much the reason they say "get a lawyer", and let them work at it. The field does require a lot of effort and education to get proficient in. Programmers get annoyed when someone tells them "just code this brilliant idea up and we will be rich". This is similar.
da3da 14y ago
This is why you get a lawyer. So they can explain that almost no one gets anything close to the maximum sentence. See this post for more information http://www.volokh.com/2013/01/16/the-criminal-charges-against-aaron-swartz-part-2-prosecutorial-discretion/ http://www.volokh.com/2013/01/16/the-criminal-charges-agains...
tveita 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". Absolutely not. I've been shocked to see how many geeks - including Linus, do not seem to understand the concept of maximum penalties. This is not an obscure lawyer technicality, this something you see in the papers every day. Journalists like to quote the "up to" numbers because they sound dramatic, and as a functioning member of society you need to know what that means and doesn't mean. Maximum penalties set an upper bound on sentencing based on the crimes you are charged with, to prevent abuses. The high maximum penalties in this case probably means the laws are overly broad, but say very little about what the actual sentence will be. Moreover, I do not think the items he was charged have a minimum sentence - he could have been found guilty, and still gotten off with a slap on the wrist.
- sixothree 14y ago
  It sounds as if you're implying that it is not possible for him to have been found guilty and have gotten the maximum penalty?
- detst 14y ago
  > I've been shocked to see how many geeks - including Linus, do not seem to understand the concept of maximum penalties. And I'm shocked to see how many people misinterpret those geeks. We don't believe he was absolutely going to end up in jail for 35 years; we believe it was hung over his head to extort a plea deal, while remaining a real possibility. > Journalists like to quote the "up to" numbers because they sound dramatic, and as a functioning member of society you need to know what that means and doesn't mean. We're not talking about the concept; we get that. We're talking about a prosecutor that had large discretion in which, if any, charges to bring and brought multiple charges that had high maximum penalties for a reason. It's disingenuous to come back later and try to downplay the real charges with the real prospect of 35 years in jail, even if its real purpose was extortion. It's easy to say "you need to know what that means and doesn't mean" until you're the one actually facing those penalties and financial ruin. I'm sure reminding you how the game works will be very comforting.
  - 14y ago
tedunangst 14y ago
Why would you believe a press release from somebody's office over something they said in person?

rhizome 14y ago

It's not uncommon for Judges to reject prosecutor's sentencing recommendations in favor of harsher penalties. http://www.legalinfo.com/legal-news/judge-exceeds-prosecutors-request-in-sentencing-ponzi-perpetrator.html http://www.legalinfo.com/legal-news/judge-exceeds-prosecutor... http://www.cadillacnews.com/news_story/?story_id=1806284&year=2013&issue=20130115 http://www.cadillacnews.com/news_story/?story_id=1806284&#38... Michael Vick experienced this: http://sportsillustrated.cnn.com/2007/writers/michael_mccann/12/10/vick/index.html http://sportsillustrated.cnn.com/2007/writers/michael_mccann... Judges don't have to respect plea agreements or prosecutor's promises to the defendant: http://criminal.lawyers.com/Criminal-Law-Basics/Plea-Bargains-or-Agreements-and-Sentencing.html http://criminal.lawyers.com/Criminal-Law-Basics/Plea-Bargain... Reading their words "fairly" is to read them as they appear on the page. If you want to give them the benefit of their vaguery, then we can equally reasonably interpret their words as if they describe the greatest risk at hand. After all, you want one side of the vagueness fence to say "hey, technically they weren't saying anything," while the other side of that same fence is "wow, look at the sum-total of their words and the threat they describe." Both interpretations are valid, you're just favoring the legalistic over the layman's.

jacquesm 14y ago
> Both interpretations are valid, you're just favoring the legalistic over the layman's. 100% agreed, unfortunately this will likely be decided in the legal arena, not in a public forum. The damage done to Ortiz' career is to some extent determined in the public eye and in that sense maybe Linus' statements help. At least he spoke out, he might have weighed his words better by pointing out that Ortiz has possibly technically spoken the truth but on a moral level is completely bankrupt.
- PoliticsJunkie 14y ago
  sounds like Nazis defence in Norymberg to me. Technically, they just followed the orders (law)... makes me sick.
mpyne 14y ago
> Judges don't have to respect plea agreements or prosecutor's promises to the defendant This is only up to a certain point though. Plea bargains can be made conditional on the sentence not exceeding a certain limit.