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> The thing they were really trying to do was not have the trial, which is something I would expect them to do given the structure of the legal system. So basi

by ahna 14y ago

> The thing they were really trying to do was not have the trial, which is something I would expect them to do given the structure of the legal system. So basically, charge someone with something ridiculous, and then be offer a sweet sweet deal, such as "only 6 months jail time and confess to 15 felonies. Oh and if you want to go trial it will cost you and your family years of drama, all your savings, and risk 50 years in prison". How nice of them! Let's suppose someone offers you this deal. Does it even matter if you're innocent? Your life is going to be messed up either way. Maybe you cave under pressure and take the deal. How is that furthering the cause of justice? Oh, and in theory, there's this little thing in the US called the Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence"

mpyne 14y ago
> So basically, charge someone with something ridiculous, and then be offer a sweet sweet deal, such as "only 6 months jail time and confess to 15 felonies. Oh and if you want to go trial it will cost you and your family years of drama, all your savings, and risk 50 years in prison". The charges weren't ridiculous. If Aaron wanted to avoid the trial he could simply have avoided repeatedly breaking into MIT's open network to access JSTOR. The charges (even the amended ones) were approved by a grand jury. The prosecutors were never pushing for 50 years in prison. See, this is all part of what I complained about in my other comment about prevarication. But either way, the point is kind of moot. Aaron chose to be in that situation, they didn't change the legal code just to suit him. Taking the plea would have been the smart thing but he was never under any obligation, as the sentence he would get in a jury trial would be based on the Federal sentencing guidelines (and his expensive attorneys could tell him that too). Regarding the Sixth Amendment, plea bargaining is one of the tools used to ensure that those who do need jury trials have a chance at getting them expeditiously (or do you really think that Google really has a 5GB hard disk partition sets aside for everyone with a GMail account?).
- jhart3333 14y ago
  > The charges weren't ridiculous They were according to a retired federal judge: http://www.wbur.org/2013/01/16/gertner-criticizes-ortiz-swartz http://www.wbur.org/2013/01/16/gertner-criticizes-ortiz-swar... from the article: "She says she was troubled by much of what she learned and saw from the bench before leaving in 2011. And she says Ortiz should not have prosecuted Swartz." ... When asked if she was referring to the bad judgement of Carmen Ortiz, Gertner responded, “That’s right.”
  - mpyne 14y ago
    Oh look, I can find a convenient mouth piece too (one who has defended a famous CFAA case, no less): http://www.volokh.com/2013/01/14/aaron-swartz-charges/ http://www.volokh.com/2013/01/14/aaron-swartz-charges/ 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... You might instead argue that the law is ridiculous (e.g. I would agree that Swartz's conduct is not serious enough to warrant a felony conviction). You might argue that there were certainly other cases which were more deserving of a U.S. prosecuting attorney's time (though I don't know how we would confirm or refute that). But the charges themselves are well supported by the indictment.
    - jhart3333 14y ago
      Ad Hominem. You might try responding to the statements she made. For a retired judge to step into the public arena like this is quite out of the ordinary and it indicates to me that the behavior she witnessed in Ortiz was so egregious that extraordinary measures were called for. So much for business as usual, happens all the time, nothing to see here, move along, move along..
      - mpyne 14y ago
        Appeal to authority. I at least bothered to respond with arguments at all (both mine and links to Olin Kerr's), and I did so without reciting high school debate knowledge under the assumption that HN readers are smart enough to figure out the difference between debating tactics and logical argument. You have responded with a doubling-down of the appeal to authority, as if it would really be that unusual for a judge interested in a case which has lit the Internet and media on fire for a whole week now to get her name out there as well. In fact, the very article you linked calls it a "chorus of criticism". Oh, and a couple of clichés. On the other hand, I did respond to the opinion you linked in by linking in other opinions. Yay, opinion war, go me. I will say thanks for the article though, as even your talking head confirms that the 35-year sentence was never going to happen (and by extension, the 50-year sentence I must assume).

by ahna 14y ago

mpyne 14y ago

> So basically, charge someone with something ridiculous, and then be offer a sweet sweet deal, such as "only 6 months jail time and confess to 15 felonies. Oh and if you want to go trial it will cost you and your family years of drama, all your savings, and risk 50 years in prison". The charges weren't ridiculous. If Aaron wanted to avoid the trial he could simply have avoided repeatedly breaking into MIT's open network to access JSTOR. The charges (even the amended ones) were approved by a grand jury. The prosecutors were never pushing for 50 years in prison. See, this is all part of what I complained about in my other comment about prevarication. But either way, the point is kind of moot. Aaron chose to be in that situation, they didn't change the legal code just to suit him. Taking the plea would have been the smart thing but he was never under any obligation, as the sentence he would get in a jury trial would be based on the Federal sentencing guidelines (and his expensive attorneys could tell him that too). Regarding the Sixth Amendment, plea bargaining is one of the tools used to ensure that those who do need jury trials have a chance at getting them expeditiously (or do you really think that Google really has a 5GB hard disk partition sets aside for everyone with a GMail account?).

jhart3333 14y ago
> The charges weren't ridiculous They were according to a retired federal judge: http://www.wbur.org/2013/01/16/gertner-criticizes-ortiz-swartz http://www.wbur.org/2013/01/16/gertner-criticizes-ortiz-swar... from the article: "She says she was troubled by much of what she learned and saw from the bench before leaving in 2011. And she says Ortiz should not have prosecuted Swartz." ... When asked if she was referring to the bad judgement of Carmen Ortiz, Gertner responded, “That’s right.”
- mpyne 14y ago
  Oh look, I can find a convenient mouth piece too (one who has defended a famous CFAA case, no less): http://www.volokh.com/2013/01/14/aaron-swartz-charges/ http://www.volokh.com/2013/01/14/aaron-swartz-charges/ 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... You might instead argue that the law is ridiculous (e.g. I would agree that Swartz's conduct is not serious enough to warrant a felony conviction). You might argue that there were certainly other cases which were more deserving of a U.S. prosecuting attorney's time (though I don't know how we would confirm or refute that). But the charges themselves are well supported by the indictment.
  - jhart3333 14y ago
    Ad Hominem. You might try responding to the statements she made. For a retired judge to step into the public arena like this is quite out of the ordinary and it indicates to me that the behavior she witnessed in Ortiz was so egregious that extraordinary measures were called for. So much for business as usual, happens all the time, nothing to see here, move along, move along..
    - mpyne 14y ago
      Appeal to authority. I at least bothered to respond with arguments at all (both mine and links to Olin Kerr's), and I did so without reciting high school debate knowledge under the assumption that HN readers are smart enough to figure out the difference between debating tactics and logical argument. You have responded with a doubling-down of the appeal to authority, as if it would really be that unusual for a judge interested in a case which has lit the Internet and media on fire for a whole week now to get her name out there as well. In fact, the very article you linked calls it a "chorus of criticism". Oh, and a couple of clichés. On the other hand, I did respond to the opinion you linked in by linking in other opinions. Yay, opinion war, go me. I will say thanks for the article though, as even your talking head confirms that the 35-year sentence was never going to happen (and by extension, the 50-year sentence I must assume).