Did the Justice System Fail Aaron Swartz?

Two of Aaron Swartz's attorneys, one current and one former, say that the Government wanted Aaron Swartz to plead guilty to all 13 counts in the Superseding Indictment, and it would recommend a sentence of six months in confinement.

Aaron's first attorney, Andrew Good, also says he told the Government Aaron was a suicide risk.

[Good]said he told federal prosecutors in Massachusetts that Swartz was a suicide risk. “Their response was, put him in jail, he’ll be safe there,” Good said.


Andrew Good knew Aaron a long time. He represented Aaron in the 2009 PACER investigation, according to Aaron's FBI file which Aaron posted on his website on October 5, 2009.

April 14, Manassas, VA

SA [REACTED] spoke to SWARTZ, at telephone number […], and explained that the FBI is looking for information on how SWARTZ was able to compromise the PACER system so that the US COURTS could implement repairs to the system and get PACER running again. SWARTZ stated that he would have to talk to his attorney first and would call SA [REDACTED] back at a later time.

April 16, Manassas, VA:

On 04/16/2009, SA [REDACTED] returned a telephone call to ANDREW GOOD, (617) […]. GOOD is AARON SWARTZ’s attorney in Boston, MA. GOOD wanted assurance that if SWARTZ was interviewed, what he said would not be used to jeopardize him. SA [REDACTED] explained that assurance could not be given but that we were in an information gathering phase. GOOD refused the interview without the assurance.

April 20, Washington Field Office:

CASE ID #: 288A-WF-238943 (Closed)


CCIPS Attorney [REDACTED] closed the office’s case. Based on the CCIPS closing, Washington Field is closing this case as of this communication.

According to Elliot Peters, Aaron's most recent attorney, prosecutors told him two days before Aaron died that he would have to plead guilty to all 13 counts and accept a jail sentence of six months to avoid trial. .

Wednesday, two days before Aaron killed himself, Peters says he brought up a deal again with prosecutors. Peters said prosecutors made it clear their position had not changed: they wanted Swartz to plead to 13 counts and the government would seek six months of prison time or some “slightly lesser” amount of time. Elliot said they rejected the deal and he believed they would win the case at trial, which was scheduled to begin in April.

The Boston Globe interviewed all three of Aaron's attorneys. What the defense was seeking:

They had offered to accept a deferred prosecution or probation, so that if Swartz pulled a stunt like that again, he would end up in prison.

Marty Weinberg, Aaron's second lawyer told the Boston Globe:

Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. He said JSTOR signed off on it, but MIT would not. “There were subsets of the MIT community who were profoundly in support of Aaron,” Weinberg said. That support did not override institutional interests.

In June, 2011, days after being charged in federal court, Aaron and Andrew Good had turned over the hard drives with the downloaded Jstor data to the Secret Service at Andrew’s office. In an 8 page letter AUSA Heymann wrote to Good (via PACER , Document 20-1, filed 09/27/11) outlining the discovery in the case, on the topic of Aaron's return of the drives, far from being satisfied, Heymann responds with a veiled threat to Good:

Your involvement in the delivery of four hard drives containing documents, records and data obtained from JSTOR creates potential issues in this case under the Rules of Professional Conduct, as I am sure you are aware.

While the prosecutor proposed a stipulation to get around the issue, this strikes me as another example of his “my way or the highway” approach.

According to attorney Peters,

“There was such rigidity with the people we were dealing with,” Peters said. “I couldn’t find anyone in that office to talk about proportionality and humanity. It was driven by a desire to turn this into a significant case, so that some prosecutor could put it in his portfolio.”

Putting the validity of the charges and the strength of Aaron’s defense aside for the moment, I think the timing of events in the case, along with the new details about the plea negotiations, raises the issue of whether the Government’s response, when it realized Aaron would not take a plea, was to punish him further by ramping up the charges and filing the Superseding Indictment. The superseding indictment didn’t add new crimes, it just split the offenses into more counts, charging a separate count for the various times he accessed the network or downloaded material. It’s doubtful the added counts would have changed Aaron’s sentencing guidelines by much. But what psychological message did it send, – especially to a defendant known to be at risk of suicide?

The federal timeline, according to the docket on PACER:

  • 7/14/11 First Indictment filed
  • 7/19/11 Arrest warrant, Aaron’s first court appearance, Andrew Good enters appearance as counsel. Aaron is released on a $100,000 personal surety bond (signed by Aaron and his parents. No money was required, it’s a promise to pay if he fails to appear).
  • 8/11/11 Prosecutor sends Good a letter outlining discovery, in which he warns Good of potential conflict and suggests a work-around. Thereafter, the parties file numerous pleadings arguing about discovery and the need for a protective order.
  • 9/24/11: Good files another motion to compel discovery
  • 10/11/11: Hearing on discovery motions and motion for protective order (Gov’t wants to restrict Aaron’s ability to physically have copies of some discovery and wants his lawyers to review data records at Secret Service office rather than having their own copy. ) Judge asks for more briefs.
  • 10/25/11: Marty Weinberg enters appearance as Aaron's new lawyer (Good moves to withdraw 10/27)
  • 11/2/11: Second hearing on discovery motions and protective order. Judge orders a third hearing for 11/8
  • 11/8/11: Third hearing on discovery and protective order. Parties tell the court they've agreed on terms for a protective order and will submit it soon
  • 11/30/11: Judge enters protective order
  • 12/14/11: Hearing on discovery motions, parties say they are trying to work it out, another hearing set for January, 2012
  • 2/1/12: Aaron seeks and gets bond modification to move to New York
  • 5/22/12: Status hearing, parties say discovery isn't complete, ask for hearing in July.
  • 6/1/12: Defense files motion for discovery of additional items the parties failed to agree on
  • 6/22/12: Government files motion opposing Aaron's requested discovery
  • 7/26/12: Hearing on discovery motions, court hears argument, takes matter under advisement
  • 8/1/12: Judge rules on defense discovery motions, granting a portion and denying the rest; Court sets discovery cutoff for 8/15, defense motions due 9/28, Government responses due 10/30.
  • 8/15/12: Hearing, judge sets trial schedule
    Counsel anticipate trial lasting 2 weeks. Jury Trial set for 2/4/2013 09:00 AM in Courtroom 4 before Judge Nathaniel M. Gorton. Government's initial expert disclosures by 11/19/12, Defendant's by 12/10/12, and additional experts by 12/31/12. Motions in limine due by 1/14/2013; oppositions to Motions in Limine, Exhibit/Witness Lists, and proposed voir dire due by 1/21/2013; objections to exhibit/witness lists, proposed jury instructions, and proposed verdict form due by 1/21/2013.
  • 9/12/12: Government files Superseding Indictment
  • 9/14/12: Defense gets extension of time to file motions
  • 9/24/12: Aaron pleads not guilty to Superseding Indictment
  • 10/5/12: Defense files 5 motions to suppress and a motion to dismiss the wire fraud counts
  • 10/31/12: Local lawyer enters appearance, Marty Weinberg withdraws; 11/8, Elliot Peters and two other lawyers from Keker and Van Nest in SF enter appearance
  • 11/16/12: Government files responses to suppression motions and motion to dismiss wire fraud counts
  • 12/3/12: Defense asks to file sealed reply to government's response to suppression motions and motion to dismiss and asks for trial continuance and extension of date for expert witness disclosure. Government objects.
  • 12/14/12: Court holds hearing (defense lawyers appear by phone); Court sets hearing on suppression motions for 1/25/2013 at 1:00 p.m. Extends expert witness disclosure to 1/25/2013. Continues Trial to 4/1/2013
  • 1/11/13: Defense files supplement to motion to suppress regarding recently disclosed email from Secret Service Agent to prosecutor contradicting government's earlier assertion about delay in seeking and executing search warrant. Government files supplement with its contrary position asserting that the new email is no big deal.
  • 1/11/13: Aaron commits suicide.

There's another reason I've listed all these dates. For a defendant, even a mentally stable one, the interminable delays, particularly over seemingly minor issues like discovery disputes, can be torturous. For many, there is a cumulative buildup of stress and anxiety over the uncertainty of the case outcome and frustration that the case is dominating all aspects of their lives. If they have retained counsel, the legal bills keep mounting. They just want the case over with. Many want to give up and take the plea being offered, fair or not.

The threat of the loss of liberty is huge for every defendant. It affects everything you do, every day, and all your relationships. You can’t make plans for the future. Your friends and loved ones can empathize, but they can’t feel what you are feeling. You can’t just say, “I won’t think about it today.” It’s a threat that lurks in the recesses of your mind all the time. For someone like Aaron, with a history of depression, who is unable to see any light at the end of the tunnel, it can become unbearable. According to Elliot Peters, the last Government refusal to budge off its insistence of a felony plea and jail time was Wednesday. Friday, Aaron was dead.

It also seems the Court was aware Aaron had medical and/or psychiatric issues. On the order setting bond conditions, which contains a checklist with various options the Judge can put a check mark next to, such as drug testing, no drug use or excessive use of alcohol, stay away from victims, no guns, surrender passport, travel restrictions and the like, the judge checked the box for "medical and psychiatric treatment", adding a handwritten note "as directed." If the judge wasn't aware of any such issues, I don’t think that box would be checked. How would the judge know? If the lawyers didn’t raise it, then it most likely came from the pre-trial services report, which makes a recommendation to the judge as to the amount of bail and bail conditions. (Pre-trial services interviews the defendant after arrest, does record checks and then prepares a report for the Judge.)

While in Boston, Aaron was required to report to Pre-Trial Services every other week. On Feb. 7, 2012, when his motion to move to New York was granted, supervision was transferred to Pre-Trial Services in New York, presumably Brooklyn where he would reside. He was still under the supervision of Pre-Trial Services in New York at the time of his death.

Many people believe the Government should never have charged Aaron in the first place – that it should have recognized his genius, his youth, the victim’s request to drop the matter and his lack of financial motive in his acts. Others will say Aaron was being unrealistic, that a six month offer to end a multi-count federal indictment carrying a potential sentence of decades in prison, was a better offer than most defendants get (unless they cooperate), and guilty or not, he should have taken it because the downside was too great if he lost.

I think the Government’s over-reaching here was not so much in the initial charge, but in the hardball it played when it realized Aaron wouldn’t cave in. Unfortunately, this is not an atypical prosecutorial response – it’s actually fairly routine. What makes this case different is that, while we don’t know for sure, it seems like the Government filed the superseding indictment for the purpose of racheting up the pressure to plead guilty, ignoring the warning that he was a suicide risk. If it wanted to send the message that the more he resisted, the worse things would get, it succeeded -- Aaron is dead, it can’t get worse than that for him. But it seems as unnecessary as using a hammer to kill an ant.

As I said yesterday, I hope the Justice Department follows the lead of MIT and conducts a review as to the prosecutor’s actions. But the review shouldn’t be done by the U.S. Attorney for Massachusetts – that’s like asking the fox to guard the hen house. It should be an outside or independent review. I’d like to see a review that examines the government’s use of the “hammer” nationally. I think people would be shocked at the number of cases in which the prosecutor tells the defense:

  • Take the deal now, or the offers will only get worse
  • Take the deal now, or we’ll supersede with more charges. (In drug cases, it is often, plead now, or we’ll file an enhancement notice for your prior drug conviction and double the mandatory minimum sentence from 10 years to 20 years.)
  • This offer is only open until the motions due date. If you file motions, all offers are withdrawn and there will be no future offers.
  • If you don’t plead before the pre-trial motions hearing, you are going to trial.
  • No offer unless you cooperate
  • Here’s the offer, but you have to waive your right to appeal
  • Here’s the offer, but you have to agree to a sentence of X and you can’t request a lesser or non-guideline sentence.
  • If you take the offer, we’ll agree not to prosecute your wife (or husband or child or parent). If you don’t, they are fair game and we aren’t threatening them, but we think we have a good case against them.

While we have the best criminal justice system in the world, it is not without significant flaws. The Aaron Swartz case may be representative of some of them. His family, and the public, have a right to know. Was this a case of a prosecutor merely doing things by the book when faced with a defendant he viewed as stubbornly refusing to accept appropriate responsibility for his criminal acts, or was it a case of a prosecutor’s callous disregard for the individual circumstances of a defendant with known psychological problems and his stubborn refusal to acknowledge and take into account that this was a defendant whose intent was not to defraud but to further his view of social justice?

Aaron Swartz's funeral was held today in Chicago. RIP Aaron.

< MIT to Conduct Internal Probe on its Role in Aaron Swartz Case | Tuesday Open Thread >
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    That's a rhetorical question, right? (5.00 / 5) (#1)
    by Anne on Tue Jan 15, 2013 at 03:47:32 PM EST
    The more I read, the worse it gets.

    What's so ironic to me is that we are currently having a national discussion about the dire need for adequate mental health care in order to try to lessen gun violence (and shift the focus away from the guns themselves), while within the justice system itself, the mental health issues of defendants seem to be regarded as slam-dunk prosecutorial opportunities to leverage guilty pleas.  

    As far as I'm concerned, this is where things have been leading for some time, and really, how could they not be, when we find ways to pervert the rule of law to justify our actions, and turn innocent-until-proven-guilty on its head?

    I think the larger question that needs to be asked is, "Is the Justice System Failing?"

    Laws - laws are for other people (5.00 / 1) (#26)
    by MO Blue on Wed Jan 16, 2013 at 06:14:26 AM EST
    Pirating while writing laws against Online Piracy.

    Over the last four months, employees of the House of Representatives have illegally downloaded dozens of films and TV shows, according to a report shared with Whispers by ScanEye, a website that tracks what IP addresses have downloaded on BitTorrent. BitTorrent is a protocol for sharing large files over the Internet. Unauthorized downloads of copyrighted material is illegal in the U.S. link

    It was reported that the House of Representatives was illegally downloading at the same time (12/2011) some members of Congress were drafting legislation for the Stop Online Piracy Act, a bill that proposed to expand punishments for streaming of copyrighted content. BTW, the downloads haven't stopped.

    Good thing the bill did not pass because I'm sure that the new laws would be used to prosecute the members of the House who are breaking the law. Oh wait, where is the investigation and subsequent arrests for those breaking the existing law?


    If they have a case they can prove... (5.00 / 1) (#2)
    by unitron on Tue Jan 15, 2013 at 04:48:07 PM EST
    ...why does the prosecution have to pressure a guilty plea?

    The best criminal justice system in the world? (5.00 / 2) (#10)
    by SJH on Tue Jan 15, 2013 at 07:29:58 PM EST
    The best criminal justice system in the world? Really, Jeralyn?

    Tell that to Weldon Angelos, sentenced at age 24 to 55 years for selling marijuana, essentially a life sentence, with no possibility of parole and even less chance of a pardon or commutation from this President who has shown no mercy toward the unjustly convicted or sentenced.

    And to Clarence Aaron, a 23 year old college student, now 18 years into his sentence of three life terms for introducing a government informant to a drug dealer even though there was no evidence that Aaron handled any drugs himself.

    These cases are not aberrations, but rather illustrative of a system of criminal justice where prosecutors have unchecked and unaccountable power to crush defendants by piling on charges that can easily result in decades of prison time. No wonder the DOJ enjoys a 97% conviction rate. Who wouldn't accept a five-year plea deal rather than risk a trial that could easily bring a 20, 30 or 40 year sentence? Actual innocence or guilt becomes irrelevant at this point.

    Add to this some other peculiar quirks in our "best criminal justice system in the world," like acquitted conduct sentencing where a defendant can be sentenced for acts of which he or she has actually been found not guilty by a jury. Or perhaps not even been charged with; just based on hearsay evidence in a pre-sentence report! It is more reminiscent of the justice system in the former Soviet Union (which, of course, our government roundly condemned).

    In this context, Aaron Swartz's decision to end his life in the face of that kind of brutality (and that's what it is) was not a totally irrational act. He was facing ruinous legal bills and the possibility of decades in prison and millions of dollars in fines. The US Attorney's office was well aware of his fragile mental state, but nonetheless brought the full weight of the United States government down to bear on this talented and sensitive young man. There was a total absence of proportionality, as Professor Lessig rightly pointed out in his moving memoir.

    Glenn Greenwald hit the nail on the head in his Guardian column:

    "Whatever else is true, Swartz was destroyed by a 'justice' system that fully protects the most egregious criminals as long as they are members of or  useful to the nation's most powerful factions, but punishes with incomparable mercilessness and harshness those who lack power and, most of all, those who challenge power.

    The best criminal justice system in the world? I think not. Rather, its an embarrassment and a national disgrace!

    J did not say our system was perfect (5.00 / 2) (#13)
    by Peter G on Tue Jan 15, 2013 at 07:59:44 PM EST
    or anywhere near that. And if you follow this site you know she doesn't think it is.  What she said was that it was the best in the world.  I don't know whether that's true or not, but nothing in your post addresses her claim.  Identify another country you contend has a better system, describe it -- good points and bad -- and then compare. Otherwise, you're just indulging in non sequitur.

    SJH, whose system is better? (5.00 / 1) (#18)
    by Jeralyn on Tue Jan 15, 2013 at 09:54:47 PM EST
    As I said, it's not without it flaws, but it still beats systems elsewhere. For 10 years, this site has been pointing out flaws in the criminal justice system and specific cases of injustice on a daily basis, including that of Weldon Angelos. We don't need a lecture from you.

    with all due respect (none / 0) (#28)
    by NYShooter on Wed Jan 16, 2013 at 08:53:41 AM EST
    as long as you hold the "delete" button in your hand you don't "need" a lecture from SJH, or anyone else, for that matter.

    Isn't the Burden of Proof on you Jeralyn? (none / 0) (#36)
    by RickyJim on Wed Jan 16, 2013 at 08:35:47 PM EST
    You made the sweeping claim that the US has the world's best criminal justice system.  Do you know Profs Campos and Pizzi of the University of Colorado Law School?  Their writings indicate that they don't think so. Some of the room for improvement which would bring us up to the quality of the best systems:
    1. Felony cases are investigated by a judge who has the police reporting to him.  Indictments have to come from the judge after hearings where both sides are heard.
    2. Prosecutors only get a case after the judge indicts.  There is a wall between them and the police.
    3. Lawyers for both sides are not allowed to interview non-expert witnesses.  Then can request that the police interview witnesses and the results are sent to the investigative judge.
    4. Prosecutors and judges are part of a civil service meritocracy.  
    5. All discovery comes to the judge who makes it available to both sides as part of a common dossier.
    6. No such thing as plea bargains since pleas are not allowed.
    7. At trial, a panel of judges calls the witnesses and examines them with lawyers, defendants, jurors and perhaps victims allowed to raise their hands and take their turn asking individual questions.

    You are describing the European, or (none / 0) (#37)
    by Peter G on Wed Jan 16, 2013 at 09:17:56 PM EST
    "inquisitorial" system.  No adversary system of defense; usually no juries. Judge is not expected to be impartial. No right for the accused to remain silent. No presumption of innocence. I suppose it is debatable whether that is a "better" system.

    Adversary System is a Joke (none / 0) (#38)
    by RickyJim on Thu Jan 17, 2013 at 08:38:34 AM EST
    A system to find the truth where the people asking almost all the questions won't ask one they don't know the answer to.  HaHaHa.  ROTFL.

    just to address the factual inaccuracies (5.00 / 1) (#19)
    by Peter G on Tue Jan 15, 2013 at 10:13:30 PM EST
      1. Swartz did not pay $100,000 bail.  As clearly articulated in J's post, he and his family promised to pay $100,000 in the event that he were to violate his bail.  He posted no actual funds or security when he signed that promise.  However, the stories also make clear that he became a rather wealthy young man when Conde Nast purchased Reddit, and he received his share of that payment on account of his founding role.
      2. Madoff is not and will never be in a minimum security facility.  However, had Aaron Swartz accepted the deal he was offered and had the judge sentenced him to four months or six months, he would indeed likely have been assigned to such a facility.  Unless he were considered a serious suicide risk, in which case he would be in a maximum security hospital facility.
      3. The news stories linked on this site have made pretty clear that Swartz's lawyers did not reject the six-month deal, or even recommend that he reject it; rather, he did. In fact, only the defendant personally, not the defense lawyer, can accept or reject a plea bargain.

    And most important, none of us is in a position to say what is "easy" for the family and other loved ones of the severely mentally ill.

    This deserves to be said again: (5.00 / 2) (#22)
    by Towanda on Wed Jan 16, 2013 at 12:48:12 AM EST
    Most important, none of us is in a position to say what is "easy" for the family and other loved ones of the severely mentally ill.

    Thank you, Peter.

    And thank you, Jeralyn, for your work on this.  As it happens, I know someone at MIT, who knows some of the family and friends.  I have been sending your analyses, and my friend appreciates them, in his sadness; apparently, your analyses serve as some form of solace, when there is so little.  So sad.


    diogenes comment was deleted (none / 0) (#20)
    by Jeralyn on Tue Jan 15, 2013 at 10:59:52 PM EST
    for factual inaccuracies. He is well aware of our policy that this site cannot be used to spread misinformation.  He needs to read more closely and learn the facts before spouting off his usual  ant-defendant positions.

    I clearly said no money for bond was required. It was an unsecured bond, which means no money is deposited or required to be deposited. If Aaron failed to appear when required, the signers (here Aaron and his parents) would owe the government $100,000.


    "refusal to acknowledge" ? (5.00 / 1) (#24)
    by Andreas on Wed Jan 16, 2013 at 04:15:40 AM EST
    Jeralyn asks:

    was it a case of a prosecutor's ... stubborn refusal to acknowledge and take into account that this was a defendant whose intent was not to defraud but to further his view of social justice?

    This seems to be the wrong question. It is more likely that the persecutors acted like they did because of Aaron's view of social justice.

    Is this anything different than the death of.. (none / 0) (#3)
    by redwolf on Tue Jan 15, 2013 at 05:00:06 PM EST
    Alan Turning?

    This kid was a computer Genius of the first degree and our so called justice system killed him while allowing real criminals like John Corzine run around free.

    What are .... (none / 0) (#5)
    by sj on Tue Jan 15, 2013 at 06:26:05 PM EST
    ...you talking about? Did you read your own link?  

    • For starters Turing, was a British subject.  
    • He died in 1954 when John Corzine was only 7 years old.
    • He was prosecuted for being gay which was illegal in in the UK at that time.
    • It's not even certain that he committed suicide.

    The only things they have in common is:
    • Both were men
    • Both men were genius level intellects

    I'm not one inclined to let the government off the hook here, but this is a total red herring.



    Alan turning was prosecuted for committing... (none / 0) (#8)
    by redwolf on Tue Jan 15, 2013 at 06:41:45 PM EST
    a non crime.  So was Aaron Swartz.  A crime requires actual harm to another person.  Neither Turning or Swartz caused harm to anyone.

    If you believe one the smartest men of the 20th century accidentally inhaled cyanide, then I have a bridge to sell you.

    John Corzine took 1.2billion he didn't legally have access and gambled it away on Greek bonds.  That's called embezzlement.  He caused harm to people who didn't even know their money was being transferred through MF global.  He's still living free and Aaron Swartz is dead.  Our justice system is a joke.


    Where did you get the idea (5.00 / 2) (#9)
    by Peter G on Tue Jan 15, 2013 at 07:22:44 PM EST
    that a crime requires consummated harm? You just assert that, but it isn't true. There is an entire, well entrenched category of inchoate crimes. Attempts, conspiracy, burglary, possession of instruments of crime, etc., etc.  Mail fraud does not require any completed harm, just the designing of a scheme to defraud plus the use of the mail for the purpose of executing the scheme, and has been a federal crime since the early 1870s.  The wire fraud law, under which Swartz was charged, is modeled on mail fraud, and has been on the books since the early 1950s.  His plan was to take intangible "property" (as recognized by the law, whether rightly or wrongly) belonging to JSTOR, a not-for-profit consortium, and give it away for the purpose of undermining if not destroying their project. What was done to him by the government was horrible (although not unusual, as Jeralyn is explaining), and he might even have had some good legal defenses to the charges in the indictment, but on the face of it, he was apparently (and deliberately, for what he thought was a noble motive) committing federal crimes.

    I don't know,... (none / 0) (#12)
    by redwolf on Tue Jan 15, 2013 at 07:56:36 PM EST
    where did you get the idea that you deprive someone of their life and liberty without them having attempted to or actually caused someone else harm?  How can you call locking someone up justice without actual or attempted harm being done?  

    Did Swartz trespass? No.  Did Swartz access data he didn't have a right to have access to? No.  All you have left is the inchoate offense without the proceeding actual/attempted harm.  That's a bullshit charge and if I was on the jury I'd vote not guilty in a second.

    You must have an actual crime before you can start tossing inchoate offenses around.  Anything less allows inchoate charges to be used in a tyrannical ways which is exactly what happened in this case.


    Red herring, redwolf (5.00 / 1) (#16)
    by Peter G on Tue Jan 15, 2013 at 08:32:32 PM EST
    where did you get the idea that you deprive someone of their life and liberty without them having attempted to or actually caused someone else harm?  How can you call locking someone up justice without actual or attempted harm being done?

    I don't have that idea, and didn't express it. I disagreed with your claim that there could no crime in the absence of harm; I was the one that cited attempts as an exception. And I didn't say that locking someone up without attempted harm should be called justice.  So I have no idea on what basis you are attacking me. To plead guilty to wire fraud, for example, Aaron would have had to admit to having an intent to defraud JSTOR of its property. (Although this falls short of what lawyers classify as "attempt," the intent to cause harm is the same.) If that wasn't true, except in exceptional circumstances, he couldn't plead guilty.  If the government couldn't prove beyond a reasonable doubt that Aaron did have that criminal intent, then the jury would acquit him. To me, the circumstantial evidence I've seen described suggests that he did have the intent that these laws criminalize. As well as having good intentions and a good motive, and not deserving to be imprisoned.

    Like I said (5.00 / 1) (#27)
    by sj on Wed Jan 16, 2013 at 08:49:35 AM EST
    I'm not one to let the government off the hook, and Turing's "criminal" prosecution was a travesty -- as was Aaron Swartz's. But conflating all these unrelated things together is just plain old messy thinking.

    And that's true without bringing the odious John Corzine into the mix.


    Criminal acts (none / 0) (#4)
    by Abdul Abulbul Amir on Tue Jan 15, 2013 at 06:12:46 PM EST

    Frankly, I don't understand why what he did is a felony. For that matter why it is even a misdemeanor.

    Some people kill themselves rather than deal... (none / 0) (#14)
    by redwolf on Tue Jan 15, 2013 at 08:03:29 PM EST
    with the shame of jail time.  When going up against the DOJ no matter how innocent you are you're going to jail.  Tin Pot dictatorships have a lower conviction rate than 97%.  Our system is a sham.

    It is not true that everyone charged (5.00 / 1) (#21)
    by Jeralyn on Wed Jan 16, 2013 at 12:01:58 AM EST
    federally goes to jail. Most cases are resolved by plea bargain, and it is not unusual for defendants, even those who do not cooperate, to  plead guilty and be sentenced to probation, home detention, or time served with supervised release.

    85,000 federal defendants were sentenced in 2011 and 7% got probation with no jail time.

    10,000 federal defendants were sentenced  for fraud and larceny offenses in 2011.  44% of the larceny defendants and 14% of the fraud defendants got probation only sentences. See table 4 here.

    14.4% of the defendants convicted of fraud in Mass. got probation with no jail. 41.7% of the defendants convicted of larceny in Mass. got probation with no jail. See Table 5.

    Nationally in 2011, 96.9% of federal defendants plead guilty and 3.1 % went to trial. In Mass., where Aaron was charged, 91.9 % pleaded guilty and 8.1% went to trial. Of the 89 defendants charged with fraud offenses in Mass. in 2011, 84% pleaded guilty and 16% went to trial.  See Table 5.


    According to statistics published on this site (none / 0) (#17)
    by Peter G on Tue Jan 15, 2013 at 08:41:36 PM EST
    less than a year ago, of 2448 defendants who went to trial in federal court in 2011, 15.8% were acquitted. The trials, however, represent 2.4% of all cases. The rest are either dismissed or end in guilty pleas.

    "best criminal justice system" (none / 0) (#23)
    by Andreas on Wed Jan 16, 2013 at 04:06:42 AM EST
    Well, this is a strange statement considering the fact that this criminal justice system belongs to the few which regularly and "legally" kill people and at the same time protects mass murderers like George Walker Bush or Barack Obama and people responsible for torture like John Yoo.

    From WSWS report on funeral (none / 0) (#25)
    by Andreas on Wed Jan 16, 2013 at 04:46:10 AM EST
    Peter Eckersley, Technology Projects Director at Electronic Frontier Foundation, and a friend and collaborator of Swartz, said, "It was a terrible loss. We both worked together fighting SOPA and PIPA," referring to proposed legislation to increase government control over the Internet.

    With tears in his eyes, Eckersley said, "A big problem in the US is the out-of-control criminal justice system. I'm from Australia and I find it unbelievable here. You have a system that takes people that do not hurt anyone and puts them in prison."

    Father of Aaron Swartz indicts US government for son's suicide
    By our reporters, 16 January 2013


    To me (none / 0) (#29)
    by Reconstructionist on Wed Jan 16, 2013 at 11:26:07 AM EST
    insisting upon a plea agreement either certain or likely to result in incarceration was excessive, but some of the arguments being used to support that view really don't strike me as persuasive.

      I do not think it is "wrong" for the government to consider the circumstances surrounding an act (including the charged person's views on the wrongfulness of his admitted conduct) in determining the offer to be made. In general terms, it both makes logical sense and is "fair" (IMO)to be more lenient with a person who concedes that he not only broke the letter of the law but acknowledges also that he now understands he must follow the law or face consequences even if he thinks the law is wrong.

       A person who states that he acted in accordance with his view of "social justice" and feels morally justified as a result can reasonably be considered more likely to violate that law or a similar law in the future. A person who conversely states that upon reflection he realizes he made a poor choice and understands that agreement with a law is not justification to violate it can be reasonably viewed as less likely to re-offend.

      This is not akin to a law prohibiting consensual  sodomy which singles out a class of people for exercising personal autonomy. He took something that did not belong to him to make point (or points).

      I might wish to make the point that people are selfish to hide works of art in locations that require admission and that the world would be a better place if people could see the art  for free. If I choose to make that point by entering without authorization and removing the art to a public place I should not feel as if I have been treated unfairly if charged with a crime.

      Once charged, if my goal is to mitigate punishment I should probably express remorse, apologize, acknowledge that I was wrong and promise not to do it again. If making my social or political point is more important to me and I decide to argue I am the moral one and the law is immoral  I should be prepared to suffer more severe punishment. As acts of civil disobedience are concerned, the willingness to "martyr" one's self for one's conception of the greater good is a key component.

      Now, Mr. Swartz obviously suffered from emotional issues that must be considered and it could be argued that even a unrepentant posture toward the crime he allegdly committed was not sufficient to warrant imprisonment, but that's more an argument a defendant would make to a judge at sentencing than a position a rational person would expect the proisecution to take.


    It appears that you are leaving this out (5.00 / 2) (#30)
    by MO Blue on Wed Jan 16, 2013 at 11:35:29 AM EST
    of your analysis::

    Swartz and his lawyers were not looking for a free pass. They had offered to accept a deferred prosecution or probation, so that if Swartz pulled a stunt like that again, he would end up in prison.

    No (none / 0) (#31)
    by Reconstructionist on Wed Jan 16, 2013 at 12:16:30 PM EST
      I'm suggesting that a person seeking to receive such leniency--- by agreement with the prosection--- would be well advised to adopt a different posture with regard to the acts he undertook resulting in his being in trouble.



    Not if the act is (none / 0) (#32)
    by Peter G on Wed Jan 16, 2013 at 03:59:01 PM EST
    done as a form of civil disobedience. Then, once caught, the defendant may stand on the position that what s/he did was morally right, even if legally prohibited, and simply say that s/he accepts whatever punishment the law, as the voice of the established order, chooses to impose. (And I do not consider it inconsistent with this position for defense counsel to urge that the sentence be as lenient as possible.  Gandhi, on the other hand, believed that the civil disobedient should, as a matter of principle, demand that the judge either impose the maximum punishment or resign. I disagree.) A good prosecutor should then consider, in our democratic system, the role that such conscientious disobedience has played historically in advancing our society's understanding of justice, and moderate the ordinary exercise of discretion accordingly.  The judge should take the same unusual consideration into account, in such cases, at sentencing. (Hat tip here to the otherwise-too-conservative-for-me Alexander Bickel, for planting the seed of these ideas in me, in his book of essays on democracy called The Morality of Consent.)

    As I said in my original post (none / 0) (#33)
    by Reconstructionist on Wed Jan 16, 2013 at 04:13:01 PM EST
    Once charged, if my goal is to mitigate punishment I should probably express remorse, apologize, acknowledge that I was wrong and promise not to do it again. If making my social or political point is more important to me and I decide to argue I am the moral one and the law is immoral  I should be prepared to suffer more severe punishment. As acts of civil disobedience are concerned, the willingness to "martyr" one's self for one's conception of the greater good is a key component.

      It may not be "morally inconsistent" to claim you are engaging in true  civil disobedience and simultaneously seek the least severe punishment, but it would appear to me the arguments for light punishment need to be made to the court in the sentencing procedure. I find it difficult to reconcile the position one can simultaneously claim the moral high ground and expect the prosecution in an adversary system should feel compelled to give me the deal I find acceptable.

      One might even suggest that the very act of negotiating with the prosecutor is contrary to the ideals of civil disobedience.

      And, while I'll agree that a good prosecutor should be mindful of the role civil disobedience has played in history, I don't think that necessarily compels the conclusion that the good prsecutor must view conduct here or the  "social good" promoted by the conduct as closely akin to the examples of Gandhi or MLK.


    I'd also suggest (none / 0) (#34)
    by Reconstructionist on Wed Jan 16, 2013 at 04:26:57 PM EST
     a good argument can be made that true civil disobedience requires openly identifying yourself as the responsible person from the beginning and tha the claim loses a good bit of force when it is not clear you intention was from the start for it to be known that you did it.

      Admitting your conduct when an inquiry is made is a bit different from thatin my view.

      Again, I'm NOT saying I think he should have been imprisoned or that the prosecutor was virtuous. It's tragic he killed himself but that sad result does not mean he should canonized in memorium or even held out as a person to emulate.


    Sticking with the discussion of the theory (5.00 / 2) (#35)
    by Peter G on Wed Jan 16, 2013 at 05:01:42 PM EST
    of civil disobedience, let me say that (1) I didn't mean to seem to be principally disagreeing with your comments, which I mostly don't, only focusing on this factor; and (2) while open commission of the forbidden act is very Gandhian (and cited by the late moral/social philosopher Hugo Adam Bedeau as an essential characteristic of true civil disobedience), I think that the Underground Railroad stands as a powerful counterexample that demands rethinking of that position.

    What Were Aaron's Priors? (none / 0) (#39)
    by run75441 on Tue Jan 22, 2013 at 05:07:56 AM EST
    Been battling with the courts (not an attorney) for 10 years now, so please speak English.

    13 federal charges appears to me to be excessive and akin to calling 4 punches to the face in one incident the same as demonstrating a pattern of criminal activity over the last 5 years. ~half of the prison (state, federal, and local) population is nonviolent and probably worthy of a lesser sentence. I would have thought for a first offense, a couple of years of probation and a sentence of a year or so would be adequate if probation was violated. The objective is not to imprison people at an approximate $32,000 per year as to dissuade them from doing it again.


    The prison system is not setup to handling the mentally ill or those who are prone to physically caused disorders resulting in seizures. Advocatig prison time for the mentally ill is a crap shoot even if placed in a specialized ward. Literally when a mentally ill prisoner says they have sh*t in their locker, they mean just that when questioned.

    A maximum security mental hospital sounds more like something Dr. James Gilligan experienced as a psychiatrist and wrote about in his book. If Aaron was assigned to this hospital; in all likelihood, he would be exposed to those who have committed some of the more violent crimes and not be safe. If it was the same as a level 5 or 6 prison as in my state, he would be faced with 23 hours of lockdown and the shower would come to you.

    In reality, we do the mentally ill a disservice by sending them to typical prisons. Aaron deserved better.

    addendum to Aaron (none / 0) (#40)
    by run75441 on Thu Jan 24, 2013 at 06:25:27 AM EST
    As I was thinking about this case and the posts I write at an economics blog, why was Aaron so important to convict in a harsh manner? Granted he cost an estimated $millions; but when this is compared to what TBTF did and the $trillions and $billions The Fed and Tarp had to pump into the economy, Aaron's crime pales in comparison.

    Yet the DOJ has placed a hold on convicting TBTF banks and companies (beyond financial penalties) because it may disrupt the companies and banks which committed fraud in processing MBS/CDOs, CDS, mortgages and other securities to make a fortune in profits. Before Breuer left his present position, he justified such actions with this statement:

    "We are frequently on the receiving end of presentations from defense counsel, CEOs, and economists who argue that the collateral consequences of an indictment would be devastating for their client. In my conference room, over the years, I have heard sober predictions that a company or bank might fail if we indict, that innocent employees could lose their jobs, that entire industries may be affected, and even that global markets will feel the effects...."

    The legal system has two standards.