Holder Defends Aaron Swartz Prosecution
During today's Senate Judiciary Committee hearing on Department of Justice Oversight, Attorney General Eric Holder defended the prosecution of Aaron Swartz. He said prosecutors offered him a three month sentence and later said they would seek six months. He said the charges carried a potential of 35 years in prison.
What about the overcharging? Any prosecutor can overcharge and then offer you a deal to what you should have been charged with in the first place. What kind of deal is that?
Holder said DOJ has examined the matter and determined the prosecutors acted appropriately. Their examination included talking to the prosecutors. Did they talk to defense counsel? [More...]
What was the justification for the Superseding Indictment against Swartz?
Nonetheless, I hope defense lawyers use this comment by Holder in their plea negotiations with the AUSA's on their cases:
I think that's a good use of prosecutorial discretion to look at the conduct, regardless of what the statutory maximums were and to fashion a sentence that was consistent with what the nature of the conduct was."
If he means this, shouldn't we expect to see a lot more plea agreements with joint recommendations for downward variances from the Sentencing Guidelines to reflect the lawyers' view of the nature of the conduct versus the Guidelines' view? I may be cynical, but I doubt that's going to happen except in rare situations.
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