Aaron Swartz's Partner Accuses DOJ Of Lying, Seizing Evidence Without A Warrant & Withholding Exculpatory Evidence

from the good-prosecutorial-discretion? dept

Yesterday we wrote about Attorney General Eric Holder’s ridiculous claims defending the prosecution of Aaron Swartz. We noted two key things that were ridiculous. First, Holder insisted that Swartz was only facing a few months in jail (he implied 5 months, tops) and scolded the media for claiming it was 35 years. As we noted it was the US Attorneys’ own press release that trumpeted the 35 years. More importantly, the few months in prison was only if he agreed to plead guilty. If he continued to profess his innocence (something you would do if you believed you were innocent), the US Attorneys claimed they were going to push for seven years. The other ridiculous point that Holder made was that it was “good prosecutorial discretion” to offer just a few months in the plea bargain, because that somehow showed them recognizing the “context” of the crime.

In response, Swartz’s girlfriend, Taren Stinebrickner-Kauffman has put out a very strong statement, slamming Holder’s claims. Not only does she highlight the threat of seven years in prison, but she goes much further, to allege clear prosecutorial misconduct by the US Attorney’s office, including seizing and holding evidence without a warrant, lying to the judge and then withholding exculpatory evidence from Swartz’s lawyers. These are three really serious charges that I haven’t seen much discussion about previously:

“Eric Holder and the Department of Justice are clearly trying to mislead the Senate and the public. Holder claims that Aaron was only facing months in prison while Heymann and Ortiz were actively pursuing a penalty of 7 years if the case went to trial. If you believe you’re innocent, you should not be coerced into accepting a plea bargain that marks you as a felon for life, just because prosecutors want to boast about taking a scalp. The discrepancy between the plea deal and the amount of prison time prosecutors said they would pursue at trial violates the DOJ’s own guidelines in this regard. Holder is trying to engage in revisionist history at the same time he claims that the strict sentences pursued by prosecutors were a ‘good use of prosecutorial discretion.’

What’s worse, this isn’t just about sentencing. Steve Heymann engaged in serious prosecutorial misconduct on multiple occasions. Public documents show that he instructed the Secret Service to seize and hold evidence without a warrant, violating the Fourth Amendment. He then lied to the judge about that fact in written briefs. And he withheld exculpatory evidence from Aaron’s lawyers for over a year, despite both a legal and ethical obligation to turn it over. If this constitutes appropriate behavior from the perspective of the Department of Justice, then we live in a police state.

The Department of Justice is not interested in admitting their errors, even when an out of control US Attorney’s office has cost this country one of our best and brightest. The DOJ is only interested in covering their asses.”

It’s too bad that Holder wasn’t quizzed about those specific points as well. The fact that he was able to mischaracterize the actions by the US Attorney’s office in how they went after Swartz is really unfortunate.

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Comments on “Aaron Swartz's Partner Accuses DOJ Of Lying, Seizing Evidence Without A Warrant & Withholding Exculpatory Evidence”

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153 Comments
Anonymous Coward says:

Public documents show that he instructed the Secret Service to seize and hold evidence without a warrant, violating the Fourth Amendment.

What are these documents? I’d like to see where the AUSA asked the Secret Service to violate the Fourth Amendment. Not all seizures require a warrant, and I doubt she’s a Fourth Amendment expert, so I have serious doubts about this claim. The “public documents” should be able to clear it right up. matter.

Anonymous Coward says:

Re: Re:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Where exactly is the exceptions to ‘shall not be violated’ that permit seizure of documents without a warrant?

silverscarcat says:

Re: Re: Re: Re:

Frisking a suspect is for the cop’s own protection. Searching a car can be illegal unless the contraband is in plain sight or the suspect gives permission. If the suspect says no, you can’t search my car, then they need a warrant unless they can see something like weed out in the open.

silverscarcat says:

Re: Re: Re:3 Re:

Stupid example is stupid. Rolls eyes If you’re going 20 miles over the speed limit, you’re endangering others and yourself, thus law enforcement has a right to pull you over. And since you’re smoking a joint, that’s obvious evidence and thus they can search your car without a warrant.

Your stupidity is astounding.

Anonymous Coward says:

Re: Re: Re:4 Re:

I was responding to this uninformed pile of shit:

Searching a car can be illegal unless the contraband is in plain sight or the suspect gives permission. If the suspect says no, you can’t search my car, then they need a warrant unless they can see something like weed out in the open.

Anonymous Coward says:

Public documents show that he instructed the Secret Service to seize and hold evidence without a warrant, violating the Fourth Amendment.

Citation needed

The discrepancy between the plea deal and the amount of prison time prosecutors said they would pursue at trial violates the DOJ’s own guidelines in this regard.

Citation needed

And he withheld exculpatory evidence from Aaron’s lawyers for over a year, despite both a legal and ethical obligation to turn it over.

Citation needed

Blaring headlines trumpeting serious allegations should allude to at least some basis in fact- even by the abysmally low Techdirt standards.

Out of curiosity Mike, is this you “doing” journalism this time or just another irresponsible, fact-free diatribe?

Gwiz (profile) says:

Re: Re:

Blaring headlines trumpeting serious allegations should allude to at least some basis in fact-….

Umm. Mike is repeating what someone else stated. The only fact that would need to be checked is if the person actually said it or not. All of you “citations needed” should be directed at the person who originally said them.

I will say that a link or source for Taren’s statement should have been included in the article though.

Anonymous Coward says:

Re: Re:

“Out of curiosity Mike, is this you “doing” journalism this time or just another irresponsible, fact-free diatribe?

Uhh…. pretty sure he’s saying the girlfriend put out that statement as it’s in a quoted block. Try reading it again maybe?

There is no reason not to think this statement of allegations isn’t newsworthy. At the very least it brings up the argument to not take Holder for his word and that more investigation needs to take place….

As far as any citations, these are allegations at this point made in a statement by someone who is in position to know something. Don’t take them as fact, but they are very serious allegations nonetheless…

Anonymous Coward says:

Re: Re: Re:

So Mike is free to “report” on any wild allegation by any disgruntled party free of any responsibility to assess whether what they’re saying contains even a grain of truth? That’s kind of the issue. Anything printed that runs counter to the TD narrative gets a body cavity inspection. Anything that’s consistent gets treated as Gospel.

RD says:

Re: Re: Re: Re:

“So Mike is free to “report” on any wild allegation by any disgruntled party free of any responsibility to assess whether what they’re saying contains even a grain of truth? That’s kind of the issue. Anything printed that runs counter to the TD narrative gets a body cavity inspection. Anything that’s consistent gets treated as Gospel.”

Then start your own fucking OPINION BLOG (which is what TD is, its not a “journalist” site) and STFU.

Oh I get it. You can point out any fallacy or inadequacy you perceive and expect a response or some kind of change to occur, but when everyone else here does the same thing about any of the topics discussed with a similar call to action, then it’s a hand-wave-dismissal and an “it’s the LAW!” appeal to authority and everyone should just go along like sheep.

Anonymous Coward says:

Re: Re: Re:2 Re:

Funny Mike “Waffles” Masnick claims to “do journalism”. But sometimes he claims he doesn’t. It’s hard to follow when he’s being a journalist and when he’s not. Seems like when it suits him, he’s a journalist. When it doesn’t he’s not. Whichever way he goes, it’s a great way to avoid any accountability.

Anonymous Coward says:

Re: Re: Re: Re:

So Mike is free to “report” on any wild allegation by any disgruntled party free of any responsibility to assess whether what they’re saying contains even a grain of truth? That’s kind of the issue. Anything printed that runs counter to the TD narrative gets a body cavity inspection. Anything that’s consistent gets treated as Gospel.

Exactly. It’s left to the reader to ponder when he’s doing journalism and when he’s not. Clearly here he is not, since no actual journalist would have printed this story.

Anonymous Coward says:

Re: Re: Re:2 Re:

Wait, wait… this just in from that bastion of journalism, Russia Today:

TechDirt reporter Mike Masnick says the statement demonstrates ?three really serious charges that I haven’t seen much discussion about previously.? Although Holder, Heymann and Ortiz have been accused or prosecutorial overreach in the past, Stinebrickner-Kauffman?s latest claims allege much more.

More laughably, the Russians characterize Masnick as a reporter, further impugning journalists worldwide.

Anonymous Coward says:

Re: Re: Re:3 Re:

More laughably, the Russians characterize Masnick as a reporter, further impugning journalists worldwide.

And that’s the problem with Mike’s silly claim that he sometimes does journalism but isn’t a journalist. He wants to be taken seriously and respected as a journalist, but he doesn’t want to be beholden to those pesky journalistic ethics and practices. Cake and eat it too, as it were.

placental detritus (profile) says:

Re: Re: Re: Re:

To your question; yes, he is. Amendment Numero Uno kind of thing. Even fools who ask (paraphrased) “is he actually allowed he write whatever he wants?!!” are actually allowed to write whatever they want.

Seriously cool part of American history, that First one; read up on it if you have a chance.

To your assertion of ‘the issue’ being people who make an argument “that Mr Masnik is wrong” face a more determined rebuttal than those folks who agree with him is… sadly, a bit myopic. It is barely an issue, much less ‘the issue’ at hand.

and kind of “well, duh!”

and kind of a more honorable way of doing what you are doing when you side-step the actual presented issue to call him out for his “unfair” bias instead of presenting a coherent argument that demonstrated that you went and fact checked and found… what?

are you a troll, Sir? Are you?

I hope that Ms. S-K’s allegations cause fact checking that causes Mr Holder to have to defend himself in open court. I’ve been anticipating some form of ‘insider’ counter-narrative to surface, if for no other reason than the volume of spin control the DoJ has invested in this affair.

Anonymous Coward says:

Re: Re: Re: Re:

To be fair, this isn’t just “any disgruntled party” we’re talking about.

You are right that anything printed that runs counter to the TD narrative usually get deconstructed to hell and back, but not always. Things that are consistent are not treated as the truth as often as you think. Usually, they are quoted with little comment. That’s what happened here; the comment amounts to “interesting questions; I’d like to see the official responses to them”, which is hardly a ringing endorsement.

out_of_the_blue says:

Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

Disclaimer for the hard-of-understanding: Holder is an only too typical gov’t thug with way too much power and no obvious scruples about using it.

BUT the precipating action seems due to an ingrained attitude rich young kids have that they can escape consequences, at most call their lawyer to bail ’em out. — Includes ignorance of the actualities of how poor people are oppressed EVERY DAY by attack dogs with badges, especially what young black men experience just by going out on the street: illegal causeless stops, searches, and seizures, direct to jail without seeing a judge or having an attorney. But of course 1% Ivy League Mike doesn’t concern himself with ordinary people, only with privileged snots who think they should “liberate” data.

Anyway, try to truly grasp that the gov’t is completely insane and power mad. And so are The Rich.

Therefore, PICK YOUR BATTLES. — And be on the right side of morality, not present yourselves as “pirates”. I bet Aaron Swartz wished he’d fought the battle on moral grounds instead of tossing himself into the sausage grinder that is “Justice” by taking actions that can easily be construed as criminal…

Anonymous Coward says:

Re: Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

Pretty sure Mike and company have covered plenty of stories of police abuse. This is just a major news event in a very public technical figure. The case even has Congress involved. You don’t think it should be reported on? Remind me not to read any news that went through the ootb filter….

Oh wait, to you everything Mike does is inherently wrong.

Any Mouse (profile) says:

Re: Re: Re: Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

Your mis-characterization of his suicide is problematic, and far-too common in society, today. The assumption is that someone kills themselves and is therefore weak. No one stops to take into consideration mental health issues. People with mental health problems such as depression do not make the best decisions. They make the decisions their illness pushes them towards. Using his suicide to ‘make a point’ in the manner that you do makes you the person on the wrong side of the debate by default. You cannot know why he committed suicide or what he was thinking in the moments before. All you can do is make assumptions and sickeningly twist it all to your own benefit or argument. Please, take that troll elsewhere.

JMT says:

Re: Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

“BUT the precipating action seems due to an ingrained attitude rich young kids have that they can escape consequences…

But of course 1% Ivy League Mike doesn’t concern himself with ordinary people, only with privileged snots who think they should “liberate” data.”

Your descriptions of Aaron and Mike are hilariously inaccurate, but they also reveal your deep-seated jealously of anyone who you perceive as more financially successful than you. I suspect that’s quite a lot of people.

“I bet Aaron Swartz wished he’d fought the battle on moral grounds instead of tossing himself into the sausage grinder that is “Justice” by taking actions that can easily be construed as criminal…”

Basically you think Aaron should have been a coward like you and just toed the line instead of standing up for what he firmly believed in.

Anonymous Coward says:

Re: Re: Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

Basically you think Aaron should have been a coward like you and just toed the line instead of standing up for what he firmly believed in.

How is hanging himself “standing up for what he firmly believed in”?

Anonymous Coward says:

Re: Re: Re:2 Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

No I’m not. How was hanging himself “standing up for what he firmly believed in”?

Standing up would have had him to tell the prosecutor to shove his plea offer and try his case and fight for his cause before a jury of his peers. Feel free to explain your contention. I think its really weak.

John Fenderson (profile) says:

Re: Re: Re:3 Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

It wasn’t. The disingenuous part is that you keep coming back to his suicide as if that was was the important action he took. You’re trying to use his suicide to distract everyone from what he was really doing.

His suicide was a tragic failure, but that failure in no way negates what he did up to that point — which was to fight for his ideals to an extent that very few people have the balls to do.

Anonymous Coward says:

Re: Re: Re:4 Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

John, what did he actually do?

I know there was a plea agreement that failed, return of JSTOR’s material, restitution to JSTOR and an apology to them as well. There was also a failed motion to suppress evidence against Swartz.

But I see none of that as “fighting for his ideals”. Are there other actions he took that show him fighting for his beliefs? Because apologizing, paying restitution and returning the purloined files seems a lot like an admission of wrongful conduct to me. From everything I’ve read, I infer that he didn’t take the plea deal because he didn’t want to suffer the consequences- not that he was bent on the righteousness of his cause and wanted to draw attention to both cause and government persecution through a big public trial. Read the girlfriend’s screed- it all seems to boil down to an inability to cope with the consequences of his actions. And that coupled with his mental illness led to a tragic decision.

Until you can provide an example of even one act of courage and/or principled stand, I have think that your objectivity is severely compromised.

John Fenderson (profile) says:

Re: Re: Re:5 Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

what did he actually do?

Wikipedia has a decent overview of his work: http://en.wikipedia.org/wiki/Aaron_Swartz

You’re focusing on the JSTOR debacle. That’s far too narrow of a view. His life is full of principled stands and fighting for what he believed in.

Because apologizing, paying restitution and returning the purloined files seems a lot like an admission of wrongful conduct to me.

Not to me. To me, this sounds like someone who was facing a legal situation that he couldn’t deal with, and was looking for a way to resolve it without too much sacrifice. This sort of thing happens all the time. Apologizing, paying restitution, and “returning” the files are easy, meaningless things (in this case) that might have lifted a burden beyond his ability to cope.

You say “inability to cope with the consequences of his actions”, and that’s not wrong as far as it goes. But those consequences were an overbearing, out-of-proportion, abusive DOJ. He didn’t predict such a crazed response (who could have?). I think a better phrasing of your statement is “inability to cope with an out-of-control prosecution”.

You are correct that his story ended the way it did because of his own demons. You’re incorrect that this means that his actions and intentions prior to the end are in some way called into question.

From everything I’ve read, I infer that he didn’t take the plea deal because he didn’t want to suffer the consequences

According to everything I’ve read, he didn’t take the plea deal because he didn’t think he was guilty of what he was being charged with.

I have think that your objectivity is severely compromised.

Irrelevant. I don’t claim objectivity. That said, I’m no less objective than you are.

Anonymous Coward says:

Re: Re: Re:6 Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

Moving the goalpost again? The entire conversation has been about the JSTOR debacle.

And I see little difference between compromising ones principles and apologizing, returning files and paying restitution than accepting a plea bargain. It’s the SAME thing, except one cost money and loss of face, the other caused loss of time and (perhaps) a stigma. Neither of those actions are consistent with “fighting back” or a principled stand”. I he felt he did nothing wrong, why apologize? Why return the files? Why pay damages?

I simply don’t see anything other than someone looking to avoid the consequences of his own actions. You, nor anyone else has been able to point to a single statement or deed in conjunction with this situation that remotely looks like a stand on principle.

Anonymous Coward says:

Re: Re: Re: Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

he was a coward, he knew he was guilty, and even though he (should) of known he was NOT going to spend a long time in prison, he took the coward’s way out, did not stand up for his ’cause’. But RAN AWAY from life itself.

Now there’s a back bone for you.

jeremy7600 (profile) says:

Re: Re: Re:2 Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

Who are you to talk about backbone?

You don’t have one. Its clear from the way you don’t put your name on anything, you coward.

That irony is lost on NO ONE.

Whats that saying about people who live in glass houses?

At least he made a statement.. All you do is flail at things hoping someone will take the bait.

Fuck you.

bratwurzt (profile) says:

Re: Re: Re:4 Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

He’s calling him out on his obvious hypocrisy. Pointing out hypocrisy doesn’t make you a hypocrite, since you’re not doing something you’ve called someone else out on.

Example:
1. you are dressed at a nudist beach and you’re making fun out of someone else who is dressed at that same beach
2. if I point out your hypocrisy my state of clothes is irrelevant to the point I’m making

At best it’s ironic.

JMT says:

Re: Re: Re: Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

I’ll assume your question is based on an ignorance of what clinical depression does to people.

The point is he did not give in to the DoJ’s bullying and threats by admitting guilt to felony charges he believed he was innocent of. You think he should of, which probably means you would too.

Anonymous Coward says:

Re: Re: Re:2 Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

I’m not so sure about him believing he was entirely innocent. It seems he did a great deal of apologizing to JSTOR, and I think he even compensated them financially. Not exactly the conduct of someone convinced of their innocence. No, he did not plead guilty and no one knows if he would have. Nor did he defend himself and his beliefs in court. The whole episode was a sad waste and accomplished nothing. Except a lifetime of sorrow for those who loved him.

Anonymous Coward says:

Re: Re: Re:4 Even given ALL your claims, Mike, Aaron Swartz let himself in for it.

You may want to try this service called “Google”:

JSTOR came over to Swartz’s side after “he gave the stuff back to JSTOR, paid them to compensate for any inconveniences and apologized,” Peters said.

http://bigstory.ap.org/article/swartz-death-fuels-debate-over-computer-crime

Anonymous Coward says:

‘The fact that he was able to mischaracterize the actions by the US Attorney’s office in how they went after Swartz is really unfortunate.’

rubbish! it’s out and out lying! and as stated, it’s being done to cover asses! if this isn’t the behaviour of a Police State, it must be as close as you can get without it being so!!

art guerrilla (profile) says:

as fucking if...

to the cowardly anonymouse above…

it is REALLY curious how you super-parasites, er, lawyers come on here ‘debunking’ shit, yet are afraid to put your name to it… (you will notice, there are a number of them who are not so afraid, why you ?)
hmmm…
wonder why that is…
(it *couldn’t* be ’cause they are full of shit and are blowing smoke up us non-parasite, er, lawyer asses, is it ? ? ? say it ain’t so, mouse… *snicker*)

now, to the meat of the matter: the old joke about ‘how can you tell if a lawyer is lying?’ ‘Their lips are moving.’, can apply even moreso to ‘our’ (sic) gummint…

given just about ANY subject, no matter how trivial, i am HIGHLY suspicious of ANY statements ‘my’ (sic) gummint makes…
AND, when you make it a subject which is of interest to either the preservation of their own bullshit bureaucracy, or their paymasters, then there are NO LIES too blatant and outrageous they will not tell…

in short, THEY LIE to us ALL THE TIME…
apparently, you are either incredibly naive, or a shill…
gosh, i wonder which it is…
gosh…

art guerrilla
aka ann archy
eof

AB says:

Re: Re: re anonymous coward

You say that as if you knew him personally; as if you were his confidante. If this is so then you really need to go to the police and explain how he told you in person why he was planning to commit suicide. Otherwise your statement is pure supposition. The fact is that nobody knows for certain why he killed himself, however the evidence suggests it was because he believed he was facing major prosecution for something he didn’t believe he was guilty of. Maybe all the evidence is wrong, but we have been given no reason to assume that. The only people – including psychologists – who claim it couldn’t be because of the prosecution’s actions are the prosecution and a handful of people who either don’t have any grasp on human nature or are being paid. Or possibly (probably) both.

Anonymous Coward says:

Re: Re: re anonymous coward

No, but in Mass. he could vote the day he walked out of the jailhouse door. He could run for office. But he couldn’t own a gun.

And employment-wise, he probably would have had a hard time passing a Walmart background check, but I doubt it would hinder his employability. He was among the best computer minds of his generation.

AB says:

Re: Re: Re:3 re anonymous coward

This may surprise you, but their are actually a lot of people who are prepared to die defending their beliefs. Without those people we would not have the freedoms we currently enjoy. Also, people who suffer from depression quite often believe that killing themselves will relieve their loved ones of what they themselves perceive to be a burden. I didn’t know the man, so I don’t claim to know what he was thinking. I am only pointing out that he there is significant reason to believe his decision to commit suicide was triggered by the treatment he received from the DOJ.

That Anonymous Coward (profile) says:

Gee there is actually a rule in DoJ about not withholding evidence.
See they did it enough and got sued for hiding evidence to put someone in jail when they had the evidence to raise serious questions about their claims.

The top lawyers representing Justice in this country, and there is a rule (rarely enforced and without any real penalties) to remind them to turn over all the evidence and not hide things that might hurt their case.

If someone defending someone against the Government hid a report that proved they knew what they were doing was wrong there would be sanctions and all sorts of problems… work for DoJ and well that’s just how the game is played.

Anonymous Coward says:

Re: Re:

You’re right, TAC, there are rules against withholding evidence. What evidence was withheld here?

On the other hand, if someone “defending against the Government hid a report that proved they knew what they were doing was wrong,” there would not be sanctions and “all sorts of problems.” At least not for the defendants.

CyberKender says:

I get he interrogation technique of applying pressure...

…to gain clues or even a confession from a criminal, but when applied like this, to an innocent individual, I keep failing to understand how what the DoJ did is really that different from when Vinnie the Fish walks into a shopkeeper’s business, speaks nice about what a nice little place it is, how it would be a terrible shame if anything were to happen to it, and how, for a ‘small stipend,’ he can assure the shopkeeper that no such harm will come to the business.

Anonymous Coward says:

Re: Re: Re: or do innocent individuals hide their faces to conceal their identities or run from the cops.

What do you think his purpose was in hiding his face behind his bicycle helmet as he entered the server closet?

Why do you think he pedaled his bike away and then jumped and ran when hailed and pursued by the cop?

I mean, we are talking about a fellow of the Harvard Center For Ethics, right?

Anonymous Coward says:

Re: Re: I get he interrogation technique of applying pressure...

Why not? The cops are not interested in your innocence, that’s for the judge to decide. The cops are just interested in pinning someone for whatever they can. Or they can just decide to shoot your car because it reminds them of someone else’s.

Prokofy Neva (profile) says:

You Can Seize Property from a Trespasser

Eric Holder was right to scold the media, and the copyleftist tech media starting with TechDirt and CNET have been the worst!

A press release from the DOJ describing the maximum terms for *charges* is not the same thing as a *sentence* after what we call “a trial” is heard with a judge and jury — and adversarial defense. To keep haranguing like literalist code-is-lawyers about this concept of “35 years” merely because abstractly, yes, these are the maximum sentences under the *charges* means you don’t get how the independent judiciary works. And no, Swartz wasn’t “bullied” into a plea bargain, but offered such a low bargain precisely because his conduct — as Holder explained — was not for mercenary reasons from all indications. As Holder said, he doesn’t look at the charges, he looks at the *conduct* — the acts, not the hysterical hypotheses of you geeks looking literally at these maximum sentences. Few court cases involve maximum sentences.

As for the notion that Swartz would get 7 years if he refused to plea, there’s no evidence for that, either, because again, it’s what the prosecutors think they can get if they make their case — but there are many mitigating circumstances. Holder said it was never the government’s intent for him to serve 3-5 months. As for the notion that having a felony on his record would ruin his life, he should have thought of that each time he committed such giant hacks serving as a “propaganda of the deed” — and he committed at least three of them. With all his friends like Lessig, there’s no indication he would have ever been lacking in jobs or positions. To be sure, he was banned from Harvard after this big hack, and it would be interesting to know what their thinking was, if what his friends keep ranting is true, that he “had authorized access” and it was “all forgiven and JSTOR didn’t press charges”. So why was he banned? That’s a question to ask about his conduct and intent, not just their possible “oppression” — which seems less likely.

As for Taren Stinebrickner-Kauffman’s claims that Heymann “lied,” while she’s understandably distraught and entitled to her grief and rage, she’s not entitled to her facts. The case files published on the Internet let her know that his lawyers tried that gambit of claiming that the evidence was seized without a warrant. But citing Sanchez, the precedent case about such issues *when a person is trespassing*, then the government *can* seize the property. It was used to commit the offense, after all — the laptop was hidden under a box in a wiring closet and logged directly into the LAN to use the system not as intended, after repeated circumvention efforts were caught and Swartz was knocked off the network. The lawyer doesn’t seem to have argued successfully otherwise when Sanchez was invoked.

As for witholding exculpatory evidence, until we hear what that is, we can’t make a judgement about it, and given how Swartz’s girlfriend misrepresented Heymann “lying” about the “failure to get a warrant” when the feds had the right to impound property from a person committing a trespass, it’s hard to accept it on good faith.

The DOJ isn’t “admitting” errors because it hasn’t made them. As Holder said to Coryn, in the Ted Stevens case, he found prosecutorial misconduct and overreach and he called it. If it were present in the Swartz case, he would call it, too. It wasn’t. He didn’t. Watch the whole video and not just the tendentious coverage of it in Huffpo and Slate:

http://nation.foxnews.com/aaron-swartz/2013/03/06/eric-holder-never-intention-aaron-swartz-go-prison-more-3-or-4-months

http://3dblogger.typepad.com/wired_state/2013/03/eric-holder-says-aaron-swartzs-prosecutors-did-their-job-properly.html

Anonymous Coward says:

Re: You Can Seize Property from a Trespasser

Swartz wasn’t “bullied” into a plea bargain

Really?

you geeks looking literally at these maximum sentences

The ones in big bold letters at the top of the DOJ press releases? Those ‘literal’ maximum sentences?

he should have thought of that each time he committed such giant hacks serving as a “propaganda of the deed”

Yes, the innocent should think about what trumped up felony charges might be level against them for the legal acts each time they commit such legal acts. I know I often consider what felony I might be charged with for my own legal activities…

which seems less likely

Only because you’re so naive.

The DOJ isn’t “admitting” errors because it hasn’t made them. As Holder said to Coryn, in the Ted Stevens case, he found prosecutorial misconduct and overreach and he called it. If it were present in the Swartz case, he would call it, too. It wasn’t. He didn’t.

Because it couldn’t possibly be that the DOJ doesn’t think it made any errors and is just wrong. One case of Holder correctly identifying misconduct is not evidence of his infallible ability to identify it nor his willingness to identify it in a completely different case.

horse with no name says:

even first year law students know the difference between the potential prison term and reality. What Aaron faced in theory was a long, long time in prison. However, in reality, he faced a very short period of time, and prosecutors seemed very much willing to get him a very short sentence in a plea bargain that could have put all of this behind him.

It would be absolutely remarkable that Aaron didn’t get basic legal advice on this. It’s equally remarkable that everyone around here seems to be ignoring that basic concept.

Anonymous Coward says:

Re: Re:

Sure, just ignore completely the fact that the actual complaint is that this huge disconnect between pleas and maximum sentences in cases puts disproportionate bargaining power in the hands of the prosecutors. The fact that it’s a systemic problem doesn’t magically make it a non-issue. It can but make it worse. That you think the systemic nature of this activity is some kind of defense is astounding.

Anonymous Coward says:

Re: Re: Re:

Sure, just ignore completely the fact that the actual complaint is that this huge disconnect between pleas and maximum sentences in cases puts disproportionate bargaining power in the hands of the prosecutors. ,/i>

Not in the Federal system. Sentencing guidelines, not statutory maximums are what controls negotiations. The prosecutors could have asked for 100 years, but if the guidelines are 6-9 months, that’s where the sentence falls. Unless of course you snitch, then you get less.

Anonymous Coward says:

Re: Re: Re:

He committed suicide because he was sick. So are you, for using his death in your own agenda.

I’m not the one publishing story after story using his tragic death to push my agenda. That would be Mike Masnick.

And there’s no doubt his depression was the primary factor in his suicide, there we agree. I dispute the characterization that some have claimed his suicide was due to his feelings of “guilt.” My take from the comments (and personal opinion) is that he couldn’t deal with the consequences of his actions. There are probably a lot of people who are arrested and cannot believe they were even capable of getting in so much trouble.

Anonymous Coward says:

You may not agree with his cause, but he did indeed fight a battle several, actually), and was indeed standing up for and fighting for what he believed was right.

Just because he lost doesn’t take away from any of that.

He didn’t lose. He quit. He didn’t stand up. No judge, no jury, no member of the public ever heard him stand up and defend his position and repudiate the law and the case of the prosecution. The only battles were backroom negotiations over a plea bargain that bore no fruit and motions to suppress that went nowhere.

Any Mouse (profile) says:

Aaron Swartz's suicide

I see far too many characterizing Mr Swartz as weak and/or guilty because he took his own life. They do not care that he was a sick man, suffering from depression. They do not care just how heavy-handed the actions were against him. So many people just assume was was guilty, and that his guilt drove him over the edge. Forget for the moment that he died an innocent man, because in this country you aren’t guilty until you’ve been judged so in the courts. Think, instead, just how twisted it is that so many people will no only decry the work he did, but call him a coward for taking his own life. That is truly sickening to me. It’s the basal misunderstanding of issues within the mind. It is ignorance and fear turning to disgust and hatred. I have nothing but pity for those sorts of people that would make these disparaging remarks against him. To me it is as bad as telling a cancer patient that they aren’t really sick, and they are faking it all. For highly intelligent people (or so go the claims), your minds truly are small and closed.

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