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