September 28, 2012

Aaron Swartz "JSTOR" case post reaction, and State charges were dropped

[Personal post reaction, and an under-reported aspect of the case]

Two weeks ago when I wrote about the indictment revision and expansion for the Aaron Swartz "JSTOR" case (disclosure: I know him socially, and have admired his work), actually breaking news, I only expected it to be read by my Z-list audience which amounts to handfuls, nay, veritable dozens, of readers. But due to being echoed by a few A-listers (thanks folks), it worked its way somewhat up the steep slope of power-law mountain, getting roughly 10,000 hits. As another proof of the Big-Head distribution effect, the readership was almost all from Hacker News.

The spike only brought me maybe 10 new subscribers though. All in all, given that the post wasn't a tremendous amount of research and writing work, that's fine. But overall it's the sort of gambling-jackpot result that evangelists point to for the froth, but neglect the lack of sustainability ("Look, little Z-lister, you got read, so you should keep working away for no money and no support, the startups need their buyouts").

Anyway, in several discussions about the case, I saw some people taking the view that while Aaron Swartz is alleged to have done minor physical entry violations, that's not part of indictment. It's important to know that the United States legal system is separated into different levels. As I wrote a while back, something like breaking-and-entering is a "State" charge. It's the domain of one of the fifty states which make up the United States of America, specifically Massachusetts. The United States government itself, is a different "sovereign", to use the legal jargon. The indictment being discussed is, literally, a Federal case.

It turns out that the State charges were dropped back in March, in favor of the Federal case.

State drops charges against Swartz; federal charges remain

March 16, 2012 John A. Hawkinson

The Commonwealth of Massachusetts has dropped all six charges against Aaron H. Swartz, ...

"In the interest of justice, we agreed to let the federal case have precedence," said Cara O'Brien, a spokeswoman for the Middlesex District Attorney's office. Many of the witnesses would have been the same in the two cases, she said, and since the state case would have gone to trial first, witnesses testimony might compromise the federal case.

... The charges dropped by Massachusetts were two counts of breaking and entering, one count of larceny over $250, and three counts of unauthorized access to a computer system.

Strategically, the thinking here is clear. I'm not a lawyer. But speculating, for a high-status first offender with a sterling record and no aggravating factors, I'd say the sort of charges above are ordinarily plea-bargained, and at worst would result in probation if there's a conviction. Swartz is blessed with the rare capability to mount a top-flight defense, and his legal team has every incentive to fight for an acquittal. If he's found innocent, that undercuts the Federal case against him in terms of the requirements to prove criminal legal violations of authorization. Thus the Massachussets prosecutor can at best hope for a piddling conviction on relatively minor (though still felony) charges, which they will have to work extremely hard for, and at worst work against a much larger Federal case. Hence they defer that Federal case, which has a huge amount of prosecutorial resources.

Note if Swartz didn't have the resources for an excellent defense, the overall prosecution strategy might have been to try to convict him on the State charges, and then leverage that result in the Federal case. There's significant practical calculation involved in these decisions.

For people who want case analysis from someone who is a lawyer, see Maxwell Kennerly: Examining The Outrageous Aaron Swartz Indictment For Computer Fraud.

And again, there is also a Aaron Swartz Legal Defense Fund.

By Seth Finkelstein | posted in legal | on September 28, 2012 03:54 PM (Infothought permalink)
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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