Yesterday Patterico.com exclusively reported information about the plea deal that Aaron Swartz was offered by prosecutors: plead to all 13 felonies and receive prison time, or go to trial and face a request from prosecutors for 7-8 years in prison if convicted:
Swartz’s lawyer, Elliot R. Peters of Keker and Van Nest LLP, echoed these sentiments to me today in an interview. Peters refused to speculate about why Swartz committed suicide. He described Swartz as a “very sensitive and very smart person” who had been “very scared” by the Government prosecution. Peters told me that, in his opinion, the Government had been “awfully unreasonable” in their approach to the case. He said that they insisted that Swartz plead to all 13 felonies. They said that even if Swartz pled guilty, they were going to seek a prison sentence. They told Peters that if the case went to trial and Swartz were convicted, they would seek a prison sentence of 7 to 8 years. They told Peters that they thought the judge would impose that sentence. (Peters told me he didn’t agree; he thought the case was defensible and that even if Swartz lost, Peters didn’t think the judge would have sentenced him to custody time.)
Swartz, the Internet activist who was being prosecuted for downloading JSTOR files that were recently opened to the public, found a final way to reject the offer: he hung himself on Friday.
Today, the Wall Street Journal puts more meat on the bone, revealing that the Government reiterated its position on Wednesday, two days before Swartz hung himself:
Mr. Swartz’s lawyer, Elliot Peters, first discussed a possible plea bargain with Assistant U.S. Attorney Stephen Heymann last fall. In an interview Sunday, he said he was told at the time that Mr. Swartz would need to plead guilty to every count, and the government would insist on prison time.
Mr. Peters said he spoke to Mr. Heymann again last Wednesday in another attempt to find a compromise. The prosecutor, he said, didn’t budge.
Mr. Heymann didn’t reply to requests for comment Sunday.
With the government’s position hardening, Mr. Swartz realized that he would have to face a costly, painful and public trial, his girlfriend, Taren Stinebrickner-Kauffman, said in an interview Sunday. The case was draining his money, and he would need to ask for help financing his defense; two of his friends had recently been subpoenaed in the case. Both situations distressed him, she said.
The article also reveals that the Government (according to an anonymous source) was willing to offer a recommendation of 6-8 months in return for a plea:
In a superseding indictment handed up in September, prosecutors expanded the original charges to include 13 criminal counts that could have carried an even lengthier prison sentence.
The government indicated it might only seek seven years at trial, and was willing to bargain that down to six to eight months in exchange for a guilty plea, a person familiar with the matter said. But Mr. Swartz didn’t want to do jail time.
“I think Aaron was frightened and bewildered that they’d taken this incredibly hard line against him,” said Mr. Peters, his lawyer. “He didn’t want to go to jail. He didn’t want to be a felon.
Whether the Government’s settlement offer was reasonable probably depends on your view of Swartz’s conduct. Did he steal millions of dollars’ worth of valuable intellectual property (which the company just recently decided to give away for free)? Or was he an activist trying to make information free? Or something in between?
Here is Swartz giving a keynote address about SOPA:
It’s clear he was devoted to free speech — but a young man’s rather twisted and leftist version of free speech, in which participation in denial of service attacks is seen as “speech” rather than an attempt to silence speech. That’s consistent with what they teach at the schools, where shouting down a speaker is seen as an exercise of one’s rights rather than the denial of others’ rights to speak and be heard.
These disagreements aside, it’s a shame that he decided to take his own life.
By the way, the WSJ does not touch on an aspect of Swartz’s case that I blogged about yesterday. Namely: papers filed the day Swartz died revealed publicly that the Government had recently disclosed information that undercut one of the arguments they had been making in some significant pretrial motions. In an exclusive interview with this web site, Swartz’s lawyer described the Government’s arguments as “disingenuous and contrived.” At a minimum, the evidence disclosed after the motions were filed tended to undermine one of the Government’s arguments against suppression of key evidence in the case. If you haven’t read it yet, I think the post is worth your time.
UPDATE: Orin Kerr opines that the charges against Swartz were legitimate, assuming the truth of the factual allegations in the indictment. He promises a future post on the justice of the plea offer — but if he agrees with the charges, my guess is that he won’t see a 6-8 month offer as overbearing. I would be interested in his take on the suppression issues discussed in my previous post.