Justin Peters on Aaron Swartz

Writing in Slate, Justin Peters has a long, highly detailed, and quite balanced report about Aaron Swartz, his motivations, and his state of mind. It’s definitely worth a read if you’re at all interested in the Swartz case.

This is a very strong piece, although I’ll make one small criticism of it: In my view, Peters errs a bit in his reporting about the strength of the government’s case. For example, Peters doesn’t question the optimism expressed by Swartz’s lawyer that he had made strong legal arguments in his motions to suppress. From the motions I have seen, and the arguments referenced in the article, he hadn’t. Also, Peters’ conclusion that Swartz’s expert Alex Stamos had “a strong counter-argument” to the government’s case is overly generous in light of the relevant legal standard (which neither Peters nor Stamos explores in any detail). But with those caveats, Peters’ article is excellent. It sheds a lot more light on the facts than most of the reporting on the case. Thanks to How Appealing for the link.

UPDATE: Several bloggers have offered more critical coverage of the Slate story. First, defense attorney Scott Greenfield suggests that my criticism of the story’s description of the prosecution is too far kind — or perhaps more accurately, he harshly criticizes me for not criticizing it more. An excerpt:

If you can spend the time it takes to get to the end of the piece, there are some huge red flags that are neither recognized nor explained. Why, in this particular case, did this boy millionaire spend his fortune on his defense, to the point that he was forced to call friends to beg for financial support of his defense? Why was he on his third attorney at the time of his death? Why did he ultimately pick a lawyer from San Francisco to defend him? He was pals with Harvard lawprof Larry Lessig, but couldn’t find talent closer to home? He was beloved by so many, but couldn’t find anyone to handle a relatively small case for less than a king’s fortune?

Most disturbingly, Peters writes:

On Jan. 9, 2013, Peters called Heymann to discuss the upcoming evidentiary hearing. “Toward the end of it,” Peters recalls, “I said ‘Can’t we find some way to make this case go away?’ I remember saying to them, ‘It’s just not right for this case to ruin Aaron’s life.’ ” The prosecutor responded with a familiar refrain: the government would never agree to a deal that didn’t include jail time, and if Swartz was convicted at trial, they would seek a guidelines sentence in the range of seven years. As usual, the defense and the prosecution could reach no common ground. The case—scheduled to go to trial on April 1, barring further delays—would continue.

“As usual”? Plea agreements are the usual. Peters gets it completely backwards. I’m surprised Orin didn’t pick this up. The offer on the table was a few months. Elliot Peters (Swartz’s third lawyer and presumably no relation to Justin Peters, the guy who writes at Slate) was, according to the article, increasingly optimistic about his chances for suppression.

As for the prosecutor, Steve Heymann’s, response, it’s of the sort that defense lawyers shake off daily. This is the game of negotiation, trying to make disagreement more costly than agreement. Both sides play the game. Yet nowhere is there any mention of the fact that the government can seek anything they want, but judges sentence. So what if Heymann will seek seven years (even if it’s true)? And Peters will seek probation. I have to believe the Orin knows this. I refuse to believe that he doesn’t get how these things happen.

These are all good points. In my defense, the article is long and I was posting at 3am; I was more interested in the history the case than the accuracy of the reporting on the prosecution.

Some more points in a similar vein at Wired State.

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