Bob Swartz said his son was innocent under the law and dismissed the notion that his son had a depressive personality. "He had never been diagnosed as having depression; he was never on medication for having depression," Swartz said.

Aaron Swartz's mother had been hospitalized in December 2011 after having a bowel obstruction and going into septic shock, Bob Swartz said. She spent several weeks in a coma, four months in intensive care, and two more months in the hospital. "So the notion, the narrative that people are going to say -- is that he’s somebody who just has depression -- is just wrong. You’d be depressed too if you were under a 13-count federal indictment and you go see your mother, who’s in a coma."

Wednesday, Ortiz issued a statement defending her office's handling of the Aaron Swartz case. After expressing her sympathy to those who loved Aaron, she wrote:

I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.

What she doesn't say is why her office insisted on a felony plea, which Aaron's lawyers have said was the stumbling block to a deal. If the Government was going to request a sentence of less than one year, and agree to allow his lawyers to request probation, why not agree to a misdemeanor?

Federal misdemeanors are defined as crimes carrying a penalty of up to a year in prison. If she was willing to recommend four to six months, and not preclude his attorneys from asking for probation, why not let him plead to a misdemeanor computer fraud offense, like 18 USC 1030 (a)(2) which applies to:

(a)(2) [Whoever] intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains-- [c] information from any protected computer;

Especially since Ortiz admits the Government had no evidence "he committed his acts for personal financial gain", why wouldn't the equities of the situation make that a just result?

The penalty for a violation of this section:

(2) (A) except as provided in subparagraph (B), a fine under this title or imprisonment for not more than one year, or both, in the case of an offense under subsection (a)(2), (a)(3), or (a)(6) of this section which does not occur after a conviction for another offense under this section, or an attempt to commit an offense punishable under this subparagraph;

Subsection B bumps the crime to a felony in the following instances:

(i) the offense was committed for purposes of commercial advantage or private financial gain;
(ii) the offense was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State; or
(iii) the value of the information obtained exceeds $ 5,000.

It seems to me that the Government could have stipulated damages were too speculative to be readily provable that they exceeded $5,000, and foregone the felony. Especially since JStor, the victim whose material was downloaded, said at the time of Aaron's arrest it was not interested in prosecuting Aaron:

We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office. It was the government’s decision whether to prosecute, not JSTOR’s. As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter.

Also, why were prosecutors insisting on a plea to all charges, rather than just one? The sentencing guidelines encompass all relevant conduct and in the event of a plea, the Government wasn't objecting to a sentence within the range of one misdemeanor count. Here is AG Holder's 2010 Memo on Charging and Sentencing ( which revoked the 2003 memo of John Ashcroft and memos by Deputy AG James Comey.) Holder invokes the phrase “individualized assessment” four times and “individualized justice” once in the memo. He also says, “equal justice depends on individualized justice, and smart law enforcement demands it.” And, Holder points out:

[C]harges should not be filed simply to exert leverage to induce a plea"

Swartz' attorney Elliot Peters told the LA Times today:

[the Prosecutor] said Swartz could either plead guilty to 13 felonies and agree to a four-month prison sentence, or plead guilty to 13 felonies on the condition that prosecutors ask a judge for a six-month sentence, and maybe Swartz could get less.

If the case went to trial and Swartz were convicted, Peters said, prosecutors said he would face a sentence greater than seven years. "I said to them, 'How about a misdemeanor and probation?' And they said, ‘We will never not be seeking a prison sentence in this case.'"

Who to believe on the plea negotiations? Three nationally acclaimed defense lawyers who represented Swartz at different stages over the last 18 months, all of whom describe similar stances of the prosecutor, or a prosecutor now under fire? Based on my experience, and because I know two of the three defense counsel, I believe the defense. But I suspect the answer can also be found in the e-mail exchanges between the defense lawyers and prosecutors, although unless there's a lawsuit or independent investigation, I don't expect they will all come to light.

Also weighing in: Retired Mass. U.S. District Court Judge Nancy Gertner, who says Aaron should never have been charged. On the other side, law Professor Orin Kerr has two posts up, one defending the charges and one on prosecutorial discretion. While I view the validity of the charges differently than Orin, I appreciate his thoughts on the need for reform of the statute contained in his second post, and the need for a greater margin to jump the offense from a misdemeanor to a felony.

Orin calls for the felony threshold to be made higher. He knows a lot more about the computer fraud statute than I (or most lawyers) do, but I think it's not just the amount of the threshold that's the problem, but that the concept of "value" in these cases is too vague and speculative to be used at all as a distinguishing feature. Orin believes the $5,000. threshold would easily have been met in Aaron's case, based on a 6th Circuit case, U.S. v. Batti. Batti involved a videotape, where the court used the cost of production as the measure of value in finding the $5,000. threshold had been met. But the Batti court also noted the absence of a statutory definition of the term “value” in this context and an absence of interpretive case law.

Section 1030 of Title 18 contains no definition of the term “value,” as used in 18 U.S.C. § 1030[c](2)(B)(iii), however, and § 1030 does not otherwise indicate how a court should determine whether the “value of the information obtained exceeds $5,000.” 18 U.S.C. § 1030[c](2)(B)(iii).

We hold that the district court's use of the cost of production here was a reasonable, and therefore permissible, method by which to determine the value of the information obtained by Batti. We recognize, however, that, given the broad nature of the statute, violations of § 1030(a)(2)[c] may arise in many different contexts. We therefore express no opinion regarding either the propriety of other methods by which to calculate the value of information obtained under 18 U.S.C. § 1030(a)[c] and [c](2)(B)(iii) or the applicability of the method we approve today to dissimilar factual circumstances.

It also referred to the method of production being a reasonable method of determining value "whether this determination is being made by the district court in a bench trial or by a jury." But what if there's no trial and the parties stipulate to a different measure, or stipulate the case represents an instance where proving value is too speculative? The Batti court didn't say the judge in that instance should substitute his own view for that of the parties, if the parties' view was a reasaonable one and there was no definitive answer.

Given the paucity of case law on value, I don't see why the prosecutors in Aaron's case couldn't justify dismissing the felony charges in the Indictment and filing a misdemeanor information. I think they could have, they just didn't want to.