Some have blithely said Aaron should just have taken a deal. This is callous. There was great practical risk to Aaron from pleading to any felony. Felons have trouble getting jobs, aren't allowed to vote (though that right may be restored) and cannot own firearms (though Aaron wasn't the type for that, anyway). More particularly, the court is not constrained to sentence as the government suggests. Rather, the probation department drafts an advisory sentencing report recommending a sentence based on the guidelines. The judge tends to rely heavily on that "neutral" report in sentencing. If Aaron pleaded to a misdemeanor, his potential sentence would be capped at one year, regardless of his guidelines calculation. However, if he plead guilty to a felony, he could have been sentenced to as many as 5 years, despite the government's agreement not to argue for me. Each additional conviction would increase the cap by 5 years, though the guidelines calculation would remain the same. No wonder he didn't want to plead to 13 felonies.And:
It is also true that in my criminal law career, I found the U.S. Attorney's office in the District of Massachusetts particularly immoral. In one case, I was told that if my client failed to enter a plea that day, the prosecutor would supercede and add embarrassing pornography charges to my client's computer crime case based on materials allegedly found on his hard drive but never disclosed to me in discovery. Similarly, that office sought to imprison a man for collecting user emails to compile a list of best-selling books, despite the fact that the email collection would have uncontroverably have been lawful had it occurred a nanosecond later. (U.S. v Councilman).
So, as Granick explains it, it's worse even than we've been led to believe so far.
If you're charged with 13 felonies in federal court and manage to get yourself acquitted from twelve of them --- meaning, in essence, that 92% of the prosecution's claims about you were false --- not only do those acquittals not damage the credibility of the prosecution at sentencing, but because sentencing is based in part on "relevant behavior" not heard at trial, those 12 acquitted charges can come back on you.
But wait, there's more! Sentencing for fraud charges in general and computer fraud in particular is based on a lower burden of proof for the prosecution than conviction is. In sentencing, the prosecution need only establish a "reasonable" estimate of losses, backed by a "preponderance of the evidence". The prosecution is thus free to look at the "costs" of dealing with all 13 of the charges and to come up with some plausible story to turn a few months into years.
This is batshit. If you've committed a felony with a computer, you committed a felony with a computer; the idea that we should scale sentencing based on whether you punched the number "8" or "2048" into the for() loop that got you caught is insane. If crime victims need recourse to make themselves whole for the damages a felony caused, that's what civil courts are for.
And:
It is also true that in my criminal law career, I found the U.S. Attorney's office in the District of Massachusetts particularly immoral. In one case, I was told that if my client failed to enter a plea that day, the prosecutor would supercede and add embarrassing pornography charges to my client's computer crime case based on materials allegedly found on his hard drive but never disclosed to me in discovery. Similarly, that office sought to imprison a man for collecting user emails to compile a list of best-selling books, despite the fact that the email collection would have uncontroverably have been lawful had it occurred a nanosecond later. (U.S. v Councilman).
So, as Granick explains it, it's worse even than we've been led to believe so far.
If you're charged with 13 felonies in federal court and manage to get yourself acquitted from twelve of them --- meaning, in essence, that 92% of the prosecution's claims about you were false --- not only do those acquittals not damage the credibility of the prosecution at sentencing, but because sentencing is based in part on "relevant behavior" not heard at trial, those 12 acquitted charges can come back on you.
But wait, there's more! Sentencing for fraud charges in general and computer fraud in particular is based on a lower burden of proof for the prosecution than conviction is. In sentencing, the prosecution need only establish a "reasonable" estimate of losses, backed by a "preponderance of the evidence". The prosecution is thus free to look at the "costs" of dealing with all 13 of the charges and to come up with some plausible story to turn a few months into years.
This is batshit. If you've committed a felony with a computer, you committed a felony with a computer; the idea that we should scale sentencing based on whether you punched the number "8" or "2048" into the for() loop that got you caught is insane. If crime victims need recourse to make themselves whole for the damages a felony caused, that's what civil courts are for.