Law, Integrity and Prestige Whoring
The shock of seeing Justin Peters name in the first sentence of George Washington Lawprof Orin Kerr's post at Volokh Conspiracy was jarring. Whether or not one agrees with Orin on any particular topic, no one would deny that he's a serious person with regard to law, and computer crime in particular. And here he was, touting some no-account slacker on the most serious and controversial (and grossly over-written) topic in computer crime in years.
Orin tipped his hat to Howard Bashman's How Appealing for the source. Bashman is a long-standing aggregator of law-related articles, having been firmly established well before SJ arrives in the blawgosphere. The content reflected there comes from main stream media, major internet media and a handful of blogs that have impressed Bashman as being sufficiently prestigious to be worthy of his notice. It hasn't changed much in the past five years that I've watched, and I can recall only one time SJ was ever mentioned there. I don't believe any of the other criminal law blawgs have ever been mentioned. (I have since been correct by Gideon that Bashman linked to him recently, and did so in the past, as Gid doesn't want anyone to think he isn't sufficiently prestigious.)
The Justin Peters article is very long and detailed. Surprisingly, it's quite well written, suggesting that he's a far better writer (or had a far better editor) than was reflected in his Slate Crime Blog work. Whether his content is accurate about Aaron Swartz's life can't be said, as I lack knowledge to opine whether he's captured the real story, myth or something else. But he repeats, early in the story, the accurate but irrelevant bit about the statutory max, waiting until the end of the article to mention that it bore no connection to the plea discussions.
From the aspects of the story about which I have some basis to opine, Peters didn't get it. Much of what he wrote about MIT was wrong, from misunderstanding what "hacker" means there to the open culture. But it's when he gets to the prosecution that things go seriously awry. Well written, but wrong.
After calling it a "very strong piece," Orin notes what he sees as worthy of a "small criticism":
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).
Despite this, Orin calls the post "excellent." Perhaps as a lifestyle piece, but not as an article about a prosecution that resulted in a suicide.
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:
"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.
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 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 that Orin knows this. I refuse to believe that he doesn't get how these things happen.
While the Slate post is long and detailed, and definitely far better written than anything I've read of Justin Peters before, it's unclear that it does anything more than perpetuate public ignorance and feed the myths surrounding this case and public's lack of understanding of how criminal law happens. That it comes from Slate, and more specifically from the hand of Justin Peters, doesn't surprise me. That a law professor of some renown would call it excellent, or that a respected, if stiff, aggregator would find this more worthy of inclusion than post from credible sources, makes me sad.
The problem, from my seat, is prestige whoring, and it's a problem that has become more evident with this case and its aftermath. There are the big guys on the internet and the small guys. For those of you unaware, the practical blawgosphere, meaning the part of the blogosphere that deals with law, is a tiny, inconsequential spot in an incredibly huge space.
There are a handful of "bigger" blogs that get the occasional notice from those outside the law space, such as Volokh Conspiracy and SCOTUSBlog, when their particular expertise is useful, and my sense is they adore the occasional recognition, perhaps too much. But the major sources of information, including Huffington Post, Gawker and, sadly, Slate, dwarf the blawgosphere by magnitudes.
While there doesn't appear to be much lawyers can do to compel the major players to give a damn and get their information right, as we reflect an inconsequential perspective of accuracy when they're only concerned with story and eyeballs, it's problematic when even those of us who are engaged in the blawgosphere, fighting daily to illuminate rather than make people stupider and help sell advertising, are so blinded by the prestige of the big boys that we demure on accuracy, and with it, integrity, and call crap "excellent" in the hope of getting a crumb or a nod. Are we willing to sell out that cheap?