Prosecutor of Aaron Swartz Linked To Another Suicide Of Defendant

600px-US-DeptOfJustice-Seal.svg DOJ220px-Aaron_Swartz_at_Boston_Wikipedia_Meetup,_2009-08-18_We previously discussed how the Justice Department hounded Aaron Swartz in a prosecution that sought 35 years in prison for his effort to make academic papers available to the public — even though MIT did not ask for such charges and later released the papers free of charge to the public. United States Attorney Carmen M. Ortiz and the Obama Administration were long criticized for the prosecution but remained committed to destroying Swartz — a move that clearly delighted copyright hawks that have tremendous influence over the Administration as discussed earlier. Given the high-profile nature of the case and the months of criticism, it is clear that Main Justice in Washington had to be monitoring the case. Now it appears that Swartz’s line prosecutor, Assistant United States Attorney Stephen Heymann was connected to a prior suicide of a defendant in a similar case. In 2008, Jonathan James killed himself while being pursued by Heymann in a criminal hacker case. Heymann then moved on to Swartz who also killed himself — complaining of the abusive treatment by the Justice Department. It is worth noting that the Justice Department could not come up with a single charge for anyone associated with the torture program, including the attorneys who facilitated the program. However, it wanted 35 years for a man accused of illegally gaining access to a university site and downloading academic papers to make available to the public for free. Those documents later released for free to the public but the Obama Administration still felt jail time was essential in the interests of justice.

Heymann secured a record by making James the first juvenile jailed in a federal cybercrime case. James insisted in his suicide note that he was innocent but that the prosecutors would not leave him alone. He wrote “I have no faith in the ‘justice’ system. Perhaps my actions today, and this letter, will send a stronger message to the public. Either way, I have lost control over this situation, and this is my only way to regain control.”

Heymann received the Attorney General’s Award for Distinguished Service for “directing the largest and most successful identity theft and hacking investigation and prosecution ever conducted in the United States.”

Heymann is accused by a lawyer of using the Swartz case as a high-profile opportunity for himself and refused to accept a plea that did not involve a confession to all counts and a guarantee of prison time.

The Swartz case remains a serious concern with many of us. The extreme sentence sought in the case is troubling for an individual who was an advocate for public access and did not have a financial motive in his actions. He was a long-standing critic of the Obama Administration for its treatment of information under copyright and trademark laws as well as President Obama’s “hit list” policy.

Of course, it is doubtful that any serious investigation will come from the controversy. The Justice Department is notorious for whitewashing such controversies and the Administration has long followed the directions of industry and lobby groups on these laws, including criminalizing copyright violations. Both Congress and the White House have repeatedly yielded to increasing penalties and power for these groups. Swartz is simply the latest victim of this trend. Thousands of less well known citizens have been pursued for ruinous damages or criminal charges.

Source: Buzzfeed

91 thoughts on “Prosecutor of Aaron Swartz Linked To Another Suicide Of Defendant”

  1. Let’s see, prosecute a crime with no victims or banksters that left thousands of families destitute, …decisions,… decisions. When they say justice is blind, does that also go for no sense of priorities?

  2. so basically what I am trying to get at is that Lloyds sold prosecutor’s insurance in Colorado without state or federal regulation (violating the McCarran Ferguson Act), that I have proof of that because Hall & Evans filed a verified bill to Lloyds, and that because I challenged how Lloyds managed the prosecutor’s insurance, I was imprisoned based on a fax that I was a wanted federal felon, even though I wasn’t charged with a felony and there was no grand jury, which is required for a federal felony charge. I’m trying to create a public record documenting this even if I am killed and my computer is broken.

    There are emails to and from the Colorado Division of Insurance about Lloyds prosecutor’s insurance in a file of exhibits in the DC Court of Appeals 10-5149 and there are also some in the District of Columbia 09-0562, both available on PACER.

  3. NOTICE that the Colorado Dept of Regulatory Agencies does not show Records for Lloyds of London, Beazley, Mutual Insurance based in Hamilton Bermuda, or TIG Insurance by Plaintiff Kay Sieverding. Actually titled Motion for Judicial Notice. (Attachments: # 1 Duplicate Notice)(pap, ) (Entered: 03/27/2007)

    This is PACER District of Colorado 02-1950 document 1001

    MOTION for Order to Restrict and Reject Future Filings By Kay Sieverding filed by Defendants P. Elizabeth Wittemyer

    This is PACER District of Colorado 02-1950 document 1005

    MINUTE ORDER: A Motion Hearing is set for 5/11/2007 at 10:30 AM before Judge Edward W. Nottingham regarding 1005 MOTION for Order to Restrict and Reject Future Filings By Kay Sieverding.

    This is PACER District of Colorado 02-1950 document 1007

    Minute Entry for proceedings held before Judge Edward W. Nottingham : Motion Hearing held on 6/1/2007. United States Marshal shall release Ms. Sieverding from custody pending further proceedings.Granting 968 Motion for Reconsideration of Civil Contempt Proceedings ; Denying as Moot 980 Motion to Stay Contempt of Court Proceedings; Denying 995 Motion for Judicial Notice; Granting in part 1005 Motion to Restrict and Reject Future Filings by Kay Sieverding;

    This is PACER District of Colorado 02-1950 document 1023

    So basically what happened is that I complained to the State of Colorado that Lloyds in Chicago had sold prosecutor’s insurance to Wittemyer and I filed in Federal Court about this. Then the USMS sent a fax to the Dane County sheriff saying that I was a federal felony non bond hold, even though I wasn’t charged with a felony or a misdemeanor and even though a federal felony charge requires a grand jury. As a result I was detained as a federal prisoner for three weeks with no criminal charge and no bail hearing and taken to Nottingham in chains.

    The bill to Lloyds was part of the District of Colorado 02-1950 document 465. However, there were also attorney bills from Lettunich & Vanderbloemen that were in that file and those disappeared from the federal court files. The Lloyds bill was also filed in the 10th Circuit by Hall & Evans and is labeled AP-0517. The bill is sent to “underwriters at Lloyd’s London c/o Lord, Bissell & Brook, Attn: Walter Slezak, 115 S. Lasalle St. Chicago Il 60603 and says our file (Hall & Evans) 3368-110; your file CL#660313-1896

    This all happened before Nottingham was publicly exposed for his involvement with prostitutes. The itemized bills sent to Lloyds included a discussion of case assignment issues and then after that my case was transferred to Nottingham.

  4. It was in 1984 that the Supreme Court ruled that judges are immune from suit for damages and shortly thereafter that the Rules of Professional Conduct for lawyers were watered down.

  5. Since when has the truth been an issue in courts….. In most its just legal fiction…..

  6. The State of Colorado has insurance that is supposed to cover errors and misconduct by government employees. I was criminally prosecuted by a former Colorado state employee, Elizabeth P. Wittemyer. She did not write a statement of probable cause, violating the Rules of Criminal Procedure. I wasn’t arraigned, violating the Rules of Criminal Procedure. She altered a state form. She was not an independent prosecutor but stood to benefit financially because her husband is a real estate speculator and I was in a property dispute with the president of the city council who influenced the value and potential uses of real estate. The criminal summons and complaint was signed only by someone who was not a government employee, violating Colorado statute. Without an applicable statutory basis or discovery, a permanent restraining order was issued against me, based on the argument that there were criminal charges against me. That made me vulnerable to being arrested for violation of the restraining order and 18 months in jail any time I left my house, even if I was still in my yard.

    After 6 months of negative publicity, Wittemyer dismissed the criminal charges against me without having an oral hearing — again violating the Rules of Criminal Procedure, # 41 or was it 42, which requires an oral hearing when charges are dismissed. She then gave a press conference and said that I had a victim and there was probable cause but that a trial would be too expensive — She also refused to have a probable cause hearing.– thus violating my right to confrontation.

    This all cost me a lot of money, in addition to emotional distress, loss of reputation etc. I had to sell my house way below value and move my business.

    Even though the State of Colorado has insurance that should have compensated me I couldn’t even get state officials to talk to me about compensation.

    Furthermore, the City of Steamboat Springs Colorado purchased a $5 Million public officials errors and omissions insurance policy from Colorado Intergovernmental Risksharing Agency. When I called them, their examiner said that he found my name on their computer but had been told to hang up on me. It turns out that CIRSA pays less than 50% of their revenues in claims and don’t even report how much they pay because they lump it with administrative costs. In order to avoid a hearing in federal court, CIRSA arranged for me to be imprisoned by DOJ without a bail hearing, an evidentiary hearing, or a criminal charge. Recently I tried to get the City of Steamboat to evaluate an ordinance violation complaint form that on their website they claim they would do within 72 hours so that I could potentially go back to CIRSA but they refused to evaluate the form. The form that I faxed in compared the zoning to the description of my neighbors’ property that is on-line at Rout County Assessor’s Office. Meanwhile, my former neighbor admitted he s a convicted felon and the verified attorney bills from CIRSA show that the city attorney knew that at least in 2004.

    My problems had started when the City allowed my former neighbor to fence off and convert 6000 square feet of city owned land including paved street that adjoined and provided access to my land. That was a crime under state law. They allowed my neighbor Kevin Bennett who was at that time president of the city council to build two extra buildings that violated the zoning. That was a crime under city law. I was also extorted by the same parties. They charged me in municipal court with not having a trimming license. However, they didn’t even have trimming licenses and never issued one to anyone. I was threatened with 6 months in jail unless I gave up my rights to the end of the street and sold him land for $1, which I did. My husband complained to the police that it was felony extortion. The police went to the D.A. who said that it was not a crime to tell someone that they had to give up land and property access to get relief from a criminal charge or to charge someone with not having a non existent permit.

    So theoretically problems with prosecutorial misconduct could be mitigated through errors and omissions insurance but that won’t help unless there are decent claims handling procedures. CIRSA is classified by the Colorado Division of Insurance as a government entity but the Colorado AG filed in court that they were not a government entity and their lawyer Steven Dawes sent a letter to Chuck Plunkett of the Denver Post saying that CIRSA is not a government entity and therefore isn’t subject to the Colorado Open Records Act. In federal court the magistrate ruled that the public is not an intended beneficiary of CIRSA policies. If an insurance company is private under Colorado law it is supposed to report the ratio of claims paid to policy payments but CIRSA doesn’t do that. If an insurance company is a public entity under Colorado law it is supposed to report its claims handling policies but CIRSA doesn’t do that. A lawyer for the state sent me an email saying that he had arranged for all inquiries about CIRSA to be forwarded to him.

    Lloyds of London also sells prosecutor insurance in the U.S. That isn’t regulated except possibly if it is sold in Kentucky. I have advertisements for Lloyds U.S. prosecutor’s insurance and three pages of bills they paid in my federal lawsuit in which I sued the prosecutor for defaming me at a press conference and for instigating criminal charges without a written statement of probable cause.

  7. It should be perfectly clear to anyone who reads Ortiz’s statement that the woman is clueless as to the depth of her prosecutorial depravity. Thus there will be no change in her behavior as a prosecutor nor in the tactics of the office she leads. Rehabilitation is not possible for those who believe themselves to be infallible.

    Her statement is nothing more than a reaffirmation of the mindset that pushed Swartz to his grave.

    The woman has become a worldwide embarrassment,

    Fire her and be done with it.

  8. Additionally, even if the sentence were plea bargained down to minimum or even no jail time, the remainder of the original sentence that was forgiven still “hangs over” the felons head based on copious restrictions as to behavior and not reoffending. For a critic of the system like Swarz, who’s work in part revolved around challenging power, it would neuter such activity and/or virtually proscribe such action — basically subject to the authorities who would be continually looking over his shoulder during the term of his probation or parole.

  9. Sentencing is one thing. Labeling someone a felon for life is another, much less 13 felonies This effectively curtails an individuals future and stigmatizes his life. Losing the right to vote for one thing. Filling out job applications for another.

    Gaining restoration of rights is an onerous proposition as far as the procedures I’m aware of and discourages the vast majority of felons from even trying.

    This prosecution was out to destroy the life and reputation of Swartz as a scapegoat and example. His treatment in charging shows no leniency that would be expected for a first time offender.

  10. “But none of these rights matter if the defendant never gets to trial. And thanks to the legal fiction that plea bargaining is a voluntary negotiation between the prosecutor and defendant, our justice system effectively gives people dramatically longer sentences for exercising the right to have a trial at all.

    Thanks in part to this kind of coercion, more than 90 percent of defendants waive their right to a jury trial. For the majority of defendants, then, the plea bargaining process is the justice system. As a result, prosecutors wield an immense amount of power with very little accountability.”

    AP’s posting from Timothy Lee bears repeating. Plea bargaining is just one of the ills of our criminal justice system. It represents a lop sided negotiation with the Prosecution holding all of the cards. Since going to trial takes such a long time any defendant without means has to either face the tension of charges hanging over them, or in some cases extended jail time while they await trial. The “either/or” presented them is the threat of maximum punishment if they don’t agree to the deal. From a prosecutorial standpoint it is a disincentive to build the best case and find the truth of guilt. The threat alone of maximum jail time makes even innocent defendants willing to just end the tension as quickly as they can.

    Ms. Ortiz’ statement today shows the duplicity which Timothy Lee calls out:

    “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.”

    This key sentence above shows the problems with Ortiz protestations of good will:

    “Ultimately, any sentence imposed would have been up to the judge.”

    If Swartz had accepted the plea bargain he would have plead guilty and then the Judge could well have given him up to 50 years. For many Judges in our system today, imposing let’s say a ten year sentence, in lieu of a 50 year possibility would to their minds be deemed merciful and lenient. To someone, such as Swartz, the 10 years would seem like hell.

    Our justice system is broken in so many ways and while we must keep up the fight against the inequity and support the work of Jonathan Turley and many other brave lawyers, one could still feel despair at the prospect of it ever being reformed.

    Ms. Ortiz ended her statement with this:

    “As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.’

    I would translate that to mean” As prosecutors we must protect the interests of Corporations and Bureaucracies to control and benefit from the information available to average citizens. Decriminalize enforcement of
    of issues that should be decided by Civil, rather than Criminal Law!


    Timothy B. Lee, Contributor


    Aaron Swartz and the Corrupt Practice of Plea Bargaining

    Carmen Ortiz, the federal prosecutor who hounded Aaron Swartz in the months before his Friday suicide, has released a statement arguing that “this office’s conduct was appropriate in bringing and handling this case.” She says that she recognized that Swartz’s crimes were not serious, and as a result she 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.”

    That’s funny because the press release her office released in 2011 says that Swartz “faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.” And she apparently didn’t think even that was enough, because last year her office piled on even more charges, for a theoretical maximum of more than 50 years in jail.

    If Ortiz thought Swartz only deserved to spend 6 months in jail, why did she charge him with crimes carrying a maximum penalty of 50 years? It’s a common way of gaining leverage during plea bargaining. Had Swartz chosen to plead not guilty, the offer of six months in jail would have evaporated. Upon conviction, prosecutors likely would have sought the maximum penalty available under the law. And while the judge would have been unlikely to sentence him to the full 50 years, it’s not hard to imagine him being sentenced to 10 years.

    In this hypothetical scenario, those 10 years in prison would, practically speaking, have consisted of six months for his original crime (the sentence Ortiz actually thought he deserved) plus a nine-and-a-half-year prison term for exercising his constitutional right to a trial.

    Our Constitution guarantees criminal defendants a wide variety of rights, including the right to a jury of one’s peers, the right to counsel, the right to confront one’s accusers, a privilege against self-incrimination, and so forth. The Supreme Court would never allow a judge to impose a stiffer sentence on a defendant because he took the Fifth Amendment, asked to confront his accuser, or hired an attorney. But none of these rights matter if the defendant never gets to trial. And thanks to the legal fiction that plea bargaining is a voluntary negotiation between the prosecutor and defendant, our justice system effectively gives people dramatically longer sentences for exercising the right to have a trial at all.

    Thanks in part to this kind of coercion, more than 90 percent of defendants waive their right to a jury trial. For the majority of defendants, then, the plea bargaining process is the justice system. As a result, prosecutors wield an immense amount of power with very little accountability.

    It’s not surprising that Ortiz doesn’t see anything wrong with this system. Powerful people rarely see their own power as problematic. But the rest of us should be outraged—not just by Ortiz’s conduct, but by a system that treats thousands of defendants less famous than Swartz the same way.”

  12. Retired Federal Judge Joins Criticism Over Handling Of Swartz Case

    By David Boeri January 16, 2013

    ““And in the world of punishment, the prosecutor has enormous power and he has the enormous power to make you plead guilty and give up your rights,” Gertner said.

    This is where the judgment of prosecutors, and specifically the judgment of Ortiz, becomes a major issue, Gertner says. She learned on the bench that the power of prosecutors have increased because federal sentencing guidelines have decreased the powers of judges to exercise discretion.

    “So the prosecutor determines the charges and the punishment,” Gertner explained. “Again, once they start the process, once the indictment is brought, the potential for enormous punishment is there and although a judge has some discretion in sentencing, often what the prosecutor wants is what the person gets.

    “When that happens the prosecutor has enormous power and has to exercise that with some degree of fairness and judgment at that end,” she added.

    And this is what Gertner says Ortiz lacked in the case of Aaron Swartz. If the government was willing to recommend four months in prison, Gertner asks, why not two years in a diversion program which would have suspended and dropped charges if he committed no crimes during that period?

    “We don’t wreck your life with a criminal prosecution if we think this kind of attention drawn to what you did is all we need to do,” Gertner said.”

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