Carmen Ortiz, the US Attorney in Massachusetts, appears to be feeling some of the heat of the global anger over her prosecution of Aaron Swartz — an unrelenting prosecution that many (including the family) blame for his suicide. Ortiz is attempting to portray this abusive and unnecessary prosecution as prosecutors merely enforcing the law in compliance with their oath. They were, according to Ortiz, something akin to a legal version of Inspector Javert — committed to the enforcement of the federal law without discretion or judgment. Ortiz, who had remained silent, appears to have accepted that the case is presenting a serious problem for her and begins with a statement of sympathy that was entirely absent in the treatment of Swartz by her office and Assistant United States Attorney Stephen Heymann who has been linked to another suicide of a defendant.
Here is the statement:
January 16, 2013
STATEMENT OF UNITED STATES ATTORNEY CARMEN M. ORTIZ
REGARDING THE DEATH OF AARON SWARTZ
As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.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.
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.
It is always amusing to hear an Obama Administration official speaking of the obligation to prosecute federal crimes after President Obama promised CIA officials no one would be prosecuted for torture (a war crime as well as a federal crime) and the Justice Department was unwilling to bring a single charge — even for CIA officials who admitted that they destroyed evidence to bar prosecution. The Justice Department was unwilling to even bring bar complaints against attorneys facilitating the torture program. Yet, they had no alternative but to prosecute Swartz even though he downloaded academic papers later released free of charge and never had a financial or personal motive in his actions.
Her claim of an office struggling with its desire not to severely punish Swartz is belied by the evidence. First, asking for jail time was always an absurdly out-of-proportion demand and Ortiz admits that they insisted on jail time.
Second, her office ADDED CHARGES to the indictment rather than, as she suggests, seeking a sensible plea. The original indictment contained four charges against Swartz with a maximum potential jail time of 35 years. Her office issued a press released heralding their severe charges against Swartz as linked in the article below. Then her office piled on NINE MORE CHARGES with a maximum sentence of up to 50 years. In other words, the statement is at best misleading and at worse intentionally deceptive.
Moreover, reports indicate that Heymann was insisting on more severe punishment in any plea.
For the record, the US Attorneys manual stresses
“The statutory duty to prosecute for all offenses against the United States (28 U.S.C. § 547) carries with it the authority necessary to perform this duty. The USA is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.”
The entire prosecution was abusive and not only Ortiz but the Obama Administration was subject to criticism for months for their mistreatment of Swartz. They continued the prosecution because they had no sympathy or decency. However, when their prosecution became a global scandal, Ortiz and the Administration suddenly has portrayed themselves as reluctant — even tortured — public servants forced to prosecute this man. Ortiz should not be surprised if her “heartfelt sympathy” seems a bit forced and opportunistic after the public outcry. More importantly, such sympathy would be more credible if it were accompanied by greater veracity in her statement of the underlying facts of this case.
Source: TechDirt
“Javert did not end well.”
Bron,
You’re correct and the reason was he saw the truth that the honest pursuit of his life which was justice, was corrupted by a system without mercy or hope of redemption. He couldn’t live with the contradiction
Sorry, mespo.
I’m squarely with the Nal/Mike A. contingent on this one. Foreseeablity is not relevant to the outcome caused by a misuse of discretion although I’ll stipulate the actions of MIT were certainly a contributing factor in that abuse in the end the discretion is with the prosecutor.
“Does one really have the right to break the laws he disagrees with and suffer no consequences? Do we support him (and decry his prosecutor) because of some articulable rational basis or just because we like Swartz’s cause?
Does the force of the law apply to everyone or just people we don’t like?”
Mark,
As you know there is an old tradition of civil disobedience, which is the breaking of law perceived as unjust and yes then suffering the consequences.
Mr. Swartz was aware that there were consequences to his actions and indeed expected some retaliatory punishment. I decry his prosecutor not for prosecuting the case, but for purposely overcharging the case. Fifty years….really. A million dollar fine…..really. Now I understand that you might say this is merely standard procedure to obtain a pleas bargain and given today’s criminal justice system that is true. However, from my perspective the use of overcharging to obtain confessions via a plea bargain is a disgusting development that has entered into Criminal Law proceedings as a means of not only discouraging a defendant’s right to trial, but also of allowing prosecutions get away with cases where they may not have enough tangible evidence to be sure of conviction.
The issue is a imbalance of power between prosecution and defense. What we know of this case clearly shows Swartz was being.threatened and harassed and we know the ability of prosecutors to harass is almost endless.
While one can say the law, even if it is bad law, is the law and must be prosecuted is the principle, rather than the reality. Prosecutors constantly pick and choose between which laws they wish to enforce and who they wish to enforce them against.
“The kid did break in and steal 4 million documents that were someone else’s property. Those articles go for about $35.00 a pop.”
You can characterize it in dramatic elements that emphasize criminality like “break in” and “steal”, thus shading it with gross criminality, yet the facts are that at the center of this case is copyright infringement. The only reason the government is involved in what has always been a matter of Civil Law, is that industry lobbyists have pushed to have it criminalized in order to shift the financial burden of civil enforcement to the government. We have often discussed here the over criminalization of our legal system with crimes that shouldn’t be on the books. The essence of this prosecution was the thrust of an overall government initiative to protect the interests of a certain corporate segment.
This is a very sad case and I do believe that that Mr. Swartz knowingly broke the law and as Mike A. suggested, it was a type of civil disobedience action. If you break the law and you are not a banker or a corporate “person”, you have to expect to pay a price. I think the real devil in this situation is MIT which could have made this all go away by not pressing charges. Especially in light of the fact that they released the documents to the public after the fact.
If the prosecutor misled the defense attorneys and the public with her latest statement, then she should be disciplined.
Look at DOJ’s Office of Professional Responsibility. DOJ sent out an email announcement recently saying they were going to fix OPR but they haven’t. OPR is supposed to be governed by Code of Federal Regulations 28 0.39 but I think that isn’t even referenced on the OPR website. That supposedly requires them to investigate complaints. On the OPR website they have an annual report showing that they supposedly investigate a couple of complaints of violations of duty of candor towards the tribunal — from rule 3.3 of the Rules of Professional Conduct.
I complained to OPR that DOJ assistant U.S. Attorney David C. Rybicki misquoted DOJ’s Notices of in the Federal Register on three different dates in three different documents two of which were motions to dismiss and therefore that he committed the felony of 18 U.S.C. § 1506 – Theft or alteration of record or process; false bail. I was very specific:
1) In DDC 09-0562, Rybicki wrote on page 23 of doc 8-1
“The PTS is maintained to capture all information necessary to complete the administrative processing, housing, safekeeping, health care, and disposition of individual federal prisoners who are in custody pending judicial proceedings”
The Federal Register for the PTS (Prisoner Tracking System) uses the phrase criminal proceedings not judicial proceedings but Rybicki went on to argue that the PTS doesn’t require a criminal proceeding. see Federal Register Vol. 69, No. 82/April 28, 2004 P. 23214
2) On page 10 of Doc 16-1, DOJ’s motion to dismiss 11-01032, DOJ (Rybicki) pled that the Federal Register notices say that “JABS [the Joint Automated Booking System] is NOT limited to inclusion of records that were created incident to arrest for a ‘criminal charge'”
we filed back
“the Federal Register [notices for JABS] in 2001 and 2006 …list the “categories of individuals covered by the system” as “alleged criminal offenders who have been detained, arrested, booked or incarcerated.” In the footnote we wrote “Federal Register Volume 66, Number 78, 20478-0481”
In DOJ’s response, document 31, page 3, Rybicki wrote “Nothing in that Federal Register Notice states, as Plaintiffs erroneously claim, that the JABS must be used only to process individuals arrested for criminal offenses”.
So I filed in Court that this was a crime and now there is a question as to whether I can even get my timely Rule 52b motion docketed.
I wrote to Robin Ashton and complained and she wrote back that she was assigning my complaint to a senior investigator William Birney. Then he emailed to me “it is the longstanding policy of the Office of Professional Responsibility (OPR) to decline to investigate litigation claims that have been raised, could have been raised, or still may be raised in litigation.”
I filed an FOIA to get a copy of where that policy is recorded and they didn’t even acknowledge my FOIA.
I search on USDOJ.gov for 18 U.S.C. § 1506 – Theft or alteration of record and couldn’t find any record that they ever prosecuted or investigated anyone for that.
In my case there was a record of false bail too — I didn’t have a bail hearing and didn’t get an order issued under 18 USC section 1346 but DOJ entered non-existent charges that I violated bail conditions into the NCIC and they confirmed those charges and emailed that I should be arrested for that. DOJ also entered nonexistent criminal charges into the WI PTS records and then they twice withheld that record while claiming they had released all the records on me.
Don S, I believe the answer to your question is no. Although I rarely handle a criminal matter, my experience is that overcharging is a fact of life. Most prosecutors are also politicians who are not above using their positions to enhance their future prospects.
To Jonathan Turley’s point – why didn’t the Bush OLC attorneys get prosecuted? They more than anyone knew they were committing war crimes! Think this is what they term a Kangeroo Justice System.
http://www.guardian.co.uk/commentisfree/2013/jan/16/ortiz-heymann-swartz-accountability-abuse
Mike A., I’ll just address one part of your statement:” However, the moral force behind this type of act originates in the willingness of the actor to accept the legal consequences as part of his witness.”
This is true I think. Though I don’t think these severe charges could or should have been predicted, and I DO think the suicide, from what we are finding out, could have been.
But to the point on accepting consequences: does this mean that the prosecutor should retaliate with all the force available, or pursue a reasonable course under the law? If the prosecutor engages indeterrence-based action with the larger agenda of discouraging a whole politically based movement (not to mention prosecutorial ambition), is this proper legal behavior, or is it use of the judicial process for patent political ends?
“Not since the civil right’s era do you usually find a body swinging from a rope to punctuate how far off the rails justice has gone. In this case we do.” (DonS)
Right on target.
It’s time to stop enabling these people. Their ambition is not healthy, it’s a disease. And let’s stop kidding ourselves … they are chosen for these positions by those who recognize their ambition for what it is and know exactly how to manipulate the disease.
I think his suicide was predictable. There are many suicides of people facing prison time and from what I read DOJ knew he had expressed depression. DOJ basically wants people to commit suicide. The only reason why Ortiz is “speaking out” is that there has been so much publicity. I think DOJ employees have tried to get me to commit suicide.
I believe that the controversy surrounding this prosecution is in large part due to the fact that the crime was really political in nature, a form of civil disobedience intended to make a public statement about freedom and the internet. Therefore, there is strong disagreement among members of the public concerning whether the prosecution should have occurred at all. However, the moral force behind this type of act originates in the willingness of the actor to accept the legal consequences as part of his witness. Think of the Catonsville Nine. But that element appears to be lacking in this case, and the tragedy is enhanced because Mr. Swartz apparently suffered periodically from bouts of depression. Was the U.S. attorney’s statement self-serving? Yes. Could the suicide have been predicted? No.
The technical background:
All of this was done because they would not allow him to take a short amount of time downloading en masse as he wanted to.
The JSTOR rules required instead 3.8 years to download all of those files.
The closet entering episode is more likely, in and of itself, state law tresspass, not state law breaking and entering.
This is not something that 35 years in prison for felonies fits.
A reprimand and restriction from access to the JSTOR account and the MIT network for some time seems more reasonable IMO.
mespo: “Those are some pretty serious charges [She was dead set on destroying Swartz life] that I don’t see supported by the facts”
——————————-
Yes, very serious charges, and maybe not provable to the usual exacting legal standard. But get her before a special grand jury, as well as Heymann, and put all their minions under oath and you might be surprised. And the principles themselves might just squeal like a stuck pig about the guidance and coordination with central DOJ if they’re left swinging in the wind. I wouldn’t count on it though; it would depend on how well the higher ups could insulate themselves from blowback and find cushy sinecures for the perps. They’ve done that very successfully with regard to torturers and human rights abuses. .
———————–
Ah yes, “intentional wrongdoing” vs “abuse of discretion”. Maybe just enough distinction to keep her from being disbarred.
But, you know, when you’ve been watching the abuse of democracy and the manipulation of the legal system by the PTB for 50 years or so, you can just smell the rot, and smell the corruption, and smell the ethical discrepancies. Not since the civil right’s era do you usually find a body swinging from a rope to punctuate how far off the rails justice has gone. In this case we do.
mike spindell:
Javert did not end well.
http://www.forbes.com/sites/timothylee/2013/01/17/aaron-swartz-and-the-corrupt-practice-of-plea-bargaining/ Posted by AP 1/17.
““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.’
http://www.huffingtonpost.com/2013/01/17/aaron-swartz-prosecutor_n_2492652.html
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!
Mark, I disagree. JT’s characterization of Ortiz as “Javert” is actually more than fair. In truth he actually gives her more credit than she deserves. Javert was an honest man who believed that his only option was enforcing the law to the letter. Ortiz, history is of a political climber who enforces the law when it is to her personal benefit.
Pro Se Plaintiffs (without attorney) can file civil lawsuits, should they be able to file criminal cases – since the DOJ can’t prosecute petty things like international war crimes?
Our multi-tier “justice” system in action. Immunity and reward for the elites’ and politicians’ major crimes, and full-throtle prosecution for minor crimes for the unconnected.
Dredd:
He did like the Fountainhead.
(My goodness … it would appear she has more sympathy for the Swartz family than even her husband possesses.)
Poor, misunderstood, little Buttercup. Too late for Ralph though … he died in the ship’s dungeon.
That’s all this was. A production mounted by Ortiz as a vehicle that would carry her to the governor’s chair. She was going to be a star.
Smash!
As for Heymann … oh well, going to have to find another vehicle to prove he’s just as tough as daddy.