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
shano:
“6 months,
a million bucks that he didn’t have (spent all his money defending himself already)
and did not want to earn (he was never motivated by money)
and a felon for life.”
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Would you consider off to bed early and no dinner for shutting down an entire campus computer system and thumbing your nose at the law?
Darren:
I guess we all start with the premise that anything you say is done to advance your cause. Even so, how do we ignore the fact that she shared the same concerns as we do about the possible disproportionate POTENTIAL maximum sentence and took steps to insure that would NOT occur? Is that the work of vindictiveness?
A prosecutor in Lapeer, Michigan says, “No harm, no foul,” after a charter school took the National Rifle Association’s (NRA) advice and hired a armed security guard who promptly left his handgun unattended in a student bathroom.
But by Wednesday, the school had admitted to The Flint Journal that the retired firearms instructor had made a “made a breach in security protocol” and left his unloaded handgun unattended in the school restroom “for a few moments.”
“The school has put additional security procedures in place that follow local law enforcement practices and guidelines,” a statement from Young said. “At no time was any student involved in this breach of protocol. We will continue to work on improving school security.”
The school director insisted that the incident had been reported to authorities, but said that any repercussions for the newly hired guard were “a personnel matter.”
Lapeer County Prosecutor Byron Konschuh expected that no criminal charges would be filed because no one was harmed.
He added that “[i]t’s almost like no harm no foul” because no students were injured in this case.
Raw Story (http://s.tt/1yDxq
So this security guy leaves a gun in a school bathroom, and because no one was hurt he is not prosecuted.
No one was harmed by Aaron either. he returned the documents. No harm no foul, right?
Dredd:
I don’t think you get to have it both ways. He either violated the law or he didn’t violate the law. You say it’s clear that he didn’t — merely a technical violation of JSTOR download policy.
However, If all is as you say, then Mr. Swartz had nothing to worry about and his suicide must then be due to some unfathomable defect in brain chemistry in his frontal lobes or some emotional pain unrelated to the unbuildable case (which surely his lawyers must have confirmed for him.)
And if all that is so, how could the prosecutor possibly be morally, ethically, or even causally responsible for bringing an unwinnable case against a defendant assured of victory due to the utter lack of merit of the case and whose injustice was obvious to all?
Sorry, Dredd but you argue your case much too well.
Victims don’t “press charges”. MIT didn’t “press charges”.
Concerning the US Atty’s Office’s statement:
One drawback to writing statements such as this in the manner crafted is they convey an undertone of Covering One’s Backside and being non-sincere in their sympathy for others. The style does not often resonate with ordinary people because it is not written in the same meter as letters of sympathy that are usually written by individuals.
The lack of sincerety and CYA is usually how I take these type of letters. These type of statements all sound alike, it is just the particulars that are different. It strongly conveys to me a statement arrived at by some group of spin doctors mulling over every word. It is very corporate like and just as impersonal. It is one thing to say you care, but quite another to actually do so more than your own interests.
While it may be intended to present a successful outcome in the legal world it works against the author in the court of public opinion.
Skillful (?) argumentation? Clear prejudices exposed. Immorals and personality shown also. No names, just characteristics shown by people.
But, WTF. this a place for celebrating freedom of speech, thought, etc.
I use it as I like. So can others. Within the borders of non-abusive speech, of course.
But as someone here said: Things expressed as facts must be subject to examination and eventual rebuttal. Opinions are opinions…..not facts unless proven. Haven’t seen any of the latter. Opinions and citation of statutes and abuse of the principles of justice…….lots of those.
Has anybody done any minimum security time?
Pronouncements as to what it is are therefore doubtful. Sodomy is but one, but a primary, way to express your dominance. If you are an open gay, the abuse must be even greater. I did not know anything about him AT ALL but his memorial site made that clear. Here minimum security is regarded as a prep school for a career in crime. Stats prove that. Probation under supervision works better, along with supportive programs.
http://www.rememberaaronsw.com/
Sobering reading for humans who thirst for truth. Not knowing of his sexual preferences helped me in judging his position in our system of injustice for all but the privileged, and the privileged get their bit in the form of non-prosecution.
Talk about enforcing an oath. Ha, ha.
He was used by the FEDs as an example for all those who appeal for our rights to information. Especially those who actively work for it.
Some wife needs to talk with a person lacking in self-insight at times.
messpo: 6 months,
a million bucks that he didn’t have (spent all his money defending himself already)
and did not want to earn (he was never motivated by money)
and a felon for life.
Well said Dredd. I do remember reading that Aaron changed his user name and got new passwords so he could continue to download when Jstor cut off his current id user. No crime there either.
ID707:
““six months in a low security setting…..”
Which translated means practically no restraint for RAPE, both orally and anally. So say some. Thankful for not having been there. Maybe suicide was a better choice.”
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Have you ever been in a low security federal prison? I have while representing the guard union. You have little to fear from accountants, lawyers and other white collar criminals placed there. It doesn’t mean lax security. it means low level security risks are housed there.
Calm down. Every prosecutor isn’t an ogre and every defendant isn’t Martin Luther King,Jr. in the Birmingham Jail.
Mike S:
My problem with all this hyperbole is that we’re operating and rationalizing backwards and then basing it one unproven assumption. First, we look at the young man’s suicide (not his actions) and presume it was due to the overcharging. I say “overcharging” because I guess no reasonable person would conclude that some charges weren’t appropriate. Knowing he committed suicide and that we think it was because of the “overcharging” we then look to vilify someone for the charges. The obvious person is the prosecutor who without contest asked for a reasonable result. The case was presented to us as being one where the maximum sentence was requested. Facts have proven that to be untrue and I have no problem with a 6 month sentence in minimum security (it’s like a dorm) for this egregiousness Robin Hood-like offense.
As I said, this is not linear logic but whirling emotion and sympathy. Something we decry when the other side does it but are oh so willing to excuse when our ox is in the fray.
Ortiz and Heymann will always be dependent on and manipulated by enablers. It’s the nature of the beast.
mespo727272 1, January 18, 2013 at 11:36 am
Dredd:
…Do you disagree that the kid intentionally and purposefully broke the law?
The law he broke, from my reading of the indictment, would be misdeameanor trespass if there was fair warning by signs on the door of the basement closet or elsewhere to give notice.
The indictment does not even allege “breaking.”
So, punishment for that offence would not be unjustified in state court, if they prove facts beyond a reasonable doubt required under the state trespass statute.
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He had no right to those documents in the way they were procured and he did, in fact, break in by being in a non-pubic area without permission and opening that closet door.
He had every right to each and every document.
The way he procured them was a violation of JSTOR download policy, but punishment for that is something JSTOR administers, not BIG BROTHER.
The indictment does not say anywhere that he “broke in” to the closet, so the state charge of misdemeanor tresspass would be a valid prosecution if they can prove that trespass under state law happened.
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He said he had a moral imperative to break the law and thus his intent can’t really be questioned.
He had no intent to enter the closet until the final episode.
JSTOR granted him access rights to all their documents, MIT allows its network to be used by guests.
JSTOR disallowed further access from the laptop when he downloaded more than one document at a time.
That improper download does not violate federal law, it violates JSTOR download policy, and they did their typical reaction to stop it.
Revocation of his access rights would be a more fitting result than BIG BROTHER coming along to bully him out of his mind.
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Does one really have the right to break the laws he disagrees with and suffer no consequences?
What law did he break when he accessed files he legitimately has access to? No law.
What law did he break when he tried to use software that did multiple downloads instead of one at a time? No law.
What he violated was JSTOR one-file-at-a-time download policy, not federal boogie man law.
He may have violated state law concerning trespass by entering the closet, however, I would have to know the facts about any warning not to go there:
The statute requires notice before trespass will lie, and the penalty is not to be bullied out of one’s mind.
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Do we support him (and decry his prosecutor) because of some articulable rational basis or just because we like Swartz’s cause?
JSTOR has the right to set their own download policy, however ignorant it may be, but I would not call it rational to charge him Mickey Mouse style with felonies that would bully scare the hell out of even a mafia figure.
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Does the force of the law apply to everyone or just people we don’t like?
The force of the law is its clarity and sensibility, the force of tyranny is bullying under the guise of law.
I think Mark does bring up some good points for run of the mill prosecutions where the punishment is more commensurate with the violation but in this case I belive it was more of a railroading of this individual and that is as Otteray Scribe wrote in another thread one of the reasons this young man likely felt hopeless and that he did not deserve what happened to him due to the punishment being so overwhelmingly out of scope with the violation alleged.
Prosecutions have been used occasionally to silence people or to attack them outside the scope of what is standard in the criminal justice system, such as Timothy Leary’s 30 year prison sentence for his Marihuana conviction and others such as this.
Aaron Swartz’s public memorial service planned for Saturday
The Internet activist’s loved ones will hold a service in New York City this weekend to celebrate his life.
by Donna Tam
January 18, 2013
http://news.cnet.com/8301-1023_3-57564727-93/aaron-swartzs-public-memorial-service-planned-for-saturday/
Each and every prosecutor swears (or affirms) a supreme oath of office “to preserve, protect and defend the Constitution of the United States”. This oath supersedes any other loyalty and includes the Bill of Rights due process of law. So why does prosecutorial misconduct not void Sovereign Immunity protections for prosecutors? Unconstitutional actions are not official government business.
An ironic note to end on:
Minority persons (be they Sct justices or Federal prosecutors), having been allowed to join the majority and controlling faction, MUST toe the line OR suffer the consequences.
True even for WASP etc participants—–but how even very much so for the newly admitted minority person.
Is Obama an example of this factor, or just a pol like all others?
Although derived from the position of another post, in the spirit of peaceful exchange of ideas, no name will be mentioned. It is the position, not the person that disturbed me.
How, in the face of all the many examples of blatant arbitrary (policy say some) “persecutions” and those equally obvious violations of the duty to prosecute egregious crimes by others, (take a breath), it amazes me that one claims that the practice of the DA is not given space for judgement.
Talk about talking before thinking, or is it reflexive in all of us, ie speaking as our prejudices dictate.
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OTOTOT
Just so you know, it is the hospital which has kept me away, and my attentions will be on maintaining my health, not visiting the exciting JT-world often.
No stress say the docs, take your medicines and modify as told as needed. Talk about being told not to think about elephants (ie not to stress with distressing thoughts).
Like when the nurse comes in, places her hand on your belly, and says: “Think of something else, I’m going to see how often you take a breath during a minute.” Try that. It can be done if you can think of something pleasant—not an easy task for a patient.
“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 in deterrence-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?”
DonS,
Asks a very pertinent question. My own answer is that this is improper legal and a misuse of the judicial process for political ends in support of relieving an industry of the burden of the cost of using civil jurisprudence.
As I scrolled by most comments, as yet, unread, this hopefully is not an already used point.
A small but very painful point to the young man contemplating time:
“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.”
“six months in a low security setting…..”
Which translated means practically no restraint for RAPE, both orally and anally. So say some. Thankful for not having been there. Maybe suicide was a better choice.