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
raff, what were you assembling? I told you not to roll joints out where the po-pos can see you.
Mespo,
I needed you in May of 1970 when I was incarcerated, overnight in the Jackson County, Illinois jail for the charge of unlawful assembly!
To me the decision of Aaron Swartz to commit suicide seems really logical. From what I read it does not seem clear at all that the maximum jail time he faced was only 6 months. Plus, he faced bankruptcy and serious problems with future employment / professional reputation because of DOJ’s actions. And if he took the plea the bankruptcy and employment problems would not go away. It would have been difficult for him to start a company and sell stock too.
I also read recently that there is a lawsuit about the BOP’s refusal (I think it was BOP) to provide drugs and therapy to prisoners it is holding in solitary confinement or in 23 hour per day lock down.
From what I’ve read people who are serious about suicide choose hanging as their method of choice.
Plus, Swartz seems to have had strong opinions about public access to research and his suicide probably substantially advanced future public access to research and made his life significant and of service to others.
mespo:
we arent trained pilots, we are not military personnel, we dont have a security clearance. But we do use roads paid for by the tax payer, we use bridges and wastewater treatment plants.
But why not for things like art, scientific papers which arent dealing with defense or other security issues, etc. We get to use the Lincoln Memorial, the Washington Monument and the Smithsonian, I can also download papers from the FHA [federal highway administration] and the Navy and Corps of Engineers for free. These are good papers too, which I refer to in my practice for ideas and design methodologies.
In my opinion any intellectual property paid for by the tax payers which does not have national security implications belongs to the people for free or for a very small fee.
http://takingnote.blogs.nytimes.com/2013/01/18/aaron-swartz-and-prosecutorial-discretion/?hp
January 18, 2013,
Aaron Swartz and Prosecutorial Discretion
By LINCOLN CAPLAN
Did his prosecutors go too far? Did their zeal border on bullying?
“…there is no question that Ms. Ortiz went after Mr. Swartz very aggressively and that she had discretion to handle the case very differently.
The best informed account I have seen is by Orin Kerr, a law professor at George Washington University who is an expert in computer crimes. The two parts of his analysis are online here and here.
The legal charges in this case, he says, were “pretty much legit,” although he thinks the grounds for the basic felony charge of computer fraud are much too easy to meet.
“Some kind of criminal punishment was appropriate,” Mr. Kerr wrote, because Mr. Swartz was “intentionally breaking the law in the short run to achieve a long-run goal of nullifying the protections of a set of democratically-enacted laws that he opposed.” The proper sentence was “the minimum punishment that was needed to persuade Swartz not to do this sort of thing in the future”—which might have been probation, house arrest or some time behind bars.
Embedded in Mr. Kerr’s analysis was this critical observation: “What the prosecutors did here was what federal prosecutors often do.”
Prosecutors have discretion not to pursue this kind of case at all. But the discretion they often exercise is far at the other end of the spectrum. They go after defendants tooth and nail, overcharging them from the abundance of criminal laws with sentences so severe and out of proportion to the crime that, as now happens in 95 percent of criminal cases, the prudent choice is to cop a plea.
The Swartz case deserves singling out not only because of its tragic ending, but because the approach the government took is now the norm. For prosecutors, pursuing cases in this all-out fashion is their job. For defendants like Mr. Swartz, it is a brutal and dispiriting form of intimidation that hardly feels like justice.” (end of posting)
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“Did their zeal border on bullying?”(LC) If so, what impact did it have had on Swartz’s state of mind, given his history of depression?
Repeating Lincoln Caplan’s words:
“The Swartz case deserves singling out not only because of its tragic ending, but because the approach the government took is now the norm. For prosecutors, pursuing cases in this all-out fashion is their job. For defendants like Mr. Swartz, it is a brutal and dispiriting form of intimidation that hardly feels like justice.””
It doesn’t feel like justice… because it isn’t.
Dredd:
Your central assertion is that he did not “violate the law” because he only breached JSTOR’s policies. But whether an intentional violation of a policy/contract on a computer can constitute a CFAA violation is a question that has currently split several Circuit Courts and dozens of district courts. You’re stating your interpretation of a disputed area of law without even acknowledging the existence of another common interpretation.
One last, many times said.
“Linear logic” means to my engineering mind, recognizing that 1+1=2.
But more widely it can mean that one step follows the other, without the need for open-minded reasoning, or any insight or “outsight”. Defending a position changes to rigid resistance to offered facts, or to accepting the merits or even considering their merits.
The world is instead a non-linear system, which even physicists and engineers must accept and contend with. Read about a recent champion, Benoit Mandelbrot, who worked for IBM for years—–ironical but true.
Better take a look at Wiki entry “chaos theory”.
Some take one path and fight a useless battle following it, IMHO.
The Honorable Eric Holder
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Dear Attorney General Holder:
Like many Americans, I was saddened to learn last week of the death of Aaron Swartz. Mr. Swartz was, among other things, a brilliant technologist and a committed activist for the causes in which he believed – including, notably, the freedom of information. His death, at the young age of twenty-six, was tragic.
As you are doubtless aware, Mr. Swartz was facing an aggressive prosecution by the Department of Justice when he took his own life. The U.S. Attorney’s Office for the District of Massachusetts accused him of breaking into the computer networks of the Massachusetts Institute of Technology and downloading without authorization thousands of academic articles from a subscription service. While the subscription service did not support a prosecution, in July 2011 the U.S. Attorney’s office indicted him on four counts of fraud and computer crimes, charges that reportedly could have resulted in up to 35 years imprisonment and a $1 million dollar fine. This past September, the U.S. Attorney’s office filed a superseding indictment charging Mr. Swartz with thirteen felony counts and the prospect of even longer imprisonment and greater fines.
Mr. Swartz’s case raises important questions about prosecutorial conduct:
First, on what basis did the U.S. Attorney for the District of Massachusetts conclude that her office’s conduct was “appropriate?” Did that office, or any office within the Department, conduct a review? If so, please identify that review and supply its contents.
Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.
Third, what role, if any, did the Department’s prior investigations of Mr. Swartz play in the decision of with which crimes to charge him? Please explain the basis for your answer.
Fourth, why did the U.S. Attorney’s office file the superseding indictment?
Fifth, when the U.S. Attorney’s office drafted the indictment and the superseding indictment, what consideration was given to whether the counts charged and the associated penalties were proportional to Mr. Swartz’s alleged conduct and its impact upon victims?
Sixth, was it the intention of the U.S. Attorney and/or her subordinates to “make an example” of Mr. Swartz? Please explain.
Finally, the U.S. Attorney has blamed the “severe punishments authorized by Congress” for the apparent harshness of the charges Mr. Swartz faced. Does the Department of Justice give U.S. Attorneys discretion to charge defendants (or not charge them) with crimes consistent with their view of the gravity of the wrongdoing in a specific case?
I appreciate your prompt and thorough answers to these questions.
Sincerely,
JOHN CORNYN
United States Senator
Bron:
“I am sort of with Mespo and sort of with Dredd. The documents, at least some [most?], were developed using tax payer money; as such they should belong to the tax payers ”
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I’m not sure that being created at taxpayer expense entitles any taxpayer to have it for free. Lest that be true you and I could head on over to Langley this afternoon for pass around the field in our own F-22 Raptor!
DonS:
I agree that overcharging does not need to be connected to a suicide to be wrong. Certainly the prosecutor could be criticized for overcharging here even if there were no suicide, but is it fair to say she intended to harass him into suicide?
The most vituperative arguments here assert that the overcharging lead directly to Swartz’ s suicide and that was the intended and inevitable result. To make such a serious charge you need proof beyond, “Well, it’s obvious, isn’t it?”
It’s really not obvious.
I am sort of with Mespo and sort of with Dredd. The documents, at least some [most?], were developed using tax payer money; as such they should belong to the tax payers [the people] and JSTOR should not make $35.00 per download for storing a document of probably no more than a few megabytes when I spend $60/year for gigabytes of storage at Carbonite. What a gig that is.
These documents should be housed on a government website, like the Library of Congress or the National Archives, and should be accessible to all if they have been created using tax payer money.
I would imagine not all of those 4 million plus documents were created using tax payer money. In those cases he is guilty of stealing private property at least in my opinion.
“A man is not idle because he is absorbed in thought. There is visible labor and there is invisible labor.”
― Victor Hugo, Les Misérables
A poem, a play, a song, a book, a scientific paper belong to the creator and in the case of government funding to the tax payers. Intellectual property is property and has the same protections, or should, as tangible property.
Hackers cause a good deal of mayhem with business and private individuals and they increase the cost of products because of the money spent on internet security. My computer is my property and is housed in my home, in my opinion it is a violation of my rights to hack into my computer.
Most of these kids would not steal a candy bar from a 7-11 or knowingly damage a persons property or violate their person in real life. But they do it with abandon in cyberspace.
You do not violate individual rights in meatspace or cyberspace; if you do there should be consequences.
shano:
“Where is the proof that there is no “connection”?”
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Semper necessitas probandi incumbit ei qui agit,
The necessity of proof always lays with he who brings the charge.
I disengage.
Thanks to others, who perhaps were once engaged once upon a time were facing an immovable object in the form of a defense of drones.
No names, just an exemplification. No names, only words, which like others are found in the archive here.
Is this a defence of dominance, I ask as I exit for contemplation of my supper?
Good advice should be heeded. I shall.
DonS:
“Stripping away all your rhetoric and attribution of rationale to those of us who see gross misconduct at least, you come off as wanting to be the calm adult in the house and the rest of us are just emotional rabble rousers.”
************************
Read some of the commentary above about this prosecutor and you’ll see yours is fair statement. She’s a person too — as much as we’d like her to be a monster. She’s upset, your upset, hell, we’re all upset but the simple fact is that this kid got told “no” and proceeded anyway. Finding out, maybe for the first time, that his actions have consequences, he was stunned by the cold reality of it all.
That’s just one of the tragedies..
Mespo: “Where is the proof of connection between his suicide and the “overcharging”? ”
I don’t find that salient to prosecutorial abuse. I thought I alluded to that.
My own view of the connection comes from my reading of the psychological condition of Swartz, and about 30 years experience as a therapist which makes me petty tuned into what are called “stressors”. Swatz’ stressors were massive.
Where is the proof that there is no “connection”?
DonS:
One fundamental and simple question:
Where is the proof of connection between his suicide and the “overcharging”?
I don’t think anyone with any experience in the topic would deem the connection axiomatic.
Messpo727272,
Glad to hear from you. Seriously. You are one of the heavyweights here.
Being a union representative on a visit is not the same as being someone interned. Agreed??? But you were there. So did you not hear tales of dominance, sodomy, sadism.
This prosecutor is not my concern. The obvious corruption detailed here at JT’s by many blogs and even comments confirm that there is cause for worry over prosecutorial arbitrariness and its misuse previously discussed, not only in this blog, but many times. They have convinced me of the justification of the seriousness of the problem.
It is not just the sodomy, it is the abuse from/by others, over and above that which the sentence authorizes in loss of liberty.
You are there, so yours weighs more than mine in terms of evidence.
But my fears stand unrelinquished, a word I borrow from his memorial site.
You are welcome to say that I am overreacting. Others would and have said otherwise. When challenged, do you immy cast your opinions in concrete?
But you are indeed skillful today, as always. 🙂
Hope you don’t feel that this was meant as a snark. Your response to me was not done so. Peace and respect reigns, as far as I know.
You picked up the cast gauntlet. I aimed my thoughts and opinions at no one.
Mespo, “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. ”
Stripping away all your rhetoric and attribution of rationale to those of us who see gross misconduct at least, you come off as wanting to be the calm adult in the house and the rest of us are just emotional rabble rousers.
Post hoc rationalization is not needed to deduce any number of theories , including massive overcharging. I have upthread also pointed out the accumulation of consequences that result from felony convictions that far exceed the bare bones matter of sentencing. I’m not going to ignore those facts even if you do.
The prosecutors reasonableness was indeed not “without contest” as from what we know he played hardball to the max (“suicidal, eh, well we’ll put him in jail”, and stipulated that he was going to ask for 7 years minimum to be served)
As for calming down, the only one who needs to heed that is ID707 for health reasons. You can assert that we are operating by “whirling emotion and sympathy”, but that assumption is no more verifiable than your claim of “linear logic”.
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For me, Swartz’ suicide is not a necessary conjunction with the outrageousness of the prosecutions behavior, though I think the connection is pretty obvious. It has merely been the vehicle for amplifying the visibility, stripping away the nasty cloak of hypocrisy in the US attorney’s office and case. His death is tragic. The prosecutions mis or malfeasance stands starkly on it’s own and, but for the suicide , would like have simply slipped silently of the screen along with other miscarriages of justice. It has already been neatly eradicated in the popular media; down the memory hole like ‘yellowcake’ and ‘WMD’, mushroom clouds and too big to fail.