The Obama Administration’s Inspector Javert Speaks: Ortiz Issues Statement In Swartz Case

Carmen-Ortiz-144x150180px-JavertCarmen 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
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

186 thoughts on “The Obama Administration’s Inspector Javert Speaks: Ortiz Issues Statement In Swartz Case”

  1. Ralph Adamo,

    Spinning further Mike A’s comment:

    Ralph seems to attractive to a task such as Sisyphus was forced to, as it suits his non-working serial mind which is not engaged at all.
    It allows him to to stonk and talk contiuously, have max visibility, and what all trolls desire—–Max attention.

    Sunlight won’t make him go away, as he is a “black hole” troll.
    Great arguments which he comes with, they could reversed in all parameters and function eqully well for him.

    Back to bed. 6 AM. It was not a warning device which sounds when Ralph enters the scene.
    The subject, although very topical, will not be revealed, as don’t want to challenge fate by revealing it. I think that similar nightmares are occurring to many others at this time.

  2. Retired Federal Judge Joins Criticism Over Handling Of Swartz Case
    By David Boeri January 16, 2013

    BOSTON — A prominent retired federal judge is adding to the chorus of criticism of U.S. Attorney Carmen Ortiz following the suicide of Aaron Swartz last Friday.

    Ortiz’s prosecution of the acclaimed Internet activist for hacking has drawn harsh comment from newspaper editorials, online users and a petition to the White House with 35,000 signatures.

    For 17 years, Nancy Gertner sat as a federal judge here in Boston. She says she was troubled by much of what she learned and saw from the bench before leaving in 2011. And she says Ortiz should not have prosecuted Swartz.

    “Just because you can charge someone with a crime, just because a technical crime has been committed, doesn’t mean you should,” Gertner said.

    “At the time of the indictment, [Ortiz] said, ‘Stealing is stealing.’ I saw that all the time when I was on the bench,” she said. “This is a classic line. Stealing an apple if you’re hungry is different than Bernie Madoff. It is obviously different.”

    Swartz allegedly logged onto the computer network at MIT as a guest, using an alias and downloaded four million journal articles from a website JSTOR. For that and various other alleged acts, like hacking into a protected computer, Swartz faced up to $1 million in fines and 35 years in prison.

    “Thirty-five years is the maximum someone could get in the case if the judge applied the maximum,” Gertner explained. “And this never happens.”

    Yet under the guidelines, Swartz was facing substantial time. His lawyer says the prosecution stated it would seek a seven- to eight-year sentence if Swartz was convicted.

    “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.

    Unlike judges, a U.S. attorney’s decisions to charge or not charge are not public and can’t be reviewed, except when cases fall apart, like Swartz’s. And Gertner has a critical take on the prosecutor The Boston Globe named “Bostonian of the Year” in 2011.

    “If the U.S. attorney is going to take credit for every successful prosecution, not matter what the issues were, the U.S. attorney then winds up as ‘Bostonian of the Year’ for these prosecutions, then you know high-profile prosecutions are valued in the office,” Gertner said. “Mr. Swartz was a high-profile prosecution. Whether they are right is another question.”

    Ortiz has not commented on the case since Swartz’s death, stating she wanted to show respect for his family. But on an unverified Twitter account with her husband’s name, picture and identification as an IBM executive, someone was tweeting in defense of Ortiz on Tuesday, and criticizing the family of Swartz for blaming her. One tweet read:

    Truly incredible that in their own son’s obit they blame others for his death and make no mention of the 6-month offer.

    The account has since been deleted.

    Gertner says this case and the suicide of a troubled young man merits attention to the rest of Ortiz’s record.

    “What happens with the press, you don’t talk about the cases which really reflect this kind of poor judgment. You talk only about the cases that succeed,” Gertner said. “This is the example of bad judgment I saw too often.”

    When asked if she was referring to the bad judgement of Carmen Ortiz, Gertner responded, “That’s right.”

  3. On humanity, a big failure in Aaron Swartz case
    By Kevin Cullen | GLOBE COLUMNIST
    JANUARY 15, 2013

    If it was beyond scandalous that Aaron Swartz was facing 35 years in prison and millions of dollars in fines for downloading a bunch of obscure academic treatises without a subscription, it is beyond tragic that he is now dead.

    Swartz, 26, a computer prodigy and open Internet activist, hanged himself in his Brooklyn apartment last Friday. While we will never know for sure why, many who love him and know him best believe that prosecutors bullied him to the grave.

    The argument about whether Swartz should have been facing criminal charges in the first place is largely academic. It’s true that JSTOR, the subscription-service archive from which Swartz downloaded the articles, didn’t want him prosecuted. MIT, whose computer system Swartz used to download the information, was less forgiving.

    The argument about whether prosecutors should have been insisting that Swartz, who had written openly and movingly about his struggle with depression, serve at least six months in prison is not an academic question. It is a question about proportionality and humanity, and on both fronts the office of US Attorney Carmen Ortiz and the prosecutors who handled this case, Steve Heymann and Scott Garland, failed miserably.

    It is hard to know what prosecutors were thinking because they aren’t talking, they say, out of respect for Swartz’s family.

    Andy Good, Swartz’s initial lawyer, is ­alternately sad and furious.

    “The thing that galls me is that I told Heymann the kid was a suicide risk,” Good told me. “His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’ I’m not saying they made Aaron kill himself. Aaron might have done this anyway. I’m saying they were aware of the risk, and they were heedless.”

    Good says the hard-line attitude was not unique to his case, but the facts were. People who steal things usually benefit financially from it. Swartz downloaded the material because he believed that such information — in this case, much of it research underwritten by taxpayers — should be free to the public. He did it not to make a buck, but to make a point.

    Swartz and his lawyers were not looking for a free pass. They had offered to accept a deferred prosecution or probation, so that if Swartz pulled a stunt like that again, he would end up in prison.

    Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. He said JSTOR signed off on it, but MIT would not.

    “There were subsets of the MIT community who were profoundly in support of Aaron,” Weinberg said. That support did not override institutional interests.

    Elliot Peters, the San Francisco lawyer who took the case over from Weinberg last fall, could not persuade prosecutors to drop their demand that Swartz plead guilty to 13 felonies and spend six months in prison. Peters was preparing to go to trial and was confident of prevailing.

    But the prospects weighed heavily on Swartz.

    “There was such rigidity with the people we were dealing with,” Peters said. “I couldn’t find anyone in that office to talk about proportionality and humanity. It was driven by a desire to turn this into a significant case, so that some prosecutor could put it in his portfolio.”

    Peters stopped short of blaming prosecutors for Swartz’s suicide.

    “I’m too much a student of human ­nature to ascribe a 26-year-old’s suicide to any one thing,” Peters said. “Only God and Aaron know why that happened.”

    But that doesn’t mean Peters is in a forgiv­ing mood. He got a voicemail from Heymann on Saturday.

    “I’m sure he was sincere,” Peters said. “But I can’t call him back. Either I’ll say something I shouldn’t say, or I’m going to act like I accept his condolences, which I don’t. So the only thing I can do is not call him back.”

  4. > Nal 1, January 18, 2013 at 10:19 am

    > Great debunking of Ortiz’s self-serving statement.

    It seems that nobody here is asking the obvious question: Is Madame Ortiz going to be fired? Or, is she going to be counseled? or, (O ye mortals, abandon all hope) she’s going to get a promotion?

  5. Ralph Adamo:
    Contrary to your earlier assertion, you have not pointed out anything “ad infinitum.” I must acknowledge, however, that you have made a Herculean effort to do so.

  6. Repeating that last bit from the mashable link:

    Lessig also had a final message for Swartz. “I will always love you, sweet boy. Please find the peace you were seeking. And if you do, please find a way to share that too.”

  7. Lawrence Lessig Responds to Aaron Swartz’s Prosecutor

    by Lorenzo Franceschi-Bicchierai

    Internet guru and academic Lawrence Lessig wrote a new blog post, sharing his feelings a week after Aaron Swartz’s death and addressing Swartz’s prosecutor’s statement.

    “Why was he being charged with 13 felonies?” Lessig asked.

    In an emotional post, Lessig confesses that he hasn’t slept since finding out about his friend’s death. “I have been frantically trying to explain, to connect, and to make sense of all of this,” he wrote. And even though there have been smiles in the midst of these sad times, that hasn’t been enough.

    “But these smiles have been drowned by endless sadness, and even greater disappointment — and none more pronounced than the utterly profound disappointment in our government, Carmen Ortiz in particular,” he wrote.

    Comparing Ortiz’s response to that of Massachussets Institute of Technology’s president Leo Rafael Reif, who announced he would open an investigation into the school’s role in Swartz’s prosecution, Lessig wrote:

    I hate my perpetual optimism about our government. Aaron was buried on the tenth anniversary of the time that optimism bit me hardest — Eldred v. Ashcroft. But how many other examples are there, and why don’t I ever learn? The dumbest-f…ucking-naive-allegedly-smart person you will ever know: that guy thought this tragedy would at least shake for one second the facade of certainty that is our government, and allow at least a tiny light of recognition to shine through, and in that tiny ray, maybe a question, a pause, a moment of “OK, we need to look at this carefully.” I wasn’t dumb enough to believe that Ortiz could achieve the grace of Reif. But the single gift I wanted was at least a clumsy, hesitating, “we’re going to look at this carefully, and think about whether mistakes might have been made.” […] Ortiz’s statement is a template for all that is awful in what we as a political culture have become.

    Lessig then goes on to argue that Swartz’s crime was political and “his harm was exactly none.” For that reason, he compares the treatment Swartz received to that of Martin Luther King Jr. Lessig notes that King was never convicted of any felony, and he was only charged with two “bogus” charges, of which he was acquitted. In Lessig’s eyes, Swartz received a far worse treatment.

    “This is a measure of who we have become. And we don’t even notice it. We can’t even see the extremism that we have allowed to creep into our law,” Lessig writes, before dealing a tough blow to Ortiz. “And we treat as decent a government official who invokes her family while defending behavior which in part at least drove this boy to his death.”

    Lessig also had a final message for Swartz. “I will always love you, sweet boy. Please find the peace you were seeking. And if you do, please find a way to share that too.”

  8. I know that I predicted, above, that prosecutor Ortiz will be sent to Hell when her time comes up at the Pearly Gates. But in thinking about it, that is not good enough. She needs to resign and go out to pasture and be a private lawyer in that great state that she comes from– doing divorces and bankruptcies. Pull out now Ortiz, like your father should have. Hmm. That could be a bumper sticker.

  9. Blouise:

    we’re talking fairy-tales, right?”


    Pretty much.

  10. mespo,

    uh-huh … somewhat … maybe … sometimes … only during a blue moon … we’re talking fairy-tales, right?

  11. Blouise:

    “From the age of 14 and on he was a builder and in the 27 short years he was alive he accomplished incredible good. He harmed no one and took little for himself. He was instrumental to the defeat of an Internet censorship bill. His programming and technical skills were legendary. He was well known as a developer of Reddit, the inventor of RSS.

    His alleged crime involved no victims and no damages and the only entity that could be construed as a victim, JSTOR, refused to press charges.

    He’s dead now and we’re left with people like or Ortiz and Heymann and their enablers. Wow, aren’t we the lucky ones!”


    Do you think we evaluate Robin Hood by our feelings about the Sheriff of Nottingham? If Swartz was stealing money from the Little Sisters of the Poor to feed the hungry, would you say he’s bad? However, if he was stealing money from Bain Capital to feed the hungry would he be good?

    Can good people do bad in furtherance of the good? If they do, should they be punished for it?

  12. Lofgrens bill:

    “The government was able to bring such disproportionate charges against Aaron because of the broad scope of the Computer Fraud and Abuse Act (CFAA) and the wire fraud statute. It looks like the government used the vague wording of those laws to claim that violating an online service’s user agreement or terms of service is a violation of the CFAA and the wire fraud statute.

    “Using the law in this way could criminalize many everyday activities and allow for outlandishly severe penalties.”

    It invited “dangerous legal interpretation”, she said, which Congress had a responsibility to change.

    Her amendment excludes access in violation of an agreement, such as an acceptable use policy or terms of service agreement, with an Internet service provider, in cases where such a violation is the sole reason for determining that access to a computer is unauthorised.

    Lawrence Lessig, a friend of Swartz and Harvard law professor, gave the amendment his blessing. He wrote: “This is a CRITICALLY important change that would do incredible good.

    “The CFAA was the hook for the government’s bullying of [Aaron]. This law would remove that hook. In a single line: no longer would it be a felony to breach a contract. Let’s get this done for Aaron – now.”

    Marcia Hofmann, a senior staff attorney at the Electronic Frontier Foundation, welcomed the bill but said that, as it stood, it would not have prevented Aaron’s prosecution.

    In a tweet, she saidL “Kudos to Rep Lofgren for her swift response. But her bill wouldn’t have prevented Aaron’s prosecution under the CFAA or wire fraud law.” In another message, she said the bill needed strengthening before it went before Congress.

    The Justice Department’s prosecution of Swartz, which has been widely criticised since his death, is to be investigated by the House Oversight Committee.

  13. Comparing what Ralph says to logic is an insult to a very valuable tool, OS.

    It’s a fine example of the type of derangement that extremism in any position attracts and generates though. Binary thought at its most unattractive and destructive. He completely ignores facts and accuses others of his sins in a prime illustration of classic psychological projection. For example, a quite a few of the “leftists” here have spoken in defense of the 2nd Amendment and Hitler didn’t rise to power on the “promise of genocide”. Both assertions that can be disproved; one by evidence of the content of this blog and the other by simply knowing history. He raves about one polarity being the paragon of virtue and the other being the cause of all evil despite the fact that history shows that any position taken to the extreme ends badly. He acts as if there is not such thing as a moderate centrist solution to any given problem and that its his way or the highway. He’s a “true believer” in every negative sense of the word and as Hoffer describes.

    But logic? No. Ralph is like Bush. His logic is fundamentally broken by his innate biases. He has lost (if he ever had it) all critical perspective and with it his ability to think critically and objectively. He thinks with “his gut”. Which considering the end product of the gut and the end product of Raphie’s “reasoning” is poetically serendipitous.

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