Criminal law, Lawyering, Politics, Society

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
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.

220px-Aaron_Swartz_at_Boston_Wikipedia_Meetup,_2009-08-18_

Source: TechDirt

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

  1. Darren,
    You may remember this incident from about fifteen or so years ago. There was a woman District Attorney in one of the southern states. IIRC, it was Florida. She was well known for her aggressiveness in going after seizures of property where illegal activity was going on, especially if there was a drug operation. That worked fine for the judicial district until her son was arrested for manufacture with intent to distribute. Seems he had a rather substantial agricultural growing operation on her property where he lived with her.

    Oddly enough, they appointed a special prosecutor who dropped the charges to misdemeanor possession and nothing was said about seizing her house and property. Strange, don’t you think?

  2. This is only indirectely related to the topic but it might give some who haven’t been directly involved in criminal justice a bit of a different perspective on things.

    When I worked for the sheriff’s office it was a regular event where I would have this happen. I usually worked night shift and it often happened where I came along a person, (either on a traffic stop where they had an outstanding arrest warrant, a DV assault case, a DUI or whatever) and arrested them, booking them into jail about a half hour before shift change.

    After I got home, occasionally I would lament on how different my and the man I arrested events unfolded. An hour before I nicked the guy I would venture to say he probably didn’t think he would be in jail, his life somewhat upheaved, while I knew that I was going to get home just like any other day. While I undressed and put away my equipment to get ready for bed I thought to myself how rather bizarre this was. I was going to be in my comfy warm bed, at home with a good night’s sleep ahead of me. The defendant at the same time was made to dress in some ill fitting jumpsuit and spend probably a sleepless night in some noisy bunk with derelicts and others making it worse.

    I will say for better or worse I seldom took any pity to those I arrested, I didn’t arrest anyone I didn’t think guilty and needing to be booked, but in the last few years I worked the road I began to think about the duality of the situation in the previous paragraph. I get to go home to a warm bed, the other person goes to a very bad one. Putting people there was a regular part of my job but the other person gets an upheaval.

    I say this because it demonstrates, at least to me, how easy it can be to be caught up in the regularity of having power over people where they can be subjected to very bad ordeals. Those in power (police / prosecutors / judges / even defense attys) can easily lose sight of what the defendant is going through while sitting in jail or even being free and having to worry about going to jail later. As a result it can be the case where we do not recognize what is happening to this person because we are so removed. And it can make is appear to be very indifferent to them because the reality is that the system does not make it our jobs to be concerned with them once we have completed the task at hand.

    But like to some degree any of us in the Criminal Justice system can be judged harshly. This prosecutor is not the personification of evil, though she certainly had some questionable prosecuting decisions as some have legitimately complained about. But I and my fellow at least former cops can attest to we are not any different.

    I have either directly or as a participant made thousands of arrests. I had to be somewhat indifferent to the consequences of the defendant’s actions. I could only be civil and fair to them. I could not or cared not to concern myself for their welfare after they were arrested and booked. If I did the stress would be overwhelming.

    While I was generally pretty accomodating on small issues, I too have thrown the book at people who greatly victimized others. I have stacked every charge on the person for which probable cause would be indicated. It certainly added to their sentences I would imagine, but that was my job to do so when warranted. But this usually does not come as any comfort to the person I arrested. But it does have consequences, again for better or worse. There are a couple individuals who I arrested where I will be in my 90’s when they are released. They were clearly guilty, but nevertheless they are languishing away in the joint and I am here in my home-office typing this letter.

    Personally I think Mr. Swartz was railroaded and the prosecution could easily be related to his suicide, but consider this situation.

    I knew a deputy who maybe thirty years ago pulled over a man for speeding. It was not really anything out of the ordinary, he just wrote him a ticket and was done with it. A short time after the traffic stop the defendant committed suicide. It was just the last straw before that poor fellow snapped and it pushed him over the edge.

    After all this I suppose it would be a good suggestion to anyone having such authority over others is that you have to be perceptive as to the plight of the person, but then again at the same time, oddly, you have to be indifferent. It’s not an easy balance.

  5. Jail of any type is only for those who make less than 100k per year… Over 100k we can make a deal!!!

  7. Triumphant motel owner slams Carmen Ortiz

    A Tewksbury motel owner who just beat back U.S. Attorney Carmen Ortiz’s three-year bid to seize his business has become the latest critic to accuse the Hub’s top fed of prosecutorial bullying.
    …
    In a written decision after a November trial, U.S. Magistrate Judge Judith Gail Dein dismissed the government’s forfeiture action, ruling yesterday that Caswell, “who was trying to eke out an income from a business located in a drug-infested area that posed great risks to the safety of him and his family,” took all reasonable steps to prevent crime.

    “The Government’s resolution of the crime problem should not be to simply take his Property,” Dein said in her decision.

  9. AY,

    Reposting:

    anonymously posted 1, January 20, 2013 at 7:53 am

    WikiLeaks says Aaron Swartz may have been a ‘source’

    Group says the late tech activist talked with editor Julian Assange and may have been a WikiLeaks source. But it doesn’t offer any details or corroborating evidence.

    by Edward Moyer
    January 19, 2013 10:43 PM PST

    http://news.cnet.com/8301-1009_3-57564881-83/wikileaks-says-aaron-swartz-may-have-been-a-source/

    ====

    And to think Mike S posted about Eugene McCarthy…. Have we really advanced far? -AY

    No. No, we haven’t.

  10. Has everyone missed the reason behind the haranguing is that he had links to Julian Assange….. Our covert government will stop at nothing to get them…. And to think Mike S posted about Eugene McCarthy…. Have we really advanced far?

  14. Taren Stinebrickner-Kauffman (at Aaron’s public memorial service):

    “Last Friday he faced the prospect of yet another three months of uncertainty and ups and downs and being forced by the government to spend every fiber of his being on this damnable, senseless trial, with no guarantee he could exonerate himself at the end of it. He was so scared and so frustrated and so desperate and more than anything, just so weary. I think he just couldn’t take it another day … Aaron would have loved to have been here because out of the last week and out of today, Phoenixes are already rising from his ashes. The best possible legacy for him is for all of us to go out from here today and do everything we can to make the world a better place.

    A thousand flowers are blooming in his name already. Some of the most important that we’ll be fighting for — David Siegel, and many others — are organizing around: the U.S. attorneys office must be held accountable for its actions.”

  15. Ortiz is done:

    Just days ago, speculation was rampant. Gov. Carmen Ortiz? U.S. Sen. Carmen Ortiz?

    Well, that’s all over now.

    U.S. Attorney Carmen Ortiz is done. Finished. Forever linked to bringing the full and frightening weight of the federal government down upon a 26-year-old computer genius — and a suicide risk.

  16. I rarely find myself in agreement with John E. Sununu’s opinion pieces in the Boston Globe. Today I did.

    *****

    A crisis of values at MIT
    By John E. Sununu | Globe Correspondent
    January 21, 2013
    http://bostonglobe.com/opinion/2013/01/21/crisis-values-mit/WxSOroQauc231s9q4phwtM/story.html

    Excerpt:
    When I was an engineering student at MIT in the 1980s, a quarter century seemed like an eternity. College students focus on the here and now — a class, a grade, a night out — not on what they might be doing at 50. (Believe me: The idea of a regular Globe column was far from my mind at the time.)

    To no surprise, the years that have passed since I graduated in 1986 feel shorter when glimpsed in a rearview mirror. But the Massachusetts Institute of Technology that has emerged in coverage of Aaron Swartz’s suicide is hard for me to recognize. The school, remembered by many alumni for its encouragement of the creative and unconventional, is said to have taken a hard line toward Swartz, an activist for digital freedom, who used the institute’s facilities to download millions of academic journal articles.

    After Swartz returned the documents and apologized, JSTOR — the subscription service that was hacked — dropped a civil case against him. MIT, however, remained silent. Swartz’s family faulted the institute for failing to back him. One of his lawyers went farther, telling a Globe writer that the school had stood in the way of a plea deal that would have kept Swartz out of prison. Unfortunately, MIT still isn’t talking.

    This approach looks remarkably self-centered and bureaucratic for an institution that once took pride in a long history of inspired pranks, the most celebrated of which rarely fell within the strict bounds of legality. During my freshman year, a determined MIT fraternity broke into Harvard Stadium — repeatedly — in order to bury a homemade device manufactured from vacuum cleaner parts and a weather balloon. The ensuing inflation in the midst of the 1982 Harvard-Yale game became an emblem of both the school’s technical prowess and its wit. Photographs of the moment adorned official MIT publications for years.

    Swartz wasn’t a student at MIT, and his handiwork carried a political message. He believed that academic articles should be available digitally for free. But in the end, accessing the computer system “without authorization” was nothing more than a stunt. The real distinction was MIT’s passive reaction. That gave the US Attorney’s Office in Massachusetts the cover to pursue the case with vigor — which it did, despite being informed that Swartz’s fragile mental health placed him at risk for suicide.

    This case has exposed a trend that should bother us all: the loss of common sense and good judgment as a basis for resolving differences, and the unrestrained use of prosecutorial power. The last “offer” issued by the US attorney demanded six months of jail time. Has anyone ever served a day for unauthorized use of MITs computer facilities? I doubt it — and certainly not someone who served as a Harvard fellow, as Swartz did.

    Whereas the institute once would have taken pains to find an appropriate and internal resolution to violations of regulations — and even laws — within its campus, it chose to defer to others. That reaction isn’t unique to MIT, but rather a reflection of gradual changes in accepted cultural and government behavior over the past 20 years. Today, regulators and prosecutors regularly use their power to impose agreements, plea bargains, and consent decrees with little judicial review. They threaten the maximum penalty allowable — regardless of whether a rational mind would consider it fitting for the infraction — in order to gain an outcome that enhances their stature or pleases their political base.

  17. Idealist contributed:
    Here’s a little help from my friend
    < link to MC Hammer Video >
    ~+~

    How about this to cover two topics at once:

  19. idealist, oh, I doubt this is a “no pussy” confinement.
    Cats like Julian.
    And he likes cats.

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