Carmen Ortiz: Prosecution for Political Ego?

Submitted by: Mike Spindell, guest blogger

HK_Central_Statue_Square_Legislative_Council_Building_n_Themis_sOne of the main concerns we Americans should have is about the state of our criminal justice system. How a society deals with the issue of criminality is one of the ways that we all can judge its freedom from oppression. This country has been selling our “democracy” to the world for 8 decades now as an example of how a modern nation should operate. Throughout the “Cold War” there were innumerable comparisons made between American freedom and the “Police States” of communism. Last year when I was writing an article on “The Incarceration of Black Men in America” I was surprised to discover that the United States has the highest incarceration rate in the world. That we put people in prison at a significantly higher rate than any other country and that include Russia and China. The responsibility for charging criminals and prosecuting the cases against them fall to Prosecutors at all levels of government. The U.S. Attorneys for various States are among the most powerful of prosecutors, with the widest resources to investigate possible criminal activity. We also know that quite often these U.S. Attorney positions are valuable stepping stones for those with deep political ambitions. Rudolph Giuliani is probably the most famous of these today, but in the past Thomas E. Dewey parlayed it into Governorship of New York and then a failed run for the Presidency in 1948. In both those instances their reputations were built upon prosecuting high profile defendants.

Until about two weeks ago the name of Carmen Ortiz, the U.S. Attorney for Massachusetts, was an unfamiliar name. The suicide of computer whiz Aaron Swartz, linked to her threatening him with a number of charges that could have led to 50 years in prison, has made headlines that brought her name to the forefront of our news cycle. Swartz’s suicide resulted in much outrage and even led to two widely commented upon blogs by Jonathan Turley our host” and:  It even inspired my own guest blog:  By all accounts Ms. Ortiz has strong political ambitions and managed to receive much favorable publicity in Massachusetts. I want to look at some of her cases that led her to prominence and the fact that their prosecution may have been more self-serving, rather than examples of protecting the people from the criminality amongst them.

Russ Baker’s website that does excellent investigative reporting, ran a story about Ms. Ortiz By Christian Stork on Jan 17, 2013, titled: “Carmen Ortiz’s Sordid Rap Sheet”  My thanks to the author and his excellent column which I am using for background for this guest blog. My contention though, is not that Ms. Ortiz is the worst of her prosecutorial profession, nor even that she is an evil person. I believe that she has thrived in a prosecutorial culture that has self righteously used prosecution for personal political gain with an ability to self-justify their behavior in terms of the public good. She is unfortunately not the exception to the rule, but actually represents some normative prosecutorial behavior. This isn’t about “evil” people abusing the Law and their powers, but about people who are acting in consonance with the system they’ve joined and are negotiating that system in a timeworn manner. Too often in today’s insane political scene we ascribe malefaction to “good” or “evil”. As long as we use these emotion loaded terms we prevent ourselves from understanding the systemic problems that are at root and therefore handicap ourselves to dealing with the problems.

“The details of the Swartz case are so suggestive of prosecutorial abuse that they have already led to widespread condemnation of Carmen Ortiz and (her cohort) Stephen Heymann. However, what’s missing from much of the expressed outrage is recognition that the “bullying” tactics employed by Ms. Ortiz are standard operating procedure for federal prosecutors when pursuing criminal cases.”

As Mr. Stork puts it “bullying” tactics are indeed standard operating procedure in criminal prosecutions. This is not a “hidden” fact but one that is out in the open and in fact shown daily on many of our most popular TV crime shows. This “bullying” is actually almost always put in a positive light. Overcharging in a case to obtain a pleas bargain happens in more than 90% of all criminal cases. We’ve commonly seen what would be manslaughter cases, like Casey Anthony’s where there was no conclusive evidence of premeditation, charged as a Capital Crime. The prosecution frames this overcharging in their more famous cases with the kind of moral fervor that stirs up the public, who then become disappointed when the “plea” is made to a lesser charge and tend to blame our “lax” legal system for being unable to punish “evildoers” as harshly as they should be punished.

The Great Heist of Tewksbury

With a population just under 30,000, the town of Tewksbury, Massachusetts, is hardly considered ground zero for federal drug trafficking crimes. Just off Route 38, the town’s only major thoroughfare, sits the modest Motel Caswell. With just six reviews on—one “Poor” and five “Terrible”—even defenders of the $57 per night operation admit its shabby digs: “The Motel Caswell isn’t the Ritz,” its lawyer told a federal courtroom in November 2012. But that didn’t stop the Drug Enforcement Administration (DEA) and Ms. Ortiz’s office from trying to seize its assets” In 2009, the 69-year-old owner, Russ Caswell, received a letter from the DOJ indicating the government was pursuing a civil forfeiture case against him with the intention of seizing his family’s motel—it was built in 1955 by Russ’s father—and the surrounding property. Ms. Ortiz’s office asserted that the motel had been the site of multiple crimes by its occupants over the years: 15 low-level drug offenses between 1994 and 2008 (out of an estimated 125,000 room rentals). Of those who stayed in the motel from 2001 to 2008, .05% were arrested for drug crimes on the property. Local and state officials in charge of those investigations never accused the Caswells of any wrongdoing.

Nor is the U.S. attorney charging Russ Caswell with a crime. The feds are using a vague but increasingly common procedure known as civil asset forfeiture. In criminal forfeiture, after a person is convicted of a crime the state must prove that the perpetrator’s property had a sufficiently strong relationship to the crime to warrant seizure by the government. In civil forfeiture proceedings, the state asserts the property committed the crime, and—under civil law—the burden of proof is on the defense to demonstrate their property is innocent.

“I’ve found…I’m responsible for the action of people I don’t even know, I’ve never even met, and for the most part I have no control over them,” Mr. Caswell told WBUR Boston. “And when they do something wrong, the government wants to steal my property for the actions of those people, which to me makes absolutely no sense. It’s more like we’re in Russia or Venezuela or something.”

 According to the sworn testimony of a DEA agent operating out of Boston, it was his job to comb through news stories for properties that might be subject to forfeiture. When he finds a likely candidate, he goes to the Registry of Deeds, determines the value of the property in question, and refers it to the U.S. attorney for seizure. It is DEA policy to reject anything with less than $50,000 equity.

In other cases, that DEA agent testified, the property is brought to his attention by local police departments. He could not recall whether Mr. Caswell’s case was brought by local authorities or picked by his own research. Christina DiIorio-Sterling, a spokesperson for Ms. Ortiz’s office, maintained in an interview that local police brought the case to DEA. But if Tewksbury’s Finest suspected crime was occurring on specific property, why not initiate an investigation themselves? Why simply hand a case like that over to the feds?

 Through a policy known as equitable sharing, “the federal government has the discretion to dispense 80%” of the proceeds of liquidated seized assets “with the local authorities [that] cooperate,” Larry Salzman—attorney for Mr. Caswell—told WhoWhatWhy in an interview. He maintains this provision creates a perverse incentive to initiate such proceedings, even when the investigating authorities have no reason to suspect criminal wrongdoing. “It’s obvious it turns the American idea of innocent until proven guilty on its head.”

 When asked about the possibility of an 80% haul that Tewksbury PD stood to gain from the liquidation of Mr. Caswell’s property, Ms. Sterling responded that such processes are referred all the way up through the Department of Justice (DOJ), before any arrangement with local authorities is negotiated: “The equitable sharing process is a lengthy one.”

Perhaps I’m too obtuse to understand the fine points of how this seizure of assets results in the public good, due some obtuseness of which I’m unaware. In my admittedly laymen’s opinion the entire concept of “Civil Asset Forfeiture” is un-constitutional. Its’ use in this instance is a clear case of overreach by Ms. Ortiz office. Yet my knowledge of the human psyche is such that I guarantee that hooked up to a lie detector and justifying this forfeiture as a matter of public good, she would pass with flying colors. The is an example of the current prosecutorial culture, driven by ill thought out campaigns such as the “War on Crime”, the “War on Drugs” and the “War on Terrorism”. Some may disagree, but my gut instinct is that excesses such as these are driven by normal people operating in the vacuum of an irrational system driven by mythology, rather than reality.

“The Kingpins of Patronage

In March 2012, former Massachusetts Probation Commissioner John J. O’Brien was indicted by a federal grand jury under the Racketeer Influenced and Corrupt Organizations Act (RICO). With two of his former deputies and alleged co-conspirators, he was charged with “one count of racketeering conspiracy and 10 counts of mail fraud,” according to The Patriot Ledger. Each of the 11 counts carries a sentence of up to 20 years.

 The lengthy indictment alleges that the three ran a hiring system for the Massachusetts Probation Department that gave preference to friends and family members of certain legislators and politically connected prospects. Those aforementioned counts of mail fraud consisted of “sending rejection letters to applicants they knew from the start they weren’t going to actually consider.” By this standard, any boss who ever hired a friend’s child—yet sent letters to other applicants in which he claimed they were considered before being rejected, as per standard hiring procedure—has committed mail fraud.”

I have no idea whether or not these men are guilty of malfeasance and corruption. What I do know though is that the ten counts of Mail Fraud, with a possible sentence of 200 years are bogus. We have seen too many instances to delineate where “mail fraud” of this simple nature and tortured interpretation has been used to overcharge defendants in the service of getting plea bargains. Is this how we really want our criminal justice system to operate?

“Enacted in 1970 to enable prosecutors to convict leaders of criminal organizations who order subordinates to commit crimes but who are never themselves at the crime scene, RICO statutes have most widely been applied to drug cartels, the Mafia, and terrorist organizations. The logic is simple: if a mob kingpin orders a hit on someone, he has a strong First Amendment case that he isn’t at fault for the murder. Under RICO, the government only needs to prove a relationship between murderer and kingpin within an ongoing criminal organization.

Mr. O’Brien and his co-defendants are also under indictment for violating state campaign finance laws. But those are charges being brought by the Attorney General of Massachusetts, Martha Coakley, and are unrelated to the federal indictments issued by Ms. Ortiz’s office.

It is the job of prosecutors to bring malefactors to justice with tools appropriate to the alleged offenses — for example, RICO vs. the Mafia or al-Qaeda. But excessive prosecutorial zeal that regularly aims the biggest guns in the government’s arsenal at the smallest fry can only undermine public support for the justice system itself.  In cases like that of John J. O’Brien and Aaron Swartz, U.S. Attorney Carmen Ortiz’s penchant for bringing disproportionate charges intended for serious criminals against defendants who pose little or no threat to the public’s well-being suggests either puritanical vengeance or brazen self-promotion.”

Probably I am in the minority in believing that RICO Laws violate the spirit of our Constitution. They came about when there was perpetrated the great organized crime scare that originated from the raid on the Cosa Nostra’s meeting in Apalachin, NY in 1957, at a time when J. Edgar Hoover denied the existence of organized crime.  After the arrests and prosecutions coming from that meeting and the testimony by Joe Valachi (Joe the Rat) at  Senator McClellan’s Senate Committee on Organized Crime in 1962 there was publicity created public clamor for government to stomp out the danger of organized crime. Because this was sometimes difficult RICO laws were passed to facilitate these prosecutions and in the popularity of satisfying the public clamor, Constitutional Issues were cast to the side. I’m not a fan of organized crime, who can be, but I’m bemused why nobody has mentioned using RICO to deal with the fraud perpetrated by the “too big to fail” Investment Banks. Surely the seizure of their assets would seem appropriate in the light of what has become known about their operations?

Speaking While Brown (and Bearded)

Now consider the case of Tarek Mehanna, a Massachusetts pharmacist sentenced to 17 years in prison after being convicted in 2012 of supporting al-Qaeda and conspiring to kill U.S. soldiers in Iraq. Ms. Ortiz’s office claimed in the indictment that Mehanna travelled to Yemen with the intent of joining a terrorist training camp — although he never found one.

Upon returning to the U.S., prosecutors allege, Mehanna translated documents written by members of al-Qaeda and posted YouTube videos in support of suicide bombings. The 2010 Supreme Court case Holder v. Humanitarian Law held that “protected speech can be a criminal act if it occurs at the direction of a terrorist organization.” Mehanna was eventually found guilty, although no causal relationship was established between his controversial advocacy against American foreign policy and direction by a designated member of al-Qaeda.

Although her office failed to win the 25-year minimum sentence she had requested, Ms. Ortiz said that Mehanna “faced the consequences of his actions, for conspiring to support terrorists, for conspiring to kill Americans overseas, and for lying to the FBI.” At his sentencing hearing, Mr. Mehanna claimed he was being persecuted for not cooperating with the FBI, which had pressured him to join its sprawling, thousands-strong network of paid informants and provocateurs (the prime source of most federal terrorism indictments since 9/11):

As I was walking to my car I was approached by two federal agents. They said that I had a choice to make: I could do things the easy way, or I could do them the hard way. The “easy ” way, as they explained, was that I would become an informant for the government, and if I did so I would never see the inside of a courtroom or a prison cell. As for the hard way, this is it. Here I am, having spent the majority of the four years since then in a solitary cell the size of a small closet, in which I am locked down for 23 hours each day. The FBI and these prosecutors worked very hard — and the government spent millions of tax dollars – to put me in that cell, keep me there, put me on trial, and finally to have me stand here before you today to be sentenced to even more time in a cell.

As I pointed out in an article discussing the assassination by drone strike of American-born cleric Anwar al-Awlaki, legal precedent holds that independent political speech—no matter how heinous and suggestive—is protected unless it passes the Brandenburg test of inciting imminent lawless behavior. According to this reading of the law, whether Mehanna simply agreed with al-Qaeda’s message and promoted his own views in that vein or was deliberately ordered to do so by al-Qaeda members, he was still engaging in constitutionally protected speech.”

Now I would hasten to say that Mr. Mahanna is not exactly someone who could be described as a “solid citizen”. However, reading this case we can infer that the man was being prosecuted far more for his beliefs, than for his actual actions. This government, including the Administrations of Presidents G.W. Bush and Barack Obama, have used the horror we all felt from 9/11 to move this country far a field from the constitutional protections of our citizenry provided to us in that great document. While all three areas tasked with providing criminal justice, the LEO’s, the Prosecution and the Courts have failed in their duty to We the People and to the Constitution I believe that the most egregious actions have been done by prosecutors. While LEO’s arrest, the major arrests are performed within the framework given by the prosecutors. They have the final say as to who will be indicted with the crime and they are able to serve a liaison function in marshalling all the forces of government in their cause. Though no doubt many are quite dedicated to their jobs and to the Constitution, in many other instances their appointments are political and their actions in office can lead to higher and higher political achievements. This is a great temptation to set before any person. When you add in the tendency that all of us have to justify our own behavior, while finding “justification” for our actions, it can breed dangerous behavior.

In these three cases I’ve presented I think that Ms. Ortiz bears responsibility for servicing her ego via playing the part of the “tough prosecutor”. We know she had higher political aims and still might achieve them. We must all recognize that our criminal justice system is indeed in need of repair. If we don’t recognize this truth, then how could we ever go about correcting the errors?

Submitted by: Mike Spindell, guest blogger

66 thoughts on “Carmen Ortiz: Prosecution for Political Ego?

  1. The biggest racketeers in the world are the Wall St banking cartel initiated by the Federal Reserve Bank and the US government, including Eric Holder.

  2. Good post Mike…… Something to ponder….. Why is it that crack cocaine and cocaine have different penalties…..

    The justice system is anything but justice……

  3. We all have to make sure that Ms. Ortiz does not benefit from her sordid actions.

    I have copied this article and sent it to several friends – I hope that they also pass it along.

    Ms. Ortiz’s name has to be associated with what she stands for – prosecutorial abuse.

    Thanks for researching/writing this article. You have stood up for the Constitution.

  4. At the same time this is happening, the banksters who were too big to fail also appear to be too big to go to jail..

  5. Great job Mike. It is far too common a practice for prosecutors to up the ante and pile on the charges. I agree with you that the civil forfeiture aspect is especially egregious. The motel case cited above is exhibit A in government overreach.

  6. As so often here, this is something which deserves a nationwide audience exposure.
    Letter by you, Russ Baker, or jointly to the NYTimes for publication?

    If we are to awaken ourselves and the people, this is just another example that small fires can be easily extinguished. We need to burn the nation in a way that can not be denied media time and space. Not Newtown, but an equivalent.

    How many millions must man the Mall? Revolutions are snuffed by FBI advisory teams. The easy way or in you go.

    Again I must leave the problem to others to solve.

    Consider the media way, somebody may be hungry for an issue and some space to be noticed in. Always good for a career. Good media guys don’t exist.

  7. Mike,
    Dr. Samuel Walker wrote a very good book about the criminal justice system called “Sense and Non-Sense about Crime, Drugs and Communities” in which he lays out many of the problems with the criminal justice system and role of political ideologies in its crumble over the past 50 years. I would highly recommend it.

  8. Raff, speaking of jail, from what I am reading, some of them even own the damn jail. The private prison-industrial complex is growing at a record pace. The powers that be have every incentive to keep true drug and sentencing reform from happening.

  9. “Dr. Samuel Walker wrote a very good book about the criminal justice system called “Sense and Non-Sense about Crime, Drugs and Communities””


    thanks, I’ll check it out.

  10. Reblogged this on danmillerinpanama and commented:
    Government employees are too often given excessive discretion, and therefore excessive power to do as they may please, at the expense of others. If the rights of the people are to be respected, that may well suggest that the laws under which those employees function are too flexible. It should not matter whether they can successfully be portrayed in the media as “good guys” and the others as “bad guys.”

    Consider the Duke University “rape” case and the politically directed actions of (now former) prosecutor Nifong. Consider also the media generated storm over “White Hispanic” George Zimmerman’s killing of a cute little, and therefore “blameless,” Black kid named Trayvon. The same Constitution applies to “good guys” and “bad guys” alike. The civil forfeiture case mentioned at the top of the article is an egregious example of governmental overreach.

  11. Timely post Mike S.

    Last night I watched The Untouchables on Frontline which deals with the prinicples involved here.

    Although they concern the inverse side of the picture (refusal to prosecute).

    The U.S. Attorney for the criminal division dealing with banks or Wall Street mucky mucks was the focus.

    It shows that Epigovernment controls the decisions of the DOJ on these issues.

    Although that is not stated in the documentary specifically, it is easily seen as the dynamic behind the mystery:

    One of the main concerns we Americans should have is about the state of our criminal justice system. How a society deals with the issue of criminality is one of the ways that we all can judge its freedom from oppression.

    (Carmen Ortiz: Prosecution for Political Ego?, Mike S). This is more evidence and observation that the internal dynamics of our national DNA have been altered.

    This is definitely an evidence strata indicating a Plutocratic mindset of the Ayn Rand sort.

  12. Mike as always a very good post. I do have to disagree with you on the issue of evil. I do think Ms Ortiz and here colleagues who participate so enthusiastically and so cruelly in the criminal “justice” system are evil or at least their acts are evil. An ethical person who finds him or herself in an unethical or immoral system should avoid being a tool of that system and work from the inside to reform that system. Ms. Ortiz not only failed to try and reform the system she added a gloss of cruelty. Is she a rogue in this conduct? Absolutely not but I will not blame the system instead of blaming her. Until we start holding individuals accountable for what they do the system will never change. When I went to law school I really believed in the system. Of course my years of litigation proved to me that many lawyers and their wealthy clients gamed the system to teach workers and other small fry that the poor and the workers are expendable and don’t merit any of the rights now vouched safe to corporations. It was a disappointment but we fought on. Now corporations have virtually eliminated the rights of workers and consumers to enforce their “rights” by making sure the courts are not open to them. In the criminal justice system prosecutors have behaved in the same way prosecuting small fry and allowing the big really big criminals to avoid liability and sometimes receive accolades for their criminal activity. I am disappointed and despairing of where this will ultimately lead. Voters must stand up and say: hold these prosecutors accountable and clean up the system. It is time to have justice for all. It is, quite frankly, past time.

  13. it’s thoughtless politicians who didn’t understand that their insensitivities to flooding caused the generations of repetitive waste we have to endure today . Refusal to acknowledge that over analytical PTSD for emotional and environmental neglect is, at its best, a kind of benign abuse .
    That the political small fry, long ago cured of their psychological idiosyncracies , are sadly used to these horrible mockeries of the American justice system .
    The best psychotherapy for any PTSD has to be temporary . It is difficult to not make fun of a ridiculous situation, but as Lt Colombo (played by the rumpled Peter Falk ) said in an episode the 1970’s TV detective show ” I used to be get very angry at one of my relatives, so I would say to my wife , ‘ I coulda killed him. ‘ ” Needless to say, Lt Colombo never meant to act out the thought .
    Protected speech should not be thought of as a potentially damaging tool. Irrelevant or forced juxtapositions in this techno world can easily make any judicial system meaningless . Share your knowledge, that is what Aaron Schwartz was trying to impart , Using or preparing software that gives one group an unfair , permanently exaggerated advantage is a foolish oligarchy indeed

  14. I have long been skeptical of the essentially unlimited power of prosecutors. I have read of D.A.s refusing to prosecute what were clearly unwarranted fatal shootings by police officers. That is far too much power to put in their hands, it is essentially the power to pardon crimes, even straight up casual murders of citizens, by simply never bringing a case.

    As for the rest, Mike: A depressingly accurate assessment indeed.

  15. “I do have to disagree with you on the issue of evil. I do think Ms Ortiz and here colleagues who participate so enthusiastically and so cruelly in the criminal “justice” system are evil or at least their acts are evil.”

    Justin Holmes,

    Thank you for your kind words. My meaning regarding evil is that I see a difference between doing (or participating) in evil and actually being intrinsically evil. I agree that none should participate in what they see as evil even at the risk of their lives or their career. The problem with people like Ms. Ortiz though is that they do not see, or do not allow themselves to see, the wrongness of their actions. They believe fervently that the game they play is a righteous one and they find ways to rationalize their behavior. My work with people as a psychotherapist and a social worker has shown me how much people are capable of fooling themselves when they act badly, by finding justifications for their actions. Would I let such people off the hook of responsibility for the wrong they do? Absolutely not, one must suffer the consequences of their acting badly. However, in dealing with these people effectively it seems important to me that we understand their mindsets and motivations.

    “In the criminal justice system prosecutors have behaved in the same way prosecuting small fry and allowing the big really big criminals to avoid liability and sometimes receive accolades for their criminal activity. I am disappointed and despairing of where this will ultimately lead.”

    I get it that your experience with the law has exposed you to much bad behavior and that we see a society where those with less bear all the burdens, while those with so much still strive to get more, if not everything. The disappoint and despair at all this is not far from me ever, but I believe those of us who see it must continue on in opposing it. While I don’t believe, or find comfort in the religious concept of “soul”, I do believe that we become somehow twisted emotionally if we allow ourselves to be seduced by the rewards of bad behavior.

  16. A little humor???? A long rant???

    Must be a lot of twisted people around. All above bureaucrat grade one are suspect.

    It is intoxicating to these creeps. Oxy something to their pleasure center.

    Now MikeS, I presume, has had lot’s of experience with the poor excusing themselves to avoid responsibility.

    I would ask him what experience does he have with prosecutors who are rewarded by the system. Are they the product of what Noam Chomsky called the filter system, ie school and later selection processes. He gave them also an out, saying that they had no insight, but he is not a psychotherapist. Nor a psychiatrist charged with reviewing the power mad.

    Yes, the skit does attract flies, and the more skit the more flies develop. But surely there somewhere is some evil genius or some evil conspiracy or whatever that explains this crap. Things like CAF must have been a wet dream of a some one percenter or a no-think tank Feudal, you are so right MikeS.

    And you too Justice Holms. Vive la libertie. A la Bastille. Pardon my bad French. Adds a touch of culture to uncouth products.

  17. Aaron Swartz was a thorn in the side of a corrupt government and a VERY CORRUPT FEDERAL COURT SYSTEM! Harassment over the PACER incident simply led Aaron to pursue another form of information release where as an academic he knew common sense would prevail because who in their right mind was going to object to the flurry of free knowledge? The “persecution” that led to the death of Aaron was the DOJ seeing the MIT – JSTOR incident as a perfect storm to carry retaliation over the PACER incident. THIS malicious prosecution could ensure a FELONY conviction if they could get a guilty plea (a jury conviction was very doubtful); a computer crime conviction would bar Aaron from computers & his open records campaign. What you are seeing is RISK MANAGEMENT by the CORRUPT!! Public servants have a fiduciary responsibility to the tax payer; the aforementioned includes a responsibility to provide HONEST SERVICE. Appointed, or simply hired on, your responsibility when you live off the tax payer’s dollar is no less than if you were an elected official. What our high level public servants stated during the DiMasi trial as reported in the local papers follows: “The judge said DiMasi inherited a responsibility to serve in office honorably and should have been aware that his actions were breaking the law,..” “Which person is more dangerous in our country,” Wolf asked, “someone who is doing what everyone he knows does, selling crack on a corner, or people who are undermining our democracy by successfully conspiring to sell their public office?” After Judge Wolf spoke Carmen Ortiz spoke: “You heard what Judge Wolf said inside, that somehow it’s striking that elected officials think their good works (make the case) that a little corruption is OK. It’s not OK,” she said. “I am hoping by these prosecutions, the sentences that have been given out, that all elected officials — not just on Beacon Hill, but in the state of Massachusetts — will realize that these are serious crimes.” Overreach in the prosecution of a good citizen when the only intent was to make the world better while ignoring the undermining of our democracy by lower tier public servants does not meet the standard!! The most dangerous criminals in our society are very low lying fruit! The corrupt US justice system is robbing Americans of life, liberty and property. The citizens of this country want their rights back; they are tired of living in fear and having all for which they worked taken away on the whim of a corrupt public servant(s).

  18. Tony C. 1, January 26, 2013 at 6:10 pm

    I have long been skeptical of the essentially unlimited power of prosecutors. I have read of D.A.s refusing to prosecute what were clearly unwarranted fatal shootings by police officers. That is far too much power to put in their hands, it is essentially the power to pardon crimes, even straight up casual murders of citizens, by simply never bringing a case.

    As for the rest, Mike: A depressingly accurate assessment indeed.
    Indeed, it destroys the jury system created in three of the Constitutional Amendments we call “The Bill of Rights”:

    A legal historian once said in the late 19th century:

    “It is remarkable that no History of Trial by Jury has ever yet appeared in this country.”

    (History of Trial by Jury). The US Constitution, our supreme law, provides us with three distinct juries.

    One such jury is the criminal grand jury (5th Amendment), another is the criminal petite jury (6th Amendment), and the third is the civil petite jury (7th Amendment).

    Without an adequate understanding of the experiences of our forefathers and foremothers who founded this country, we won’t understand why all free people must have a robust trial-by-jury system.

    (Why Trial By Jury?). As goes the jury system goes the criminal justice system, and as Mike S pointed out, as goes the criminal justice system goes public freedom.

  19. What Justice Holmes said. And I also mean on the part of evil, Mike. “While I don’t believe, or find comfort in the religious concept of “soul”, I do believe that we become somehow twisted emotionally if we allow ourselves to be seduced by the rewards of bad behavior.” That is the description of giving in to temptation for the sake of selfish motive(s). Sometimes intent is irrelevant and evil is in the action and the outcome. Simply because Ortiz either didn’t examine her actions carefully or simply didn’t care she was engaging in an injustice for her personal benefit does not excuse the evil outcome. Murder without intent is still manslaughter. Intent is really only relevant to the degree of culpability. It’s the same discussion we’ve had about the difference between Hitler and Reinhardt Heydrich. While both men are culpable for the actions of the Nazis, Reinhardt is arguably more so because of the differences in their individual intent.

  20. A baker in England was once charged with baking 12 loaves of bread on Sunday. Baking on the sabbath was illegal. He was charged with 12 counts. The decision by, I believe it was Lord Chief Justice Hale was, guilty of one count. What the law prohibits is baking on Sunday, not loaves of bread.

    The rationality Hale found in the law has in large part been extinguished. Prosecutors whether state or federal by the exercise of the charging function, have a tremendous ability to determine punishment. Pile on charges, add aggravating factors or enhancements which many times carry mandatory imposition of lengthy prison terms and an accused may be facing the 30 or 50 years that Aaron Swartz was being menaced with.
    Of course pursuant to the offered plea bargain, he may have only received 6 months in prison. Or maybe his attorney was telling him that though the judge will generally give great weight to the prosecutor’s recommendation and likely follow it, the court is not bound to follow it and may sentence you to up to 30 years. Of course we can argue for strait probation but I must tell you Aaron that the court is much more inclined to follow the government’s recommendation than the defense recommendation. Now Aaron what would you like to do?

    Seems like the available choices became just a little too overwhelming for young Mr. Swartz to cope with. Maybe the prospect of even a week in jail was so frightening to him that he was simply unable to see a way to get through the ordeal.

    Many states and I believe the feds have some type of tariff system for sentencing. A vertical axis for seriousness level of the crime and a horizontal axis that reflects criminal history. Where the offender intersects on the grid will encompass a standard sentence range. The standard sentence range will typically represent a high and low sentence in months within which the judges authority to sentence is constrained. There are frequently very limited circumstances that allow for a sentence outside the applicable range, Consequently how the conduct in question is charged by the prosecutor is the single most important factor in the disposition of the case.

    Previously, before the 70’s and 80’s establishment of these sentencing reforms, judges possessed broad discretion to consider the prosecution and defense arguments as to the appropriate sentence and then could structure a sentence that the court determined represented justice with very few limits. Judges actually judged in many cases. They were an important check on prosecutorial abuse of power. It may be time to reconsider the wisdom of consolidating so much power in the hands of the prosecutor.

    Prosecutors in California accomplished third strike, 25 years to life sentences for thefts involving a golf club and several videotapes respectively. The sentences upon conviction were mandatory. The prosecutor could have avoided the ridiculously costly result but elected not to. Invariably they wanted to maintain their ability to tout their tough on crime credentials in their next run for office. No politician has ever lost an election by demagoging that they are tough on crime. I would wager that there would have been many judges in the above examples that would have been inclined to sentence the non violent recidivist miscreants in the above examples to a stout five or ten year sentence and call it a day.

  21. When you are a prosecutor and over charge a single person then you step into the catagory of igPay or LEO (Law Enforcement Offender). Here she was way out of bounds. She would have been prosecuted by the United States in the Nuremburg War Crimes trials after WWII. Google: The Judge’s Trial.

    They have garbage pickup in that state dont they? That is what she is now entitled to do on the public tit. Otherwise she should go be a divorce lawyer in private practice.

  22. I have never agreed with the current implementation of civil forfeiture laws. To me they amount to excessive fines and are unconstitutional. For example, The fines are set by statute, such as $5,000 for Gross Misdemeanor at the maximum, or 20K for certain felonies. Yet, if someone manages to get an even slight nexus between the crime and the property they can seize a 500,000 dollar house.

    The courts then went to a true abuse of the public here when they declared that a seizure hearing, of course heard by the senior law enforcement official in the jurisdiction (sheriff of police chief of the seizing agency) was considered “due process of law”. It was a true sham and it has been around in this state for 20 years or so.

    I can see the contraband issue or moneys obtained directly from the criminal activity being seized, such as proceeds gotten from the sale of stolen property. But just because a person commits a crime in their residence it does not constitute proceeds in my book.

    In my entire career I only had two or three times where I initiated a seizure proceeding involving money. (though I had regularly seized contraband) Everything else I did not consider a seizure to be reasonable.

    Sometimes there are folks who are a bit greedy when it comes to seizing the cash cow and milking it dry.

  23. Lex Manifesta,

    I was sleeping (+6H ET) so MikeS said it first.

    You paint a path which entails, as I understand it, a return to a judge function, no limitation on minimum sentences, and an hopefully a charge for baking, not the loaves of bread (of course number does enter when we differentiate casual from business violations).

    That is great start. And Darren’s comments and those by others showing the innate corruption in the bureaucratic process are interesting ares we can hope to improve.

    Now I am taking my re-infected cold to bed.

    So happy to see the fine material generated here.

  24. Carmen Ortiz is not done with the Motel Caswell owner, apparently:’re_not_done_yet

    U.S. Attorney Carmen Ortiz said her office is weighing an appeal against a Tewksbury motel owner who criticized her for prosecutorial bullying last week after he won his battle in the feds’ three-year bid to seize his business, citing drug busts on the property.

    “This case was strictly a law-enforcement effort to crack down on what was seen as a pattern of using the motel to further the commission of drug crimes for nearly three decades,” Ortiz said in a statement. “We are weighing our options with respect to appeal.”

  25. It is interesting how the sad suicide of one white man who was harassed by excess charges has garnered so much attention when the full force of the Federal DOJ is brought down on minorities on a regular basis. Was the Swartz case the final straw or does society care more about the white victims of prosecutorial abuse?

  26. rafflaw: I think society cares about whatever events the media (which includes the Internet) chooses to highlight and pound the table about. I think they care about drama and conflict and perceived unfairness, whether wrought by nature or man.

    If there is blame to go around for a racial bias, it belongs partially to the media but mostly to us; the media (including the Internet) is always on the hunt for traction and eyeballs, stories about routine overreach of LEOs fails to reap either.

  27. Puzzling,

    That follow up link was a good catch. I believe Ms. Ortiz will let nothing go in pursuit of her identity of a tough prosecutor. Psychologically she must justify all of her actions, perhaps to keep her own self estimation intact.

  28. Is Carmen Ortiz related to Carmen Miranda? And if so why do we not get a warning when she entered the public domain. Carmen Ortiz sure is making a name for herself. If a hacker gets 35 counts piled on him what does she do to a wacker? And if she is related to Carmen Miranda and we did not get a warning, what happened to the hat? Inquiring minds who watch old movies want to know.

  29. Mike,

    Regarding John J. O’Brien who was Probation Commissioner here in Massachusetts: The Boston Globe Spotlight Team did a series of stories about him and patronage in his department. The man is a bad actor!

    I know two very qualified candidates who were not hired by the department because they had no political connections.


    Patronage in the Probation Dept.
    A Globe Spotlight Team report on corrupt hiring and promotion practices within the Massachusetts Probation Department, and coverage of the investigation of the agency that followed the stories.

    One of the Boston Globe’s Spotlight Team’s articles:

    An agency where patronage is job one
    The state Probation Department once set the standard for the nation in rehabilitating criminals. But nine years ago the Legislature freed it from meaningful oversight, and the results were predictable: budgets soared, and the welcome mat was out for hundreds of job seekers with political juice.
    Globe Staff / May 23, 2010

    By any measure, Deirdre I. Kennedy was an outstanding candidate for chief probation officer at West Roxbury District Court. A Wellesley College graduate with two master’s degrees, Kennedy was a streetwise veteran of the Dorchester courthouse who spoke fluent Spanish. She was also a proven leader who had run an antidomestic violence program that won nearly $8 million in federal grants.

    But, in the closed world of the Massachusetts Probation Department, dazzling credentials scarcely matter. Probation Commissioner John J. “Jack’’ O’Brien chose the 73-year-old father of a state legislator instead, doing a favor for then-House Speaker Thomas M. Finneran, one of O’Brien’s key political mentors, who said he sought the promotion for James J. Rush as a “capstone’’ to the man’s 41-year probation career.

    The top judge in West Roxbury warned O’Brien that Rush was not up to the task, and his two-year tenure turned out to be a fiasco. Rush clashed with five female employees who alleged that he threw tantrums, tossed papers at them, and slammed the door in one woman’s face. He abruptly retired in September 2006, leaving behind a sex and race discrimination lawsuit filed by two of the women, but taking home a boost in his pension thanks to his late-career promotion.

    Rush’s quick exit gave O’Brien a second chance to take the advice of Judge Kathleen E. Coffey, who recommended Kennedy for the job. Instead, O’Brien chose another politically connected candidate: a veteran probation officer who has donated $2,100 to Treasurer Timothy P. Cahill, an O’Brien ally who employs O’Brien’s wife and one of his daughters.

    After 12 years in charge, Jack O’Brien has transformed the Probation Department from a national pioneer of better ways to rehabilitate criminals into an organization that functions more like a private employment agency for the well connected, the Spotlight Team has found.

    O’Brien’s agency now employs at least 250 friends, relatives, and financial backers of politicians and top court officials, the Spotlight review found, including children of US Representative William D. Delahunt, former mayor Raymond L. Flynn of Boston, and former Senate president William M. Bulger. The agency has also hired House Speaker Robert A. DeLeo’s godson, who, at 28, is now the youngest chief probation officer in Massachusetts.

    O’Brien has taken care of friends, too, finding jobs for the children of his Boston College football teammate, for a friend who ran a fur shop, for a former plasterer friendly with Cahill, and promoting two probation officers who moonlight as bartenders at a Northampton pizza joint frequented by one of his top deputies. Along the way, O’Brien’s family has also benefited…

    While O’Brien’s reign has been rewarding for top legislators and his inner circle, the pervasive intrusion of politics and favoritism has, according to interviews with a broad array of Probation Department personnel, badly damaged the morale of an agency with a big job to do: supervising tens of thousands of those convicted of drunken driving, sex offenses, and other crimes who are serving their sentences in the community. A six-month investigation by the Spotlight Team also found that:

    ■ The department is beset by a “pay to play’’ mentality in which ambitious employees, whether qualified or not, make campaign contributions to key politicians in hopes of advancing their careers. “You’ve got to have political juice,’’ complained one probation officer who was passed over for promotion in favor of a less experienced but politically connected candidate.

    Since the Legislature, at Finneran’s urging, transferred power over hiring from judges to O’Brien in 2001, Probation Department employees’ donations to legislative campaigns have more than doubled, a Spotlight Team analysis shows, rising from $23,413 in 2002 to more than $55,000 in 2008. Most of the money goes to just 10 powerful legislators, including DeLeo, Petrolati, and two others who have immediate family members working for the department.

    ■ Promising candidates who don’t have political connections are routinely passed over to make way for the politically wired. O’Brien, for example, didn’t promote veteran probation officer Karen Jackson to assistant chief probation officer in 2005, even though she was the unanimous first choice of a hiring committee at Milford District Court that included the local judge and Jackson’s boss, a chief probation officer. Instead, O’Brien hired the grandniece of then-State Representative Marie J. Parente.

    Jackson said that when she called Parente, the lawmaker said she felt guilty to have lobbied for her relative, who initially was ranked in the middle of the pack of candidates. “The fix was in,’’ said Jackson. “If you don’t know anyone, you’re not going anywhere.’’

    Parente said she has repeatedly helped Jackson throughout her career in the department. The former lawmaker said she does not recall whether she lobbied for her relative’s promotion. “I was always careful about the conflict-of-interest law,’’ Parente said. “I truly can’t remember what I did for her.’’

    ■ Lax oversight of the collection of fines and court costs paid by probationers has left the department, which handles more than $70 million a year in cash, vulnerable to theft. The Spotlight Team has learned that the state’s trial court, after an embezzlement scandal in the Lawrence probation office, has identified five other probation offices that have multiple deficiencies in the way they handle and account for funds. A cashier at a sixth office, in Stoughton, resigned in August after allegedly stealing thousands in court-ordered payments from offenders.

    The alleged theft of $2 million from the probation office in Lawrence District Court went on for three years despite two formal warnings from outside auditors that the clerk, Marie Morey, had almost no supervision, appeared to use irregular bookkeeping methods and couldn’t explain some missing funds. Ultimately, the Administrative Office of the Trial Court — not the Probation Department — discovered the scope of the alleged crime. Morey has pleaded not guilty.

    Yet the regional supervisor who oversaw the Lawrence District Court probation office, Jeffrey L. Akers, is still on the job and says he has little knowledge of the scandal. O’Brien said in a statement that he had no plans to discipline Akers because it’s up to court administrators to oversee “the financial integrity of the court.’’

    Akers’s written job description, however, calls for him to provide “technical assistance’’ to Lawrence and other probation offices in “fiscal matters and personnel issues.’’ Moreover, State Auditor A. Joseph DeNucci’s scathing 2007 report finding discrepancies in Morey’s bookkeeping was addressed to probation officials, who formally promised to fix the problems.

    Chief Justice Robert A. Mulligan, chief administrator of Massachusetts’ trial courts, said he is frustrated by the apparent lack of accountability by probation. “There was absolutely no oversight,’’ he said.

    ■ In three cases, politically connected employees with histories of alleged misconduct or sloppy work avoided serious career fallout. For example, Worcester police fruitlessly complained to O’Brien in 2008 that associate probation officer Ashley Losapio, the stepdaughter of a judge, had compromised an investigation by leaking information to criminals.

    Police say Losapio admitted hanging around with “bad guys,’’ and had the telephone numbers of drug and gun suspects programmed into her cellphone. While she told police she never gave the suspects information about criminal matters, she acknowledged that she would tell them whom she saw in court.

    The Worcester district attorney’s office said it found no probable cause to prosecute Losapio, but then-Detective Captain Edward J. McGinn Jr. wrote to O’Brien that “she is not a suitable person to serve this community as a probation officer.’’ McGinn said he’s never heard back from O’Brien. Since then, Losapio has been transferred. She continues to work for probation, and her pay has increased by nearly $3,000 a year.

    McGinn, now Worcester’s deputy police chief, said his investigators believe Losapio continues to associate with known criminals.

    “How on Monday through Friday from 8 to 4 can you sit down and try to guide a probationer, try to straighten their lives out . . . and then go run with them at night?’’ McGinn said in a recent interview.

    Losapio did not respond to multiple messages left at her home and office. O’Brien’s office said the matter was “fully investigated, resulting in the appropriate action.’’

  30. Give the discussion that ensued with this blog it occurs to me that there are many different topics arising from it that call for a more detailed treatment. The entire issue of RICO for instance and of its Civil Forfeiture aspect. As I noted RICO was a measure specifically intended to reign in the Cosa Nostra (Mafia if you will). It made it through because “supposedly” the government did not have enough “weapons in its arsenal” to fight organized crime. With that “noble” cause the passed this legislation with little dissent. To my mind it has always been an “unconstitutional” overreach of prosecutorial power. The civil forfeiture procedures not only are unfairly applied, but also serve to impoverish the defendant in terms of hiring defense counsel and increase the pressure upon them by putting their families at financial risk.

    The sad truth is that the Cosa Nostra (or Mafia) while greedy and murderous, never was in the “big leagues” of American Organized Crime. They and all the other “Mafias” were “bottom feeders” of criminal activity in this country. The real criminals exist at high corporate levels, but we rarely see prosecutions of them. It’s true that they got Bernie Madoff, but in truth that was because he swindled wealthy people, victims whose needs prosecutors cater to. Martha Stewart at worst committed some low level “insider trading” in one instance, but was sent to jail. Insider Trading is common place among the elite, yet it is almost never noticed, much less prosecuted.

    John Gotti was a murderous thug no doubt. He was never the “Godfather” type, portrayed in the movies. He never had that kind of power. Yet he was incautious enough to play his role publicly, basking in its publicity to serve his massive ego. He was prosecuted 7 times and won acquittal the first 6 times because of his brilliant lawyer Bruce Cutler. At the 7th trial, legal skulduggery
    was practiced by the prosecution, Bruce Cutler was not allowed to represent Gotti and guess what they finally convicted him. Is that really an example of impartial justice. Notably, Sammy “The Bull” Gravano, Gotti’s “Underboss” was the chief witness against him. In his testimony Sammy admitted to 22 murders.
    In recompense for his testimony Sammy was given a brief sentence and afterwards went into the Witness Protection Program. Interestingly, under his new identity Sammy was arrested and convicted of drug dealing. Is this system really the “Justice” that our ideals call for? When one thinks of a person committing 22 murders, admittedly “hits”, can we not classify that person as a “serial killer”. How then did Sammy ever get out of jail?

    Perhaps in the minds of our prosecutors someone who commits “murder for hire” is merely performing an illegal business function because it is usually “nothing personal”. Whereas a “serial killer” is doing it for pleasure, not business and in our puritanical society pleasure is a dirty word.:)

  31. “Regarding John J. O’Brien who was Probation Commissioner here in Massachusetts: The Boston Globe Spotlight Team did a series of stories about him and patronage in his department. The man is a bad actor!”


    Thank you as usual for providing ample backup material documenting John J. O’Brien, who was indeed from reading it a “bad actor”. His example, and the others were used to show the wrongness of prosecutorial overreach. One could assume that none of those in the three examples were exemplary citizens. My problem is ever with prosecuting those who commit crimes. My problem is with prosecutors who tend to focus only o the vulnerable criminals, while being afraid to go after the really dangerous criminial element in our society. My focus is also on the use of “jerry-built”, ill advised, prosecutorial methodologies, that in their enactment escaped close scrutiny because they were passed in a storm of adverse publicity highlighting certain egregious infractions that were hard to remedy.

  32. Mike: I believe the distribution of intelligence in sociopaths is, if not exactly the same as the general population, still a bell curve not much offset from the one that applies to the general population.

    On the right side of that bell curve lie some wicked smart sociopaths, and with nearly 230,000,000 adults in the USA, we have about 4,600,000 sociopaths, and it should not surprise us to find about 94,000 people being hard-core sociopaths with IQs over 150 (the 2% level).

    The reason I think that makes a difference is because the primary value of high IQ (especially as we measure it) is the ability to reason through difficult problems, and spot patterns that escape 98% of the rest of the population.

    We should not be too surprised that ruthless people out-compete others for jobs that come with prestige, power, money and some immunity from the law, and we should not be surprised if the smartest of those out-maneuver (and then employ and outrank) the less smart of those.

    I am just sayin’, I would not be surprised if somebody with a sociopathic disregard for the harm they do to innocents found a well-paid, prestigious job where they could do whatever they wanted to ‘suspects’ without reprisal by claiming they were just doing their job, by the rules.

    I would not be that surprised if Ms. Ortiz found the suicide of Swartz both funny and satisfying.

  33. Mike,

    I don’t disagree with you. I’m frustrated that our government has only given most of the banksters of Wall Street a slap on their wrists and no jail time–while Ortiz wanted to throw the book at Aaron Swartz.

    There was an excellent discussion about Swartz’s story on Up with Chris Hayes yesterday.

    Synopsis ▼
    Author and professor Susan Crawford, Harvard professor Lawrence Lessig, and the Up with Chris Hayes panel reflect on Internet piracy, the difference between physical and intellectual property, and the causes that Aaron Swartz was committed to.

    Here’s a link to a video excerpt of the discussion:

    Up with Chris Hayes: The legacy of Aaron Swartz

  34. “I am just sayin’, I would not be surprised if somebody with a sociopathic disregard for the harm they do to innocents found a well-paid, prestigious job where they could do whatever they wanted to ‘suspects’ without reprisal by claiming they were just doing their job, by the rules.”


    You’ve hit on the flaw in my defense regarding evil mindset. Let me put this with complete honestly to illustrate that it isn’t my logic, but my emotions, that lead me into this logical bind. My intellectual view of humanity and our world is quite dark. My pessimism as to the eventual outcome of humanity, far exceeds my optimism. This is also true about my outlook on America’s prospects for escaping a the clutches of feudalism.

    Yet from a psychological viewpoint having such a dark outlook only breeds despair. I’m too happy with my own life to allow it to become tinged with despair and so I consciously adopt the outlook of a naive optimist, in all areas of my life. Were I to not adopt this psychological outlook, given the tragedies I experienced and seen in life, then it would be hard to stave off depression. In essence, while I’m not blinded to the true evils of this world, sociopathy is among the worst, emotionally I refuse to let this perspective reach the position where life becomes pointless. “Do not go gently into the night” was the phrase I kept repeating to my self as I was dying of heart disease before my transplant. This mindset is my affirmation of that phrase.

  35. Mike,

    Here’s an opinion piece from The Boston Globe:

    A crisis of values at MIT
    By John E. Sununu
    Globe Correspondent
    January 21, 2013

    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.

  36. Carmen Ortiz’s Very Bad, Awful Month
    By Charles P. Pierce

    It has not been the best 2013 so far for Carmen Ortiz, the U.S. Attorney in Boston and once-rising political star in the firmament of the Commonwealth (God save it!). First, her office relentlessly pursues Internet activist Aaron Swartz for a crime that the purported “victim” said was no big deal, guaranteeing that any attempt she makes at running for anything ever will have every hacker in the universe attached to its hindquarters. (To say nothing of congresscritters , who are drafting bills in response, and retired federal judges.) And now, as she’s still being fitted for the role of Inspector Javert, another one of her signature hardball prosecutions blows up in her face.

    The feds first tried to grab Caswell’s property in 2009 under drug seizure laws, citing numerous drug busts at the motel. Caswell’s defense team argued that he was not responsible for what guests did. And his lawyers found there was actually more drug activity at nearby businesses, and theorized the government was going after Caswell, who has no criminal record, because his mortgage-free property is worth more than $1 million…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.

    Civil forfeiture is one of the truly odious products of the war on certain kind of drugs, wide open for corruption and for prosecutorial flexing. If it is allowed to exist at all, the whole system should be re-examined and placed under strict regulation and oversight. Russ Caswell got lucky. He had good lawyers. If nothing else, the whole thing should be a reason to examine the powers we so willingly cede to our prosecutors in order to keep us “safe” from the many vague threats that the government finds so helpful.

  37. “Author and professor Susan Crawford, Harvard professor Lawrence Lessig, and the Up with Chris Hayes panel reflect on Internet piracy, the difference between physical and intellectual property, and the causes that Aaron Swartz was committed to.”


    Thank you again for this further material. Internet Piracy, Intellectual Property and copyright encroachments are major issues in the battle to regain our freedom. With a mainstream media and press in corporate control, the internet has become the most powerful tool for dissemination of information that counters propaganda. This is every bit as crucial a battle as any other issue, because if lost, the ability to communicate dissent becomes lost.

  38. “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.”

    The terror induced in Aaron from “even” a six month jail sentence must have been unbearable. I’ve written before about the 8 hours I spent in a jail cell because I lacked $10 to make $25 bail on a minor traffic violation in Suffolk County, NY. Those 8 hours, naked in a bare jail cell, seemed an eternity. Many who have never experienced even the mild inconvenience I suffered, are blissfully ignorant of how imprisonment acts upon ones mind and fears. Aaron’s terror was not groundless and his potential punishment was torture, especially considering the nature of his “crime”.

  39. Thanks for the FDL link, DonS.

    Homeland Security’s Napolitano invokes 9/11 to push for CISPA 2.0

    Published: 25 January, 2013, 21:33

    “In an attempt to scare the public with a looming cyber attack on US infrastructure, US Homeland Security Secretary Janet Napolitano is once again pushing Congress to pass legislation allowing the government to have greater control over the Internet.

    Napolitano issued the warnings Thursday, claiming that inaction could result in a “cyber 9/11” attack that could knock out water, electricity and gas, causing destruction similar to that left behind by Hurricane Sandy.”

  40. Refer to previous comments (Homeland Security’s Napolitano invokes 9/11 to push for CISPA 2.0)

    Activist decries CISPA as ‘a Patriot Act for the Internet’

    By Muriel Kane
    Sunday, April 29, 2012 18:10 EST

    According to Internet activist Aaron Swartz, the proposed Cyber Intelligence Sharing and Protection Act (CISPA), which passed the House of Representatives this week, is even worse than the Stop Online Piracy Act (SOPA) that was sidelined by a public outcry last winter.

    Swartz told Russia Today that whereas SOPA was exclusively “about giving the government the power to censor the Internet,” CISPA has the same kind of censorship provisions but “is more like a Patriot Act for the Internet.”

    “It sort of lets the government run roughshod over privacy protections and share personal data about you,” he explained, “take it from Facebook and Internet providers and use it without the normal privacy protections that are in the law. … It’s an incredibly broad and dangerous bill.”

    “The thing about this bill is it doesn’t really have any protections against cyber threats,” Swartz added. “All it does is make people share their information. But that’s not going to solve the problem. What’s going to solve the problem is actual security measures, protecting the service in the first place, not spying on people after the fact.”

  41. Mike: As always, I think denying the cold reality does more harm than good. In this particular case, I believe it is important to understand that our societal ills are almost always flowing from the poisoned spring of sociopathy, both the biological kind and the “effective sociopathy” brought about by non-sociopathic businessmen and politicians making decisions on abstract data while personally far removed from the devastating impacts their decisions will have on living people.

    To me, any solutions that do not address that continuing fount of ruthless exploitation will only treat the symptoms; and like water the sociopaths will just find another crack to seep into, another path around the obstacle.

    I do not see that as a reason to despair, I see it as an engineering constraint in finding a solution. The objective (to me) is to find the balance between minimizing the impact of sociopaths while retaining the rights and liberty intended by the Constitution.

  42. Mike,

    A New Twist in Carmen Ortiz’s Vendetta Against Aaron Swartz
    By TechDirt, Sat, January 26, 2013

    Things just keep looking worse and worse in the Carmen Ortiz, Stephen Heymann vendetta against Aaron Swartz.

    Now it’s come out that state prosecutors, who were originally looking into the case had no interest in pursuing felony charges or prison time… until Carmen Ortiz and her team showed up. Instead, state prosecutors had focused on the initial charges: “breaking and entering in the daytime” which they expected “would be continued without a finding, with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner.” Instead, the report notes:

    Tragedy intervened when Ortiz’s office took over the case to send “a message.”

    In case you were wondering what “continued without a finding” means, Harvey Silvergate (author of Three Felonies a Day) explained to Declan McCullagh:

    “Continuance without a finding” was the anticipated disposition of the case were the charge to remain in state court, with the Middlesex County District Attorney to prosecute it. Under such a disposition, the charge is held in abeyance (“continued”) without any verdict (“without a finding”). The defendant is on probation for a period of a few months up to maybe a couple of years at the most; if the defendant does not get into further legal trouble, the charge is dismissed, and the defendant has no criminal record. This is what the lawyers expected to happen when Swartz was arrested for “trespassing at MIT.” But then the feds took over the case, and the rest is tragic history.

    The report above also notes that Ortiz is in some additional hot water, as another one of her overreach cases, involving an attempt to seize a family-owned motel in Massachusetts by claiming that it was “facilitating drug crimes” has failed miserably, tossed out by the magistrate judge.

    Not only was it noted that there were only 15 drug-related incidents over a 15 year period (during which 196,000 rooms were rented out), but also, the motel owners worked closely with local police to deal with drug issues and that other local businesses that had drug incidents were not targeted by Ortiz.

  43. Elaine, the worse things continue to look, the more likely it is that the wagons will be circled or, OMG, this stinkin trail could lead right up to Eric Holder’s door, and maybe higher! Maybe Ms. Ortiz will just find this a propitious time to retire from her office to spend more time with the family. Heymann however, is too young for that. He may be a poison pill around Boston.

  44. “Tragedy intervened when Ortiz’s office took over the case to send “a message.”


    That idea of “sending a message” has reverberated with this case and indeed in other instances of prosecutorial overreach. If you think about it what exactly does that mean and what sort of stupid theory of prosecution is it?
    Back in 1600’s England pickpockets caught were hung. Yet there is ample evidence that pickpocketing was rampant at public hangings. We are assured by death penalty advocates that it serves as a deterrent, yet murder continues apace. “Sending a message” is merely propaganda speak to justify persecution by prosecution. Aaron wasn’t a criminal, he was an activist. So Ms.Ortiz message was really give up your opposition to government policy.

    “Not only was it noted that there were only 15 drug-related incidents over a 15 year period (during which 196,000 rooms were rented out), but also, the motel owners worked closely with local police to deal with drug issues and that other local businesses that had drug incidents were not targeted by Ortiz.”

    Given this I suspect there is still more to this prosecution than meets the eye. Was the motel’s land somehow valuable to someone with power? Had the owned “pissed off” someone in power. Beyond the silliness of the prosecution I suspect there may have been some other motive that drove Ms.Ortiz in this case.

  45. “I do not see that as a reason to despair, I see it as an engineering constraint in finding a solution. The objective (to me) is to find the balance between minimizing the impact of sociopaths while retaining the rights and liberty intended by the Constitution.”


    I do view the problem of sociopathic behavior the same as you do and think it the root cause of human societal dysfunction. Psychologically though, we all have our personal ways of dealing with life optimally. For some it is retreating into religious or jingoistic mythology and taking comfort in denying reality. We both refuse to do that in our lives and are sophisticated enough to not buy into propaganda and/or mythology. That we choose different means of dealing with this stark reality of the world represents merely a difference of personality with no judgment needed as to which works better.:)

  46. Well since you mentioned Lennon, I’m reminded of “The U.S. vs John Lennon”…

    CIA-FBI Cooperation: The Case of John Lennon

    by Jon Wiener
    Posted: September 27, 2006


    “Another document provides the source of the Agency’s information: CIA Operation CHAOS. It was secret, illegal program of surveillance of domestic political dissent – a violation of the CIA charter. The Agency sent intelligence reports on antiwar activists first to President Johnson and later to Nixon, as well as to Henry Kissinger and John Dean. Under Nixon, the CHAOS program was expanded to 60 agents. Its existence was documented in 1976 by the Senate’s “Church Committee,” which investigated CIA and FBI misconduct and was headed by Idaho Senator Frank Church.

    Fast-forward to the summer of 2000, when, according to the 9-11 Commission, the CIA had the names of two men who would become hijackers on 9-11 — Khalid al-Mihdhar and Nawaf al-Hazmi — but somehow the FBI failed to get the information and/or investigate them. The problem: how to get the CIA and FBI to share information about future al-Mihdhars, but stop the CIA and FBI from sharing information about future John Lennons?

    The Church Committee Final Report, issued in 1976, addressed this problem in a way that is remarkably relevant today. Their basic conclusion: “intelligence activities have undermined constitutional rights . . . primarily because checks and balances designed by the framers of the Constitution to assure accountability have not been applied.” The problem is greater “in time of crisis,” when “the distinction between legal dissent and criminal conduct is easily forgotten.”

    Yes, the Church Committee worked before the US became the target of terrorist attack. But they understood one key principle: “Unlike totalitarian states, we do not believe that any government has a monopoly on truth.” Therefore challenging official policies and arguments is crucial to a democratic society. No one should have to “weigh his or her desire to express an opinion, or join a group, against the risk of having lawful speech or association used against him.”

    The Church Committee made 95 recommendations. Number one: Congress must “make clear to the Executive branch that it will not condone, and does not accept, any theory of inherent or implied authority to violate the Constitution.”

    When Lennon made plans for “a caravan of entertainers,” he wasn’t conspiring to engage in terrorism or other criminal acts. All he was saying was give peace a chance. Thirty years ago the Church Committee argued that Congress should create strong safeguards to prevent “interagency sharing of intelligence information” from violating fundamental rights. We need those safeguards today more than ever.


    Jon Wiener is professor of history at the University of California, Irvine, author of Gimme Some Truth: The John Lennon FBI File, and historical consultant on the documentary “The US vs. John Lennon.”

    (Operation CHAOS, then. One of these days, perhaps we’ll learn about the program/s that replaced CHAOS.)

  47. As has become more clear with Obama as president, the Justice Department is willing to zealously go after leakers who did no harm to national security. They are willing to zealously pursue Internet activists like Aaron Swartz. They will keep coming back with more and more charges to scare activists into informing on others or taking a plea deal. – Kevin Gosztola

    CIA Whistleblower John Kiriakou, Sentenced to 30 Months in Jail, Wears Conviction as ‘Badge of Honor’

    By: Kevin Gosztola Friday January 25, 2013 10:11 am

    Lanny Breuer, the head of the criminal division of the Justice Department, and MacBride both had a role in going after Kiriakou. They currently pride themselves on the work they’ve done going after people like Kiriakou. The government has already invoked Kiriakou’s conviction in the case of Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks. What they accomplished with his case gives them the potential to restrain the ability of future targets of government prosecution to mount a defense.

    To this, Kiriakou reacted:

    I don’t think I am overstating this when I say I feel like we’re entering a second McCarthy era where the Justice Department uses the law as a fist or as a hammer not just to try and convict people but to ruin them personally and professionally because they don’t like where they stand on different issues.

    I know Lanny Breuer. Lanny Breuer’s my former attorney from the Scooter Libby case but I think that Lanny Breuer became a zealot when he went to the Justice Department and he drank the Justice Department’s anti-whistleblower kool-aid. And I think we see the same thing with Neil McBride in the way he’s targeting WikiLeaks with a grand jury when in fact he should be targeting the bankers who have ruined our country and the crooked politicians who shirk their responsibilities to oversee the intelligence community.

    Though he is going to jail, Kiriakou stated, “I am wearing my conviction as a badge of honor.”

    I am proud that I stood up to our government. I stood up for what I believed was right conviction or no conviction. I mean they can convict anybody of anything if they put their minds to it, but I wear this as a badge of honor. I am not a criminal. I am a whistleblower. The thing that I blew the whistle on is now the law of the land. Torture is illegal and it’s officially abandoned in our country and I’m proud to have had a role in that.

    The only CIA officer to go to jail for torture is now officially an officer who never tortured anybody

    As has become more clear with Obama as president, the Justice Department is willing to zealously go after leakers who did no harm to national security. They are willing to zealously pursue Internet activists like Aaron Swartz. They will keep coming back with more and more charges to scare activists into informing on others or taking a plea deal. They may even join in the prosecution of some fallen sports icon for their posterity.

    However, individuals involved in committing the felony of warrantless wiretapping or authorizing torture or senior-level bankers on Wall Street, who committed fraud and fueled the 2008 economic meltdown may move forward with their lives and never worry about going to jail. They are criminals the Justice Department lacks the courage to prosecute, or people the department does not think committed any crimes. And, as a result, those inside the department cannot be bothered to put in the kind of rabid effort they devote to prosecuting whistleblowers or activists, who in comparison to bankers or torturers have done nothing to hurt anybody.

  48. Watching shyly the big elephants’ parading around the clearing, I ask are there more clearings like this with more trumpeting elephants, or is this the only one?

    I agree a thousand times. but what do we do other than come here for comfort and to vent our bile?
    We have a brief period of traction thanks to Aaron’s impact on media, ie internet. Now they have an even eviler followup to SOPA. Aaron is not here to defeat it.

    All that was said so far is basicly good and valid. Whatever.

    But here I come again, and ask: WTF do we do about it?

    Anybody organizing immolations on Congress’ steps today. How do we kill these varmints, fleas, pests, without being killed in return. They have the retaliation machine down pat now. Anyone doubt that?

    The system is now like the NKVD/KGB: Give us a body and we will build a case against it. And a case always was executed or sentenced to Siberia.

    Any wonder why no one then dared not smile. “Are you dissatisfied, little friend?” “Forgive me, I was just a bit depressed over my mother’s death.”

    ” Help, I need somebody”!

    Yours truly, the ultimate defeatist

  49. Neapolitano is a disgrace as the head of “homeland” security. Unfortunately this dystopically name department is focused on something called The Homeland it has forgotten that actually human beings called Americans who used to have civil liberties and used to be innocent until proven guilty.

  50. Anonymous re-hacks US Sentencing site into video game Asteroids

    Summary: The U.S. Sentencing Commission website has been hacked a second time. A code distributed by Anonymous “Operation Last Resort” turns into a game of Asteroids.
    Violet Blue

    By Violet Blue for Zero Day | January 28, 2013 — 00:06 GMT (16:06 PST)

    The U.S. Sentencing Commission website has been hacked again and a code distributed by Anonymous “Operation Last Resort” turns into a playable video game.

    Visitors enter the code, and then the website that sets guidelines for sentencing in United States Federal courts becomes “Asteroids.”
    ussc asteroids anonymous

    Shooting away at the webpage reveals an image of Anonymous. The trademark Anonymous “Guy Fawkes” face is comprised of white text saying, “We do not forgive. We do not forget.”


    in a piece for the Massachusetts Lawyers Weekly, veteran Boston civil liberties lawyer Harvey Silverglate revealed that the office of U.S. Attorney Carmen Ortiz only became involved with the case after the Middlesex County District Attorney’s office was prepared to cut Swartz a deal on state charges that would have involved no jail time, perhaps a fine, and a stern admonishment not to do it again

    Silverglate argues that Ortiz’s office jumped the DA’s claim in order to “send a message.” It’s hard to see another explanation for it and, if it’s true, and against all possible odds, the whole sorry episode is even more disgraceful.

  52. US Attorney Carmen Ortiz May Appeal Carswell Forfeiture Case

    To some extent, I actually hope Ortiz does appeal. Given the extreme facts of the case (which I discussed here and here), it’s likely that the First Circuit Court of Appeals will reach the same conclusion as the trial court did. And unlike a district court decision, a court of appeals decision is binding precedent that lower courts in that region of the country must follow. But I also feel for the property owners here, who have already endured a three-year legal battle over an asset forfeiture action that should never have gotten started in the first place. Even with excellent pro bono legal representation by the Institute for Justice, they have likely gone through a painful ordeal that should not be extended any longer.

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