Congress, Constitutional Law, Courts, Criminal law, Free Speech, Justice, Lawyering, Media, Politics, Society, Supreme Court

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” http://jonathanturley.org/2013/01/18/the-obama-administrations-inspector-javert-speaks-ortiz-issues-statement-in-swartz-case/ and: http://jonathanturley.org/2013/01/15/prosecutor-of-aaron-swartz-linked-to-another-suicide-of-defendant/  It even inspired my own guest blog: http://jonathanturley.org/2013/01/19/americas-broken-criminal-justice-system/  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, http://whowhatwhy.com 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.” http://whowhatwhy.com/2013/01/17/carmen-ortizs-sordid-rap-sheet/.

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 tripadvisor.com—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.  http://en.wikipedia.org/wiki/Apalachin_Meeting  After the arrests and prosecutions coming from that meeting and the testimony by Joe Valachi (Joe the Rat) at http://en.wikipedia.org/wiki/Joe_Valachi  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?”

  2. 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.

  4. 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

  5. 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

    http://dissenter.firedoglake.com/2013/01/25/cia-whistleblower-john-kiriakou-sentenced-to-30-months-in-jail-wears-conviction-as-badge-of-honor/

    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.

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

    http://www.lennonfbifiles.com/usversusjl.html

    CIA-FBI Cooperation: The Case of John Lennon

    by Jon Wiener
    Posted: September 27, 2006

    http://www.huffingtonpost.com/jon-wiener/ciafbi-cooperation-the-ca_b_30421.html?

    Excerpt:

    “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.)

  7. “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.”

    Tony,

    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. 🙂

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

    Elaine,

    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.

  9. 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.

  10. Mike,

    A New Twist in Carmen Ortiz’s Vendetta Against Aaron Swartz
    By TechDirt, Sat, January 26, 2013
    http://www.opposingviews.com/i/technology/aaron-swartz-unlikely-face-jail-or-conviction-until-feds-decided-send-message

    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.

  11. 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.

  12. 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

    http://www.rawstory.com/rs/2012/04/29/activist-decries-cispa-as-a-patriot-act-for-the-internet/

    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.”

  14. 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

    http://rt.com/usa/news/napolitano-us-cyber-attack-761/

    “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.”

  17. “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”.

  18. “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.”

    Elaine,

    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.

  19. Carmen Ortiz’s Very Bad, Awful Month
    By Charles P. Pierce
    1/25/13
    http://www.esquire.com/blogs/politics/More_bad_News_For_Carmen_Ortiz

    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.

  20. 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
    http://www.bostonglobe.com/opinion/2013/01/21/crisis-values-mit/WxSOroQauc231s9q4phwtM/story.html

    Excerpt:
    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.

Comments are closed.