Holder Defends Swartz Abuse As Example Of Good Prosecutorial Discretion

holdereric220px-Aaron_Swartz_at_Boston_Wikipedia_Meetup,_2009-08-18_Last week, Attorney General Eric Holder left no question about the Administration’s support of the abusive treatment of Aaron Swartz by US Attorney Carmen Ortiz and Deputy US Attorney Stephen Heymann. Heymann was previously linked to a suicide in another prosecution. We have discussed the abusive prosecution earlier and Swartz’s suicide after months of unrelenting threats and coercion. Holder heralded the treatment of Swartz as an example of the “good use of prosecutorial discretion.” Swartz’s girlfriend has come forward to denounce Holder and the Obama Administration for its misrepresentations in the case.


Ortiz previously tried to dampen criticism with a statement that misrepresented facts in the case.

Holder repeated his solemn obligation to prosecute crimes but that fervent belief in the rule of law was missing when Obama promised CIA officials that no one would be prosecuted for torture. It was missing when Holder and his aides found no ability to prosecute anyone for the torture program. Of course, torture is not just a federal crime but a war crime, but it did not rise to the level of releasing academic papers for free from a collection that MIT later released to the public for free.

Holder and Ortiz sought 35 years for Swartz and amended the charges to add new counts before his suicide.

In his March 6 testimony, Holder responded to a question for Republican Senator John Cornyn about Swartz’s prosecution. Most Democrats have remained silent in support of the Obama Administration. Holder insisted that the 18 month nightmare for Swartz was just good prosecution work on display. Holder repeated Ortiz’s claim that the prosecutors were just beside themselves trying to avoid a harsh punishment in the face of an unreasonable Swartz:

As I’ve talked to the people who have looked into this matter, these news reports about what he was actually facing is not consistent with what the interaction was between the government and Mr. Swartz. A plea offer was made to him of 3 months, before the indictment. This case could have been resolved with a plea of 3 months. After the indictment, an offer was made and he could plead and serve 4 months. Even after that, a plea offer was made, of a range of zero to 6 months, that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of 6 months. There was never any intention for him to go to jail for a period longer than 3, 4, potentially 5 month range.

As noted earlier, this ignores the fact that the Administration added charges and could have reached a plea without jail time or dropped charges. Instead, they demanded jail time for Swartz. Moreover, while Holder seems confused why people are mentioning 35 years, it was his department that crowed about the potential sentence when announcing its high-profile prosecution:

AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

Swartz’s girlfriend issued a stinging rebuke:

“Eric Holder and the Department of Justice are clearly trying to mislead the Senate and the public. Holder claims that Aaron was only facing months in prison while Heymann and Ortiz were actively pursuing a penalty of 7 years if the case went to trial. If you believe you’re innocent, you should not be coerced into accepting a plea bargain that marks you as a felon for life, just because prosecutors want to boast about taking a scalp. The discrepancy between the plea deal and the amount of prison time prosecutors said they would pursue at trial violates the DOJ’s own guidelines in this regard. Holder is trying to engage in revisionist history at the same time he claims that the strict sentences pursued by prosecutors were a ‘good use of prosecutorial discretion.’

The missing prosecutorial discretion is when the Administration decided not to drop the charges when it became obvious that MIT decided the documents should be made free to the public. Yet, Holder believes radically overcharging a person who acted without desire for personal gain was “good prosecutorial discretion.” I mean, it is not like he did something minor like torture, right?

Source: Techdirt

117 thoughts on “Holder Defends Swartz Abuse As Example Of Good Prosecutorial Discretion

  1. When there is prosecutorial misconduct and unconstitutional practices by the DOJ – shouldn’t the accountability start there? We have a broken justice system and the federal judges should have checked them a long time ago. The Plea Bargain system essentially prevents the discovery process from working.

  2. Elaine,
    What I have seen over and over throughout the years, is prosecutors overcharging a defendant in order to force a plea bargain. Sometimes the overcharge is an effort to get the defendant to trade information for a lesser sentence.

    Some of the most egregious cases of overcharging have been when the prosecutor said they were going after a death penalty, but if the defendant gave up information, the death penalty was off the table, and in some cases charges dramatically reduced. That of course, depends on how valuable they consider the information.

    I have an idea Barrett Brown’s charges will come down a lot if he gives up major intelligence information on Anonymous.

  3. Previously I’ve argued for overcharging to force pleas as a matter of judicial efficiency. Over the last two years though, having seen abuse of discretion heaped upon abuse of discretion, the Swartz is the straw that broke the camel’s back. I can no longer argue that the efficiency gained has a return of any value to justice. In fact, I’ve reversed my position to the point that when prosecutors maliciously overcharge – as in there is no reasonable chance they can make the greater charge stick, I think they should be removed from office. I realize dockets are backed up and something needs to be done to alleviate that pressure, but the answer is more judges, not prosecutorial extortion. Charges need to match the crime as do penalties.

  4. The prosecutorial abuse in this case seems obvious, yet Holder has praised the prosecutor instead of sanctioning her. Unless Holder does a 360 or is replaced, the future does not look too bright in the DOJ.

  5. Even though the DOJ can break the law with impunity – is there a danger when the American public views their government as Tammy Hall on the federal level? That cynicism is not healthy for the United States when citizens lose faith in government.

  6. Elaine,
    Different lyrics, same tune. Motivation for the overcharge is different, but it is still not acceptable. Prosecutors play the game all the time, all the way from county court to Federal criminal court. All too many of them see it as a game. Sometimes it’s ego, and sometimes it is political theater.

    Example: About thirty years ago, I stopped by the office of an assistant district attorney to leave some papers. Before we had a chance to discuss the case, his phone rang. It was the secretary, telling him a defendant and his defense attorney were downstairs ready to negotiate a plea. He picked up a thin file from his desk, waving it around in the air. He said, “Look at this file. I got nothing!”

    He said, “I can fix that.” He grabbed a two-inch thick stack of offense reports off the desk and put them in the folder. Fifteen minutes later he was back. Said that when he plopped the “enhanced” case file on the table, the defendant’s lawyer took one look at it and advised his client he would be better off accepting the deal the prosecution proposed.

    Not all prosecutors are bad. There are many excellent prosecuting attorneys, and I believe the good ones outnumber the bad ones. But there are creeps out there and they are dangerous. Some of them appear to be working for the DoJ.

  7. Otteray,

    I agree that there are many fine prosecuting attorneys. The daughter of one of my best friends is an ADA. She’s very bright and energetic. She puts in long hours and makes little money.

  8. Justice Robert L. Jackson, Nurenberg Prosecutor and SC Justice, had great quotes on the nature of prosecutors- they can be great or terrible with that nearly unchecked power.

  9. John Brennan in Grad School: Destroying Democracy Helps Save It

    By Douglas Lucas on Mar 17, 2013

    http://whowhatwhy.com/2013/03/17/john-brennan-in-grad-school-destroying-democracy-helps-save-it/

    Excerpt:

    When the NCTC provoked controversy in 2011 with its database containing millions of records of U.S. citizens — casino-employee lists, flight records, the names of Americans hosting foreign-exchange students, and much more — Brennan seems to have been the one to decide to move forward with the program. Homeland Security privacy and civil liberties officials had raised concerns at the White House over new guidelines that allowed the NCTC to “mine” the database for possible criminal behavior, even without reason to suspect any wrongdoing by the Americans under surveillance. “Mr. Brennan considered the arguments,” the Wall Street Journal writes. “And within a few days, the attorney general, Eric Holder, had signed the new guidelines.”

  10. OS,

    No, not all prosecutors are the devil, but miscarriages of justice should not be the price paid for the overweening ambition and hubris of a few.

  11. Ross,

    I’m reading a book about Jackson right now…. So far I’m very impressed with his ability to withstand some of the greatest decisions in my opinion ever written…

    OS, is absolutely correct in his statements about prosecutors over charging…. And in the area of plea bargaining it’s basically one sided…

  12. Ross,

    OS said it best…. But I’ll add this…. The plea bargain is a one sided option where the defendant is scared not to volunteer info….there is no give by the prosecutor…… The trial system is supposed to be give and take in discovery…. But when the Feds can wait 4 years 364 days before charging….. Do you know what you were doing then….. And the way the discovery process works…. They can drop all the information that was requested on the date of or eve of trial…. I once got a bankers box full that way…. How the heck do you digest that much info…. What you see on TV is not the way it works most if the time in real life….

    Raff,

    I have to agree with you….

  13. The books on Justice Jackson are very interesting. One of the prosecutors at Nuremburg was Whitney Harris, He lived to age 97 and was an ACLU member in Saint Louis. He also founded a human rights foundation at Washington University. His book: Tryanny On Trial is a great account of the Nuremburg Trials and the conduct of defendants which was prosecuted.

    This dog got to meet Whitney about 37 years ago when Whitney gave some good free advice on a civil rights suit. Back when this dog was a humanoid and a lawyer.

  14. When the Plea Bargain system is used like a poker game (not based on substance) the facts/evidence of a case are never investigated and most important “confrontation” of the accused by their accusers and evidence against them (if any) is lost. Once an empty plea is accomplished, the prosecutor has no incentive to spend any more resources to get to the truth. Evidence and witness memories are lost over time. As a result of this broken system and other practices the United States has the worst incarceration rate in the entire world.

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