by Andrew Kreig 1-17-2013
The suicide of Justice Department defendant Aaron Swartz underscores the vast and often unfair power that prosecutors often wield in cases across the nation.
Swartz, 26, a web innovator and social activist, was found dead by hanging at his Brooklyn apartment after federal prosecutors in Boston made clear they would require him to face 13 felony charges for excessive downloads of free scholarly journals from a library.
The circumstances of his case may be unique. But the excessive zeal of prosecutors is all too common, as indicated by the clips below and our three years of research at the Justice Integrity Project.
In fact, the top federal judge in Massachusetts even warned the state’s U.S. Attorney Carmen Ortiz at her swearing-in against zealotry. Attorney General Eric Holder looked on during the 2010 ceremony presided over by Chief U.S. Judge Mark Wolf, a former Justice Department official who has complained for years to Holder and other Justice officials that they must do a better job overseeing their staff. Wolf, undertaking his own investigation of the Justice Department following a major Mafia case, found serious wrongdoing in the mid-1990s by more than a score of prosecutors and FBI agents.
But Ortiz, Holder and their subordinates, like so many of their predecessors, apparently pursued in the Swartz case a familiar pattern of hardball tactics and victory at all costs. At the defendant’s funeral Jan. 15 in Chicago, father Robert Swartz told the assemblage his son “was killed by the government.”
Justice Department prosecutors reportedly played hardball in plea negotiations with the defendant, a researcher at Harvard University, in requiring him to plead guilty to 13 felony charges for downloading some 4 million publications at the Massachusetts Institute of Technology (MIT) library in late 2010 and early 2011. Credentialed students are able to download limited numbers for free. Harvard Law School Professor Lawrence Lessig, an expert on computer law and an occasional mentor at Harvard to Swartz, said the prospective punishment was vastly out of proportion to the defendant’s actions.
Legal commentator Glenn Greenwald summarized recent developments this way in a Jan. 16 column in the Guardian: Ortiz’s office escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which “carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony,” meaning “the sentence could conceivably total 50+ years and [a] fine in the area of $4 million.” That meant, as Think Progress documented, that Swartz faced “a more severe prison term than killers, slave dealers and bank robbers.” Swartz’s girlfriend, Taren Stinebrickner-Kauffman, told the Wall Street Journal that the case had drained all of his money and he could not afford to pay for a trial.
New reporting by Truthout suggests a potential motive for the prosecution team, aside from the common incentive of crushing a defendant to win career advancement: Swartz had been seeking separately to obtain federal court documents as a public service in ways not authorized by the Justice Department in its plan to make them available for free at 19 libraries. The documents are normally available for free inspection at courthouses. But litigants and interested members of the public must pay copying costs and, of course, have the ability to travel to courthouses for inspection. The documents are available also for a fee via the federal electronic PACER system. .
The Boston prosecution team appears to be headed for deserved disgrace. But any shame for them is most valuable if it deters other injustices. Greenwald aptly argued that theme in his Jan. 16 column in the Guardian, Carmen Ortiz and Stephen Heymann: accountability for prosecutorial abuse. His subtitle was, “Imposing real consequences on these federal prosecutors in the Aaron Swartz case is vital for both justice and reform.” Greenwald continued:
Clippings below illustrate a tragic pattern whereby authorities exercise zeal far out of proportion to the offense or legitimate correction goals of punishment and deterrence.
Authorities indicted Swartz two years ago on wire and computer fraud charges for downloading more than 4 million journal articles and documents from JSTOR, a subscription database of journal articles. He allegedly broke into a wiring closet at MIT, and then connected his laptop to the university’s network. He then uploaded the articles to Amazon’s cloud server, authorities said, with a plan to share the the articles with the public. Swartz turned over hard drives containing the articles. JSTOR said it did not seek civil or criminal prosecution. MIT, which employed the defendant’s father on occasion as a consultant, had no made clear its position on the prosecution.
Just three months ago, Ortiz’s office, as TechDirt reported, severely escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which “carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony”, meaning “the sentence could conceivably total 50+ years and [a] fine in the area of $4 million.” That meant, as Think Progress documented, that Swartz faced “a more severe prison term than killers, slave dealers and bank robbers”.
It is urgent that this opportunity not be squandered, that this interest be sustained. The Wall Street Journal reported this week that — two days before the 26-year-old activist killed himself on Friday — federal prosecutors again rejected a plea bargain offer from Swartz’s lawyers that would have kept him out of prison. They instead demanded that he “would need to plead guilty to every count” and made clear that “the government would insist on prison time.” That made a trial on all 15 felony counts – with the threat of a lengthy prison sentence if convicted — a virtual inevitability.
House Government Affairs Chairman Darrell Issa (R-CA) wants to investigate to investigate the case. However, Issa’s recent investigations of the Justice Department “Fast and Furious” gun-walking program have been highly partisan. Issa’s work has failed to underscore that the failings or misconduct his staff has identified under the Democratic administration had parallels or roots in the Bush administration. Scant real reform will occur so long as oversight is primarily to score narrow partisan points instead of addressing such major problems as a federal and state system with more than 2 million prisoners, scant funding, and outrageously aggressive prosecutions, as in the Swartz case.
Jason Leopold at Truthout published on Jan. 15, Aaron Swartz’s FOIA Requests Shed Light on His Struggle, which introduced Swartz this way:
Swartz hanged himself with his belt in his Brooklyn, New York home on Friday. He was 26. He had battled depression and in years past had publicly written about thoughts of suicide. He did not leave a suicide note, according to police. While his supporters, family and friends come to grips with the tragic loss of such a gifted young computer programmer, who at 14, developed an early version of Really Simple Syndication, or RSS, which allowed blogs and news web sites to easily share their content, a peek at the FOIA requests Swartz filed over the past two years sheds a little light on his struggles.
Leopold described a major initiative by Swartz that may well have enraged Justice personnel, although not necessarily for good reason:
Although a majority of his FOIA requests were self-serving, it is also clear that the information he sought, particularly in areas of government surveillance, would have greatly benefited the public. However, his efforts to pry loose materials from a highly secretive administration were mostly unsuccessful. Swartz filed his first FOIA request in December 2010, more than two years after he landed on the government’s radar. He was seeking information about himself. In 2008, Swartz’s friend and fellow open government activist Carl Malamud, the founder of the nonprofit public.resource.org, wanted to make federal court documents housed on the Public Access to Court Electronic Records system (PACER) available to the public for free. Using $600,000 he raised from supporters, Malamud purchased 50 years worth of appellate court documents and posted them on his website.
Then, the government started a pilot program in which access to federal court documents on PACER would be made available to users at no cost at 17 libraries around the country. Malamud urged activists like Swartz to visit the libraries, download the documents and send it over to him so he could make it available to the public via his website. “So Aaron went to one of them and installed a small PERL script he had written that cycled sequentially through case numbers, requesting a new document from Pacer every three seconds, and uploading it to” Amazon’s Elastic Compute (EC2) Cloud server, Wired reported. “Aaron pulled nearly 20 million pages of public court documents, which are now available for free on the Internet Archive.” The court documents Swartz legally accessed were worth $1.5 million. The government shut down the PACER pilot program and the FBI launched an investigation.
We find the PACER initiative particularly interested because one of our major research topics, the federal frame-up of former Alabama Gov. Don Siegelman, involves missing federal documents in two key areas, as we have often reported. First, the impeachment documents filed in Alabama’s federal court against U.S. District Judge Mark Fuller were not listed in PACER, and were thus unavailable to future litigants who might wonder why a federal judge was subject to uninvestigated corruption allegations. Attorneys for Siegelman and his co-defendant did not learn that the federal government was enriching their trial judge until long after the trial. Courts then ruled, in conflict with a Supreme Court decision, that it was up to litigants to learn of a judge’s conflict of interest, not for the judge (o court files) to disclose such matters.
A second major federal irregularity in the frame-up is that Siegelman has never been able to obtain Justice Department paperwork, which he has sought since 2006, sowing whether U.S. Attorney Leura Canary actually recused from the case, as she claimed. My information, based on a well-placed source, is that the relevant files were removed from the Justice Department at White House suggestion as a courtesy to prosecutors rather than let them be implicated in wrongdoing. Siegelman is now serving a seven-year term on corruption charges imposed by Fuller, as a victim of, among other things,inability to access basic records.l
For such reasons, the Leopold article about Swartz’s effort to make federal records more accessible is worth reading in full. So. are other background materials on this case. Among the strands in the case and its parallels:
Huffington Post quoted a Swartz attorney as claiming the lead trial prosecutor, Stephen Heymann, Wanted ‘Juicy’ Case For Publicity.
Tom Dolan, the husband of the Massachusetts U.S. attorney Ortiz, took to Twitter to defend his wife and attack the defendant’s family.
It’s relevant to the comments in 2010 by Wolf that his experience had encompassed working in the 1970s with then-Attorney General Edward Levy to create the Justice Department’s Office of Professional Responsibility, and that his experiences then have prompted him to describe such procedures as inadequate in a number of high-profile instances. One major series of such cases, in his view, was the Justice Department’s prosecution of Mafia cases, in which it coddle some dangerous government informants. One was “Whitey Bulger, who fled Boston for years but is now facing federal charges involving 19 murders, among other crimes. Due in significant part to Wolf, for whom I served as law clerk from 1990 to 1991, the Justice Department a decade ago indicted two former supervisors of its FBI Boston office on murder charges. That history is among the clips excerpted below.
Today, I’d like to give Greenwald, a prolific writer on these themes, the last word in an excerpt from his column:
Whenever an avoidable tragedy occurs, it’s common for there to be an intense spate of anger in its immediate aftermath which quickly dissipates as people move on to the next outrage,” Greenwald wrote in the Guardian. “That’s a key dynamic that enables people in positions of authority to evade consequences for their bad acts. But as more facts emerge regarding the conduct of the federal prosecutors in the case of Aaron Swartz — Massachusetts’ US attorney Carmen Ortiz and assistant US attorney Stephen Heymann — the opposite seems to be taking place: there is greater and greater momentum for real investigations, accountability and reform.