Details Come Out On US Attorneys Withholding Evidence In Aaron Swartz Case
from the more-evidence dept
Last week, we wrote about Aaron Swartz's girlfriend, Taren Stinebrickner-Kauffman, releasing a statement accusing the DOJ of a variety of things that hadn't really been covered before, including lying, seizing evidence without a warrant and withholding exculpatory evidence. That resulted in an interesting discussion in the comments, in which a few DOJ defenders suggested that since there were no details, we were probably making this up (as if we don't have better things to do). Now, however, the details have come out. In a letter that was sent at the end of January (but just now leaked to the press), Swartz's lawyers highlight how Assistant US Attorney Steve Heymann was responsible for the charges above.The key issue is the search of Aaron's laptop. Cambridge police seized the laptop on January 6, 2011. The Secret Service did not obtain a warrant until February 9, 2011, even though it had clearly been involved since before the arrest and was leading the investigation. Swartz's legal team, quite reasonably, argued that the evidence from the laptop should be suppressed due to the massive delay in obtaining the necessary warrant. Heymann hit back that it was the Cambridge Police who had the laptop, so the Secret Service had nothing to do with it until it got the warrant. There was a court hearing about all of this, and Heymann again insisted that the Secret Service had no responsibility until after the warrant.
However, right after that hearing, Heymann apparently approached Swartz's lawyers to reveal a key email from the lead Secret Service agent on the case, Michael Pickett, to Heymann himself. The email had been sent on January 7, 2011 in which he noted that he was "prepared to take custody of the laptop anytime, or whenever you feel is appropriate." In other words, the Secret Service clearly had de facto control over the laptop, directly contrasting Heymann's claims. Furthermore, withholding that bit of evidence, which would have raised serious questions about Heymann's claims to the court, until after the hearing just makes the whole thing even more sketchy.
We were surprised to learn of the existence of an email that demonstrated that the Secret Service both had effective control over Mr. Swartz's electronic devices and knew it needed to obtain a search warrant as of January 7, 2011, especially in light of AUSA Heymann's representation that they had neither "seized" nor "possessed" it. The email made clear that the Secret Service had control over these items of evidence and were able to search them whenever AUSA Heymann desired. This evidence contradicted the Government's representation to the Court that federal law enforcement could not be held responsible for the delay between the items' seizure and their search. The email confirmed what we had previously suspected: that AUSA Heymann and Agent Pickett directed and controlled the investigation of Mr. Swartz from the time of Mr. Swartz's arrest on January 6, 2011. The email also confirmed to us for the first time that AUSA Heymann's involvement in the case had commenced very early in the investigation and that Agent Pickett was following AUSA Heymann's orders on the search and seizure issue.Given that, Swartz's legal team questioned if there were more relevant items that had not been turned over when required. A further search by the US Attorney's office apparently found quite a bit.
Meanwhile, on December 21, 2012, AUSA Heymann produced yet another, much larger set of documents relevant to Mr.' Swartz's motion to suppress. This voluminous, disorganized production consisted of hundreds of previously-undisclosed emails, as well as hundreds of other documents, including undisclosed investigative reports, 'photographs, spreadsheets, and screen captures. Many of the newly-disclosed emails and reports further illustrated that the Secret Service was in control of investigating Mr. Swartz, and that Heymann was himself involved in the investigation even before Mr. Swartz was arrested on January 6, 2011.They argue that this was a failure to disclose exculpatory documents, combined with evidence that Heymann appeared to know about but leave out.
Furthermore, the claims of prosecutorial misconduct are bolstered by showing how Heymann and others in the US Attorney's office appear to have abused the plea bargaining process, in that it's not supposed to result in a punishment that is massively different than what would happen via a full trial. Of course, in practice, prosecutors almost always ignore that rule because it gives them a bigger stick when going in to negotiate. Given that it was regular conduct, however, perhaps makes this particular claim a little less certain. Still, it's more evidence of how single-focused the DOJ was on this case.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: aaron swartz, prosecutorial discretion, steve heymann, withholding evidence
Reader Comments
The First Word
“Subscribe: RSS
View by: Time | Thread
Will we hear the sweet sound of silence from the trolls in this article? I swear I'll open an exception and click the pinkish links just to see how they will twist it ;)
But more on topic I was not surprised and didn't doubt a single word from Swartz partner when she released her ire at the Govt. The case against Swartz was so shaky from the beginning that, knowing the US Govt as we do by now, some misdeeds were bound to be confirmed at some point. Much like Megaupload case. Just give it time and enough people pushing and researching for the sordid details and they'll eventually come out.
I've come to the point I always doubt the US Govt now. Even when they seem to be right. (Mind you this is valid for Govts in general but I'm focusing at this article in my comment).
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Wake me up when Mike is willing to have a substantive and direct discussion about the propriety of what Swartz did. I know, it'll never happen. It's easy to claim he did no wrong, but it's much harder to back it up in a debate on the merits. That's why Chicken Mike runs away every time.
[ link to this | view in chronology ]
Re: Re: Re:
Did it work? :game show buzzer: No, no it did not.
[ link to this | view in chronology ]
Re: Re: Re: Re:
These accusations are very serious, and if true, quite alarming. Prosecutors have a duty to disclose and a duty of candor, and the ones I know take those duties very seriously. I'd love to hear the prosecutor's side of this. I know this is Techdirt, so you all think anything that puts the prosecutors in a bad light is true, and anything that puts Swartz in a bad light is false, but I don't operate that way.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Prosecution: We did nothing wrong! Everything is being mischaracterized. Pay no attention to anyone who says otherwise.
That's been pretty much their whole approach so far. It has worked for you, despite any lack of substance.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
so, you're a delusional, abject authoritarian ? ? ?
thought so...
seriously, like the bumper sticker says: if you're not outraged, you're not paying attention...
ANYONE who thinks the justice (sic) dept is NOT totally MORALLY corrupted (at least, possibly fiscally as well), has NO concept of how/why they work...
shit, ALL you have to do is SEE the actual ACTIONS they take to realize they have NOTHING to do with 'justice', and EVERYTHING to do with keeping the rabble in line...
you are a tool, i'm sure your brownshirt will look spiffy ! ! !
art guerrilla
aka ann archy
art guerrilla at windstream dot net
eof
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
It is the basis of the rights' market, I mean plea bargain system.
I ended up doing 19 months in Idaho because the prosecution failed to submit evidence (Franklin County, he's district judge now). They finally let me out scott-free after requiring an agreement to 'file no further' which I foolishly signed to regain my freedom.
This is prevalent enough behavior that it it not likely the exception, although I cannot confidently say that it is the norm either as much as my personal experiences would inlcine me to do so.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
That's an interesting conception of the term "scott-free".
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
So go waste their time on their blog. I'm sure they'd just love to have a substantive and direct discussion with you.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
I can read the letter just the same as you, and neither one of us knows if it's the whole truth. So what? Why won't Mike ever discuss whether what Swartz did is wrong? What's he scared of?
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
1) Do you think what Swartz was wrong?
2) If so, do you think it was ethically wrong for any reasons beyond citizenly duties to honor the law of the land?
3) Do you think it was wrong enough to warrant a felony?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
LOL! What? I've been trying for years to get Mike to discuss the bullshit he publishes. He runs away every time. Total coward. Total fake.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
On the other hand, we've been trying to get you to run away for years, and you keep discussing bullshit.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
Mike discusses things with us all the time. He just doesn't discuss anything with you.
Gaze into a mirror to find the answer to your question, "Why?"
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
Now unless Mike Mansick is personally involved in the case of Aaron Swartz (which as most of us with a brain know...he isn't), that's when we could discuss it...but until then your personal attacks and attempts to derail discussions off topic will fail.
[ link to this | view in chronology ]
Re: Re: Re: Re:
" Game. Set. Match."
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
So you think the mere offer to take control over a piece of property is the same thing as having already taken control over it? That's a stretch.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Well, I think it is a bold faced lie to say you had no control over something after it has been offered to you. Basically following your logic, government can take something without warrant and then just play a massive shell game saying "Oh, we don't really have it, Fred down in storage does"
[ link to this | view in chronology ]
Re: Re:
So if I tell you my car is available for your use so you can stop by any time to pick it up, you then have taken control of my car even before you come over and borrow it? I don't see it.
[ link to this | view in chronology ]
Re: Re: Re:
I usually don't do ad homs, but dang. You are dumb.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
You own the car and you have possession. Swartz owned the laptop but the police had control. They held it until the FBI wanted it, and the FBI basically had control of it.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
It's not "your property" until you take possession.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
If you can come get something at any time you want AND IT'S OWNER CAN NOT USE IT OR RETRIEVE IT, it is effectively your property.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Coward
[ link to this | view in chronology ]
My Asperger's Syndrome Senses are tingling....(never ignore things we notice ;-) )
Has anyone else noticed a pattern in the Presidential Cabinet where the appointed cabinet heads are pawning off their responsibilities and letting the middleman or their assistants take the fall for direct bad decisions they make?
"That resulted in an interesting discussion in the comments, in which a few DOJ defenders suggested that since there were no details, we were probably making this up (as if we don't have better things to do)."
Jesus H. Christ!!! If there were no details (not really any new news there), they probably should have dropped the charges and tried not to get an Alford Plea out of Aaron Swartz.
[ link to this | view in chronology ]
Re: My Asperger's Syndrome Senses are tingling....(never ignore things we notice ;-) )
An Alford Plea, is a plea that says there likely IS enough evidence to convict me, but I plead not guilty, and accept this plea deal. Since there wasn't enough evidence why would you even try for an Alford Plea?
Then there is the fact that many Federal Courts are not likely to accept alternative pleas such as 'No Contest' or 'Alford Pleas'.
[ link to this | view in chronology ]
Re: My Asperger's Syndrome Senses are tingling....(never ignore things we notice ;-) )
This is a pattern among people in positions of power generally.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re: I'm a deeply cynical person.
[ link to this | view in chronology ]
Gosh, forget about Swartz sneaking in and "liberating" data...
Anyway, Mike's "At The Bench" focus on legal wrangling -- and yet again, I concede that ALL Mike reports about it may be true: heck, I'd bet on it -- EVEN IF all true, doesn't actually affect the case against Swartz. I doubt it'd be thrown out on these grounds.
Are you saying Swartz got what he deserved? -- No, technically he escaped justice, and as a person, it may be a tragedy. My advice would have been argue the case to a jury, and I'd bet half a peach that with a spirited explanation he'd have gotten off entirely. My opinion is that he got bad legal advice from a lawyer -- actually, my opinion is there's no other kind: they're all minions of The System, dedicated to taking your own money to help put you into jail, you should never trust any in that medieval guild an inch.
So what's your point here, out_of_the_blue? -- DON'T take actions that offer The System a chance to make an example of you, especially not in this area.
So... You're saying just give in to the copyright maximalists? -- NOPE, I'm saying recognize the parts of copyright that are reasonable, mainly, leave other people's data alone; don't imitate Big Media and steal, instead fight them with Populist principles in the class war that you're enmeshed in whether you like it or not.
[ link to this | view in chronology ]
Re: Gosh, forget about Swartz sneaking in and "liberating" data...
So I agree with you to some extent. You got confused towards the end when you mixed copyright into the thing. You see, copyright was one of the minor charges in this specific case, the real problem was the abuse of the CFAA (or whatever was the acronym). Nobody should simply bow to the system and let things happen. I would be more inclined to agree with you if you said "work with the system to destabilize itself" or something in these lines but that would still be offering the system reasons to go after some activist. And supposing you take measures without revealing your identity. This is yet one more chance the system may use against you when the time comes. You see, damned regardless the approach.
Now, as for the copyright tangent I agree with you that there may be beneficial ways to implement copyright. However such ways don't benefit the established 'rich class' inside the media corporations and they made it so the plebe cannot change it. So yes, generalized civil disobedience may be one way to force change. If you play by the rules you keep feeding the powers that encrusted those laws into the whole system.
As a finishing note I hope you post more reasonable comments like this. It'll be a pleasure to engage you in discussion and even agree with you this way.
[ link to this | view in chronology ]
Re: Re: Gosh, forget about Swartz sneaking in and "liberating" data...
[ link to this | view in chronology ]
Re: Re: Gosh, forget about Swartz sneaking in and "liberating" data...
[ link to this | view in chronology ]
Re: Re: Re: Gosh, forget about Swartz sneaking in and "liberating" data...
[ link to this | view in chronology ]
Re: Re: Re: Re: Gosh, forget about Swartz sneaking in and "liberating" data...
Perhaps the reason it was not is because it has nothing to do with the crimes for which he was charged.
Copyright law was irrelevant to this prosecution, so raising it as an issue is purely speculation and lacking any foundation.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
The fuzz??? Seriously? Have you been watching "Mod Squad" re-runs or something?
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
The only difference is the badge.
[ link to this | view in chronology ]
Honesty form an attorney!
That is honesty from some one who spends years studding how lie, cheat, and scam. Are you kidding?
If you want morality go to a priest where if they are not busy performing sexual exploration you may find some.
But an attorney, a professional scam artist "for get it".
[ link to this | view in chronology ]
Corrupt government
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
But not just prosecutorial misconduct, let's include perjury as well. If you lie to put someone away and are caught you should take their place.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
He who is without sin amoung you...
Let's focus on Heymann and if you want to link to some hard facts of other prosecutor misconduct that's great too but let's be a little more realistic with our comments.
[ link to this | view in chronology ]
Re: He who is without sin amoung you...
[ link to this | view in chronology ]
There should be prosecutions over this, but will there?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
There's a pattern here
->DOJ allegedly withholds evidence in the Aaron Swartz case.
Did it suddenly become okay for the DOJ to start doing something that violates Due Process, specifically the right to know the opposing side's evidence? Would someone grab a copy of the DOJ prosecutor field handbook so we can get to the bottom of this?
As the Zen Master says, "We'll see."
[ link to this | view in chronology ]
Are they willfully ignorant, or is this some play by play guide book tactic to miss a point entirely...on purpose
[ link to this | view in chronology ]
They had to have rules and get training to remind them to stop hiding evidence... what part of this does not scream the DoJ is broken?
[ link to this | view in chronology ]
This sort of thing happens all the time to little people.
It's not government by the people.
It's organized crime and should be treated as such.
[ link to this | view in chronology ]