DOJ Lies To 'FOIA Terrorist' Jason Leopold; Claim They Have No Documents On Aaron Swartz

from the buncha-liars dept

Back in 2013, not long after Aaron Swartz's tragic suicide, reporter Kevin Poulsen (who had also worked with Swartz on what became SecureDrop, the system for whistleblowers to anonymously submit documents to journalists) submitted a Freedom of Information Act with the Department of Homeland Security about what info it had on Swartz. There were some legal fights about it, but eventually DHS was forced to release the documents, which now reside at a site set up by Poulsen called SwartzFiles.com. These documents revealed things like the government's weird infatuation with the Guerrilla Open Access Manifesto, that many believe was written (at least in part) by Swartz (there's at least some dispute over this).

Meanwhile, Jason Leopold, who uses FOIA requests so frequently and so effectively that the DOJ once labeled him a "FOIA Terrorist," submitted a similar request with the Justice Department -- specifically targeting the US Attorney's Office in Massachusetts -- which is the office out of which Swartz's case was prosecuted. Obviously, they have plenty of such documents. In fact, in Poulsen's DHS Swartz files there are emails between DHS and DOJ folks. But, an astounding three years and 11 days after Leopold submitted his FOIA request, the DOJ has told him it has no responsive documents. That's obviously bullshit. There's simply no way that the office that was prosecuting Swartz has no responsive documents on the case.

And, of course, perhaps the worst FOIA requester to give a bogus answer to is Jason Leopold. Not only is he one of the most persistent FOIA filers, he also is absolutely willing to file FOIA lawsuits when the government tries to deny him what he wants. As a recent profile noted, he's filed more FOIA lawsuits by himself than almost all other news organizations combined. And it seems quite likely that the DOJ just convinced him to file another such lawsuit.

Filed Under: aaron swartz, carmen ortiz, doj, foia, jason leopold, us attorney's office

White House Responds To Petition About Aaron Swartz By Saying Absolutely Nothing

from the that's-a-response? dept

Soon after the unfortunate suicide of Aaron Swartz, a lot of anger was directed at Carmen Ortiz, the US Attorney who was the key figure behind the ridiculous prosecution of Swartz for daring to download too many documents (that he had legal access to, as did anyone connecting to MIT's network). Ortiz showed no concern at all that either she or her office had done anything improper in threatening Swartz with over 30 years in jail for downloading (legally) some academic papers. As a result some people set up one of those "We the People" White House petitions, asking the Obama administration to remove Ortiz from her job.

This petition had no chance. Petitions are supposed to be used to get the White House to discuss or commit to policy positions. Specific personnel decisions seem way outside the scope. Besides, as bad a job as we may think Ortiz did in handling the Swartz situation, frankly, it's not the kind of thing the White House will ever come out and say directly. That's just not how it works.

Similarly, while at times the "We the People" petitions have been useful in forcing the White House's hand on things, for the most part, the administration seems to ignore most of them, even if they got the required 100,000 signatures demanding a response.

So I'm at a total loss as to why the White House suddenly decided -- two years later -- to respond to the petition to remove Ortiz from her job, and to basically say... absolutely nothing in response:

Aaron Swartz's death was a tragic, unthinkable loss for his family and friends. Our sympathy continues to go out to those who were closest to him, and to the many others whose lives he touched.

We also reaffirm our belief that a spirit of openness is what makes the Internet such a powerful engine for economic growth, technological innovation, and new ideas. That's why members of the Administration continue to engage with advocates to ensure the Internet remains a free and open platform as technology continues to disrupt industries and connect our communities in ways we can't yet imagine. We will continue this engagement as we tackle new questions on key issues such as citizen participation in democracy, open access to information, privacy, intellectual property, free speech, and security.

As to the specific personnel-related requests raised in your petitions, our response must be limited. Consistent with the terms we laid out when we began We the People, we will not address agency personnel matters in a petition response, because we do not believe this is the appropriate forum in which to do so.

If that's the answer, why bother responding at all? Even the opening statement expressing concern for Swartz's family and friends rings hollow. While I know, for a fact, that some in the White House absolutely do understand what Swartz meant to the internet, this response is incredibly weak. Of course, even though they couldn't do anything or say anything about Ortiz, an announcement like this (two years later) could have been tied to some sort of program on internet openness, or increasing access to public domain works, or any of a number of projects and campaigns that Swartz was close to. There was no real reason to pick up this thread now, but having decided to answer the petition now, the White House certainly could have done something a lot more productive with it.

Filed Under: aaron swartz, carmen ortiz, obama administration, petition, we the people, white house

US Attorneys Reveal Online Bullying To Explain Why People Who Helped Them Prosecute Aaron Swartz Should Remain Anonymous

from the counter-productive dept

We recently wrote about how Aaron Swartz's legal team was arguing with MIT and the DOJ about publicly releasing some of the documents in the case against him. MIT and the DOJ want to keep the names of key people at MIT and JSTOR secret, while Swartz's family says the info should be public. In response, among other things, the US Attorneys' Office has said that, since Swartz's death, they've been bullied and hacked. From the filing:

In my capacity as First Assistant United States Attorney, I have been shown various harassing and potentially threatening email messages directed at United States Attorney Ortiz and the United States Attorney’s Office following Mr. Swartz’s suicide.

Attached at Tab E are copies of the following articles:

a. Swartz case protest at Boston US Attorney’s Home, The Boston Globe, March 12, 2013; and
b. Swartz protesters go to prosecutor’s home, The Boston Globe, March 17, 2013.

In my capacity as First Assistant, I have been shown various harassing and threatening messages directed at AUSA Heymann. One such email I have seen states, among other things:

ROFLMAO just saw you were totally dox’d over the weekend by Anonymous. How does it feel to become an enemy of the state? FYI, you might want to move out of the country and change your name . . .

That same email copies personal information of AUSA Heymann, including his home address and personal telephone number, among other things. AUSA Heymann has also reported to me that his personal information (including his home address, personal telephone number, and the names of family member and friends) were posted online, and that his Facebook page was hacked.

Attached at Tab F is a redacted copy of a postcard that AUSA Heymann has informed me he received at his home.

Attached at Tab G is a copy of a postcard that Professor Philip Heymann has informed me he received.

This is the first postcard they're talking about: The picture in the center is of Philip Heymann, father of Steven Heymann. Steve Heymann led the prosecution of Swartz. His father, Philip is a former deputy attorney general and a professor at Harvard.

Once again, as we've stated numerous times in the past, these kinds of activities, while they may feel like a way to make a statement against those who have done wrong, are incredibly counterproductive and stupid. Rather than making any sort of realistic or helpful point, they just give more ammo to the DOJ to block a full, fair and thorough exploration into what went wrong. Making them into victims is a really pointless move that helps the DOJ continue to cover up the details of what happened by giving them cover.

I recognize that there's tremendous anger towards the US Attorneys' office over this case, and much of that anger is likely justified. But channeling that anger into childish threats doesn't help anyone, least of all Swartz's memory and family. Yes, the prosecution of Swartz was unfair, and I would support a legitimate investigation into what happened and ways to keep the DOJ from such overzealous prosecution in the future (though, I agree with others that this sort of thing is endemic to the DOJ, and wasn't unique to Swartz's situation). But these actions turn the DOJ into victims and give them an excuse to hide behind. These kinds of attacks may make some kids feel better, but they don't help at all.

Filed Under: aaron swartz, anonymous, bullying, carmen ortiz, hacking, steven heymann, us attorneys
Companies: jstor, mit

Aaron Swartz's Partner Accuses DOJ Of Lying, Seizing Evidence Without A Warrant & Withholding Exculpatory Evidence

from the good-prosecutorial-discretion? dept

Yesterday we wrote about Attorney General Eric Holder's ridiculous claims defending the prosecution of Aaron Swartz. We noted two key things that were ridiculous. First, Holder insisted that Swartz was only facing a few months in jail (he implied 5 months, tops) and scolded the media for claiming it was 35 years. As we noted it was the US Attorneys' own press release that trumpeted the 35 years. More importantly, the few months in prison was only if he agreed to plead guilty. If he continued to profess his innocence (something you would do if you believed you were innocent), the US Attorneys claimed they were going to push for seven years. The other ridiculous point that Holder made was that it was "good prosecutorial discretion" to offer just a few months in the plea bargain, because that somehow showed them recognizing the "context" of the crime.

In response, Swartz's girlfriend, Taren Stinebrickner-Kauffman has put out a very strong statement, slamming Holder's claims. Not only does she highlight the threat of seven years in prison, but she goes much further, to allege clear prosecutorial misconduct by the US Attorney's office, including seizing and holding evidence without a warrant, lying to the judge and then withholding exculpatory evidence from Swartz's lawyers. These are three really serious charges that I haven't seen much discussion about previously:

"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.'

What's worse, this isn't just about sentencing. Steve Heymann engaged in serious prosecutorial misconduct on multiple occasions. Public documents show that he instructed the Secret Service to seize and hold evidence without a warrant, violating the Fourth Amendment. He then lied to the judge about that fact in written briefs. And he withheld exculpatory evidence from Aaron's lawyers for over a year, despite both a legal and ethical obligation to turn it over. If this constitutes appropriate behavior from the perspective of the Department of Justice, then we live in a police state.

The Department of Justice is not interested in admitting their errors, even when an out of control US Attorney's office has cost this country one of our best and brightest. The DOJ is only interested in covering their asses."

It's too bad that Holder wasn't quizzed about those specific points as well. The fact that he was able to mischaracterize the actions by the US Attorney's office in how they went after Swartz is really unfortunate.

Filed Under: aaron swartz, carmen ortiz, doj, eric holder, prosecutorial discretion, steve heymann, taren stinebrickner-kauffman

Bad Week For Carmen Ortiz: Admits To Botched Gang Arrest As Congress Kicks Off Swartz Investigation

from the complete-flops dept

Carmen Ortiz is not having a good month. The US Attorney who was in charge of the ridiculous Aaron Swartz prosecution -- and now has over 50,000 people asking the White House to fire her -- now will have to deal with an official investigation by Congress into that particular case. A bipartisan pair of Congressional representatives, Darrell Issa and Elijah Cummings -- who are basically the top dogs from each party on the House Oversight and Government Reform committee -- have officially kicked off their investigation. They're asking these specific questions:

• What factors influenced the decision to prosecute Mr. Swartz for the crimes alleged in the indictment, including the decisions regarding what crimes to charge and the filing of the superseding indictment?
• Was Mr. Swartz's opposition to SOPA or his association with any advocacy groups among the factors considered'?
• What specific plea offers were made to Mr. Swartz, and what factors influenced the decisions by prosecutors regarding plea offers made to Mr. Swartz?
• How did the criminal charges, penalties sought, and plea offers in this case compare to those of other cases that have been prosecuted or considered for prosecution under the Computer Fraud and Abuse Act?
• Did the federal investigation of Mr. Swartz reveal evidence that he had committed other hacking violations?
• What factors influenced the Department's decisions regarding sentencing proposals?
• Why was a superseding indictment necessary?

Combine these with the questions already sent by Senator Cornyn, and the DOJ is going to be busy.

But, of course, that's not all that is weighing on Carmen Ortiz. Last week, we noted, she lost a highly questionable case in which it appears she tried to seize a family-owned motel based on some trumped up charges concerning drug deals, even though there weren't that many drug problems there (less than others in the area) and the owners of the motel had worked with law enforcement to try to crack down on them.

And... that's not all. Today there's news of an even bigger embarrassment as it appears that Ortiz had to go to court to admit that her office arrested the wrong man in a gang takedown a few weeks ago. Basically, her office is coming to the conclusion -- weeks later -- that one of the guys arrested may just look like the guy they wanted.

In the latest setback for Boston’s beleaguered U.S. attorney, red-faced feds admit they may have arrested the wrong man during a massive gang and drug takedown two weeks ago because he looked like someone they wanted, after they were forced to tell a judge there was “sufficient doubt” that he was the suspect.

How many screw-ups do you get to make and keep such a job?

Filed Under: aaron swartz, botched arrest, carmen ortiz, darrell issa, doj, elijah cummings, investigation

Aaron Swartz Unlikely To Face Jail Or Conviction... Until Feds Decided To 'Send A Message'

from the prosecutorial-discretion dept

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.

Filed Under: aaron swartz, carmen ortiz, federal prosecutors, lawsuit, state prosecutors

Retired Federal Judge Criticizes Carmen Ortiz's Handling Of Aaron Swartz Case

from the good-for-her dept

While US Attorney Carmen Ortiz continues to stand by her actions in regards to the Aaron Swartz case (and other cases where she's being accused of being over-aggressive in prosecuting people), more and more criticism is coming to light, including from some influential voices who understand first hand the sorts of things that Ortiz has been engaged in. Former federal judge Nancy Gertner, who some may remember from being the judge in the Joel Tenenbaum trial, has spoken out about Ortiz's actions, suggesting that Ortiz took things too far.

“Just because you can charge someone with a crime, just because a technical crime has been committed, doesn’t mean you should,” Gertner said.

“At the time of the indictment, [Ortiz] said, ‘Stealing is stealing.’ I saw that all the time when I was on the bench,” she said. “This is a classic line. Stealing an apple if you’re hungry is different than Bernie Madoff. It is obviously different.”

She goes on to criticize Ortiz's continued public claims about how Swartz could get 35 years in jail based on the charges she presented. Gertner notes that, thanks to mandatory sentencing guidelines, judges have less power to push back against overzealous prosecutors like Ortiz, and, as a result, it gives those prosecutors much more power to bully people into agreements.

“And in the world of punishment, the prosecutor has enormous power and he has the enormous power to make you plead guilty and give up your rights,” Gertner said.

As she notes, since the prosecutor can choose what charges to file against you, and then just pile them all up until you agree to plead to something, the prosecutor often has way too much power:

“So the prosecutor determines the charges and the punishment,” Gertner explained. “Again, once they start the process, once the indictment is brought, the potential for enormous punishment is there and although a judge has some discretion in sentencing, often what the prosecutor wants is what the person gets.

“When that happens the prosecutor has enormous power and has to exercise that with some degree of fairness and judgment at that end,” she added.

On top of that, she points out that there were clearly alternative ways that Ortiz could have handled the Swartz case, either offering a deal that didn't involve prison time or even a diversion program with a suspended sentence (such that charges would be dropped if Swartz stayed out of trouble for a certain set period of time). Instead, she notes that Ortiz chose the hardline path that was designed to "wreck your life" even though it seems clear that merely drawing attention to the belief that his actions were criminal would have likely stopped further such actions.

Finally, Gertner points out that part of the problem is that US Prosecutors like Ortiz get rewarded for "high profile" takedowns, and thus all of the incentives she had were to turn the Swartz case into something a lot bigger than it really was:

“If the U.S. attorney is going to take credit for every successful prosecution, not matter what the issues were, the U.S. attorney then winds up as ‘Bostonian of the Year’ for these prosecutions, then you know high-profile prosecutions are valued in the office,” Gertner said. “Mr. Swartz was a high-profile prosecution. Whether they are right is another question.”

None of this, of course, is unique to the Swartz prosecution. We've pointed to similar things in the past, and it's unfortunately common today that US Attorneys use their position not to seek justice in the world, but as a political stepping stone to higher office. As such, "high profile" cases where they "put someone away" get them additional attention and acclaim. Being judicious and recognizing when prosecution doesn't make much sense... does not. The incentives are totally screwed up, and that can create calamitous results.

Filed Under: aaron swartz, carmen ortiz, nancy gertner, prosecutorial discretion, sentencing guidelines

Aaron Swartz's Death Leads To Public Attention Towards Prosecutorial Overreach

from the about-time dept

While we're already seeing things like Rep. Zoe Lofgren's attempt to reform the CFAA, and Rep. Darrell Issa's plan to investigate the DOJ, one interesting thing that has come out of the tragedy of Aaron Swartz's suicide is sudden public interest in prosecutorial overreach. Many criminal defense attorneys have been screaming at the top of their lungs that the pressure put on Swartz is nothing new -- it's how the game is played. And they're right (which is, in part, why I've suggested people check out the documentary Better This World which covers a very different type of case, by very clearly lays out similar efforts by prosecutors who want to win at all costs, and use threats and intimidation to force people into a plea bargain they think is unfair, because it's better than the alternative. The movie is heart-wrenching).

Perhaps one good thing coming out of all of this however, is that more and more press outlets are suddenly paying attention to the wider issue of prosecutorial overreaction:

By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. According to the Wall Street Journal, Swartz was offered the choice of pleading guilty and going to jail for six to eight months, or else going to trial and taking his chances. The multiple counts and their absurdly savage sentences are best seen, just as the family said, as instruments of intimidation.

The prosecutor's bottom line, apparently, was that Swartz had to go to jail. In my conception of criminal justice, the prosecutor's role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can't also dispense with judges.

In recent years, as the Wall Street Journal has documented in a disturbing series of articles, Congress has enabled prosecutorial intimidation by criminalizing ever more conduct, passing laws that provide for or require extreme sentences, and reducing the burden of proof (through expanded application of "strict liability", where lack of criminal intent is no defense).

That same article goes on to note: "And if a prosecutor should turn his righteous all-powerful gaze on you, you're done for." That's it, end of story. The likelihood of winning a case after federal prosecutors take you to court is minimal. And that's waking people up to the fact that the criminal justice system is insane:

Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz's death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate points out in his 2009 book, Three Felonies a Day: How the Feds Target the Innocent, federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.

"Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career," writes Silverglate, a friend and occasional collaborator. "Whole families have been devastated, as have myriad relationships and entire companies."

We already covered some of this with Tim Wu's take on the prosecution, but it's still good to see more publications calling for change on this particular issue:

...whatever opinion one has of Swartz's politics, the American criminal justice system, in its relentlessness and inflexibility, it's unduly harsh sentencing guidelines, requires serious reexamination.

Part of that, of course, is getting the DOJ to stop focusing solely on "winning," and get them to start actually look at what is real justice. Instead, it now is clear that the prosecutors on Aaron's case were looking for a "juicy" case so they could get their names in headlines.

Heymann was looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill," Peters said. Heymann, Peters believes, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."

So, now is the time to get beyond just reforming the CFAA or copyright laws or whatnot, but to also look at what can be done to change the situation:

But Swartz's suicide may be the first to generate widespread sorrow and outrage over common prosecutorial tactics that put ordinary as well as extraordinary citizens at risk. The increasingly voluminous federal criminal code, the vagueness of its individual offenses (numbering about 4,500 in 2007), and its harsh mandatory minimum sentences -- combined with failures of Justice Department leadership -- regularly expose law-abiding Americans to prosecution for activities they have no reason to consider illegal.

This kind of prosecutorial overreach impacts everyone in serious ways, generating lots of headlines, but doing little to nothing to actually help stop crime.

Filed Under: aaron swartz, carmen ortiz, overreach, prosecutions, us prosecutors

Carmen Ortiz Refuses To Reflect; Insists Her Office Will Do Everything The Same As Before

from the a-complete-failure dept

Over the weekend, in our post about Aaron Swartz, we highlighted Larry Lessig's quite reasonable anger at US Attorney Carmen Ortiz's failure to even suggest that she and her office might review their actions against Aaron Swartz to see if they were reasonable. He wasn't calling on them to necessarily repudiate their actions -- but to at least admit that they would review what they had done to determine if it was appropriate. Instead, Ortiz's statement took the hard line that what they had done was appropriate, full stop.

And, now, her office is continuing to stick to that hard line. No self-reflection. No review. No admission that it's even worth reviewing. Just a faith-based belief that everything they did was correct and they will continue to treat every case exactly the same going forward.

Ortiz’s spokeswoman, Christina DiIorio-Sterling, said last night the Swartz case won’t affect the office’s handling of other cases. “Absolutely not,” she said. “We thought the case was reasonably handled and we would not have done things differently.

“We’re going to continue doing the work of the office and of following our mission.”

Many others are calling on Ortiz, or her bosses in the Justice Department, to recognize just how much power they have over someone's life, and that this power must be used carefully. The response of Ortiz and her spokespeople seems to show not even the slightest sympathy or recognition that they have the power to destroy lives, and that such power needs to be used judiciously. It strikes me that someone who fails to have humility while in control of such power is someone who is simply not qualified to hold such an office.

Filed Under: aaron swartz, carmen ortiz, doj, prosecution, reflection, us attorneys

Carmen Ortiz Releases Totally Bogus Statement Concerning The Aaron Swartz Prosecution

from the let's-work-through-this,-shall-we? dept

After staying silent or issuing "no comments" for nearly a week, Carmen Ortiz, the US Attorney in charge of the prosecution against Aaron Swartz has finally released a statement about Swartz, his suicide, and her possible role in the suicide. As you might imagine, the statement is highly questionable. First, here's the statement:

January 16, 2013

STATEMENT OF UNITED STATES ATTORNEY CARMEN M. ORTIZ
REGARDING THE DEATH OF AARON SWARTZ

As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.

I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.

As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.

The statement is complete hogwash, frankly. If what she claims is true -- that they recognized "his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases" then they would not have piled on more charges in the indictment in September. The original indictment, which had four charges against Swartz, had a maximum potential jail time of 35 years. And, Ortiz's own press release trumpeted that fact:

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.

And, then in September, nine more charges were added, which brought the total possible time up to 50 years.

If Ortiz truly believed that his conduct did not warrant such "severe punishment" then she would not have trumpeted the 35 years in the first place, nor would she have piled on more charges. That would serve absolutely no purpose whatsoever if her claim here was true.

Furthermore, as Swartz's lawyers have made clear, Ortiz and her assistant, Stephen Heymann were pretty explicit to Swartz's lawyers that if he did not take their plea bargain offer, the next offer would be for more jail time, and if he still chose not to accept the offer, they'd seek at least seven years for Swartz in court. Tossing out that six month claim as if it were proof of some sort of fair dealing on Ortiz's part is flat out insulting to the intelligence of any thinking person, and downright offensive to the memory of Aaron.

How would Ortiz like it if her own child was accused on trumped up charges and threatened with 35 or more years in prison in press releases -- and then told to "settle" for just six months. I doubt she would find that to be "fair."

As Tim Lee explains, the whole "plea bargain" system is a farce, allowing prosecutors to effectively bring forth these massive "possible" punishments to effectively force someone into pleading guilty without ever going to trial. Going to trial is dangerous, because the prosecutors effectively make sure that anyone who does exercise a right to a trial is likely to get much more time in jail:

If Ortiz thought Swartz only deserved to spend 6 months in jail, why did she charge him with crimes carrying a maximum penalty of 50 years? It’s a common way of gaining leverage during plea bargaining. Had Swartz chosen to plead not guilty, the offer of six months in jail would have evaporated. Upon conviction, prosecutors likely would have sought the maximum penalty available under the law. And while the judge would have been unlikely to sentence him to the full 50 years, it’s not hard to imagine him being sentenced to 10 years.

In this hypothetical scenario, those 10 years in prison would, practically speaking, have consisted of six months for his original crime (the sentence Ortiz actually thought he deserved) plus a nine-and-a-half-year prison term for exercising his constitutional right to a trial.

As he further notes, no judge would impose a harsher sentence on someone for exercising other rights -- such as taking the Fifth, hiring a lawyer or confronting an accuser. Yet, if you demand your right to a trial, the US Attorneys have effectively rigged the system so that defendants are punished. And that gives them immense power.

Thanks in part to this kind of coercion, more than 90 percent of defendants waive their right to a jury trial. For the majority of defendants, then, the plea bargaining process is the justice system. As a result, prosecutors wield an immense amount of power with very little accountability.

It’s not surprising that Ortiz doesn’t see anything wrong with this system. Powerful people rarely see their own power as problematic. But the rest of us should be outraged—not just by Ortiz’s conduct, but by a system that treats thousands of defendants less famous than Swartz the same way.

This is not a new problem. A year and a half ago, the NY Times had a feature article highlighting this very problem, which it calls "the trial penalty."

Also, while Ortiz claims that the final sentence "would have been up to the judge" and even suggests that since defense counsel could have recommended just probation, the judge might have been more lenient, she must know that it is quite rare for judges to issue sentences more lenient than what prosecutors put forth from a plea bargain. In fact, judges will often issue harsher sentences than what the prosecutors "agreed" to with the defendant, since the judge is not bound to the terms of the agreement specifically.

Many countries do not allow plea bargaining, because they recognize how it can be used for coercion. Meanwhile, studies have shown that plea bargains quite frequently can lead to innocent people accepting a deal recognizing that it's much better to do that than risk a trial where the punishment would be much, much higher. Yes, more innocent people do stand up against such offers than guilty ones (according to the same study), but a large number of innocent people feel compelled to just take the deal.

Basically, this whole system is wide open to abuse, and it's clear from Ortiz's actions that she, too, was abusing the system in this manner: pushing for super high possible jail time as a huge and scary weapon to try to pressure Swartz into accepting a lower rate -- but also making him a convicted felon. Using the plea offer as some sort of "proof" of reasonableness is really quite incredible and despicable. It's like pointing a gun at someone, telling them that you're planning to shoot them... and then saying that if they agree to confess to something they don't believe, you'll just pinch them instead. And then, when they complain, you say "well, clearly, I just thought the pinch was appropriate." That's clearly a bullshit explanation. Ortiz was better off with "no comment" than trying to pass this off as a reasonable claim.

Filed Under: aaron swartz, carmen ortiz, plea bargains