Virginia Prosecutor 'Reform' Efforts Include Nailing Sexting Teens With Child Porn Charges And Screwing Defense Lawyers

from the you-misspelled-'reactionary' dept

Virginia has a mixed history when it comes to handling teens and sexting. For the most part, these cases have been handled with maximum vindictiveness, resulting in teens being charged with child porn production and possession. In rare cases, prosecutors have exercised more discretion, allowing these experiences to be educational rather than punitive. But default mode is still to use the law like a weapon, rather than a tool, as if justice were somehow achieved by ruining teens' lives forever for some stupid indiscretions.

A parent's firsthand experience with this has resulted in him calling out Theo Stamos, Arlington County Commonwealth's Attorney, for her attempt to portray herself as a reformer in her run for reelection. Jeff Edmeades' son was railroaded by Stamos for possessing intimate photos of a teen sent to him by fellow students. Exercising her vaunted discretion, Stamos decided to force his son into a plea bargain by hitting him with the harshest charges she could.

As she does in adult cases it seems, she essentially forced a plea deal by threatening to charge him with the maximum possible charges – one felony for possession of child pornography per image. That took defending him in court off the table

The resulting plea agreement was far from ideal. His son was sentenced to supervised probation and does not have the option to have his record expunged after he's done his time. Edmeades' letter to the editor points out it's actions like these that undermine Stamos' claims that she is fixing a broken justice system from the inside.

In many places, these issues are left to the parents and/or schools to resolve. Notwithstanding this recommendation, Stamos has, on multiple occasions, chosen to prosecute these cases – not because she had to, but rather because she chose to.

Once we were in the juvenile-justice system, which is in theory oriented towards education and rehabilitation rather than punishment, we found that Stamos was very comfortable using the full power of the legal system and the ambiguity around the law in this case to pressure us into accepting a plea deal.

If this is how Ms. Stamos treats children, is it any wonder that she uses the legal system as a blunt-force instrument of punishment with adults? She can say whatever she wants about how her goal is to improve communities and be fair, but her actions speak louder than her words.

It's not just the opinion of a parent who saw his son treated like a child pornographer for possessing photos of someone roughly his own age. It's also the state's defense lawyers, who have witnessed Stamos interpret "discretion" the same way she did in Edmeades' case: maximum charges brought to ensure a steady flow of plea deals. Their letter says Stamos' tactics make a mockery of a process that is supposed to recognize defendants' right to a fair trial.

We are concerned that nearly 98% of felony convictions in Arlington are the result of the defendant pleading guilty, exceeding the rate in all local jurisdictions (Alexandria: 91%; Fairfax/Loudoun: 93%) and even in the federal courts (97%). We are concerned that the low incidence of trials in Arlington is mainly due to overcharging and the fear of harsh consequences if a defendant does not accept a plea bargain.

We are concerned that Arlington convicts defendants of felonies at more than twice the rate of neighboring jurisdictions, despite its very low crime rate. We are worried that this reflects a culture of overcriminalization.

That's only one of the ways Stamos puts her finger on the scales of justice. The letter also notes she's hampering defense efforts by making it as difficult as possible to obtain documents via discovery.

We are concerned that the Arlington County Commonwealth’s Attorney’s discovery policy, which prohibits the use of technology to obtain copies of police reports and other documents, places unique and arbitrary restrictions on the discovery process, making it needlessly difficult for defense attorneys to be prepared for trial. We believe that real open file discovery would make the process more fair for defendants and make the criminal process much more reliable and efficient.

Currently, defense lawyers must head to the court during courtroom hours and manually copy files handed over during discovery. Stamos claims this process protects the privacy of crime victims, but it's difficult to believe details about crime victims are somehow more protected by a process that pretends it's not actually 2019.

Theo Stamos is the only one who believes these are the practices of a criminal justice system reformer. It starts with screwing teens who made mistakes and ends with screwing their lawyers when they try to mount a defense against these trumped-up charges.

Filed Under: arlington county, plea bargain, prosecutorial discretion, sexting, theo stamos, virginia

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.

Filed Under: aaron swartz, prosecutorial discretion, steve heymann, withholding evidence

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

Holder: DOJ Used Discretion In Bullying Swartz, Press Lacked Discretion In Quoting Facts

from the convenient dept

Fresh off of explaining why the President can use drones to kill Americans on American soil, Attorney General Eric Holder apparently feels emboldened to say just about anything to justify ridiculous government actions. The latest? Defending the Aaron Swartz prosecution at a Congressional hearing called by Sen. John Cornyn, who has already expressed his concerns over the prosecution. As you might expect, Holder stuck with the official line that what the DOJ did in the Swartz case was perfectly reasonable. The key to his argument, as we've been hearing from others who defended the government's actions: the DOJ never intended to put Swartz in jail for 35 years. Also, apparently it was unfair of the media to use that 35 year number.

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.

These claims are not only misleading, but also total and complete bullshit. First off, if you never intended for him to spend more than 6 months in jail, and you're upset at the "media" for using the 35 year number... why is it that the DOJ's own press release on the arrest played up the 35 years:

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.

I'm sorry, but you don't get to push that number around in your own damn press release and then whine and complain about how "unfair" it is that the media uses the number you gave them.

Separately, concerning the insistence that they never wanted him to spend more than 6 months in jail, they leave out the fact that this was only if Swartz agreed to plead guilty to multiple felonies. According to various reports, the DOJ, via Assistant US Attorney Steve Heymann made it clear that if Swartz did not agree to the plea, then he would seek somewhere around seven years in jail.

Cornyn goes on to ask about why the DOJ pursued the case even after the supposed "victim," JSTOR said it didn't want to have anything to do with the case. Cornyn specifically asks if it makes sense to threaten someone with 35 years in prison when the victim doesn't even seem to feel harmed by the situation. Holder than tries to spin this around and, incredibly, argue that the fact that they didn't pursue the full 35 years is an example of good prosecutorial discretion. Seriously.

Cornyn: The subscription service didn't support the prosecution. Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a 3 or 4 month prison sentence?

Holder: Well I think that's a good use of prosecutorial discretion. To look at the conduct, regardless of what the statutory maximums were, and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, 0 to 6 was consistent with that conduct.

In other words, the only thing Holder is really saying here is that there was perfectly reasonable prosecutorial discretion if and only if Swartz agreed to a plea bargain in which he plead guilty to all felony charges against him. Basically, it's a "good use of prosecutorial discretion" to bully someone into pleading guilty to a crime they don't believe they've committed, and as long as they accept that, go to jail, and be okay with being labelled a felon for life, then there's no problem.

How do we let these people into positions of power?

Filed Under: aaron swartz, bullying, doj, eric holder, facts, john cornyn, press release, prosecution, prosecutorial discretion

Another Case Of Prosecutorial Bullying Against A 'Hacker'

from the maybe-it's-time-to-rethink-this-approach? dept

As the tragic death of Aaron Swartz resides fresh in our memories, there has been a renewed interest by the public in the way prosecutors use the threat of more jail time as a carrot (edit: should have said "stick"; thanks comments section!) to secure plea bargains. The way the system is set up allows for an arena in which justice is no longer the objective. Instead, an injustice can be used in some kind of strange "ends justify the means" game that would make Lady Justice weep openly. With the odds firmly stacked against anyone that falls in the crosshairs of a federal prosecutor, this is a horrifyingly unjust method for achieving justice, and it appears to be a method favored for use against so-called hackers and hacktivists.

Now, lest you think that the Swartz case was an isolated event, or in case you thought perhaps there would be some sort of ripple effect as a result of it, you should note that prosecutors in the Barrett Brown case appear to be pursuing similar tactics. For those of you not familiar with Brown, he is the self-proclaimed spokesperson for Anonymous recently arrested for allegedly threatening an FBI agent.

Brown was arrested and taken into custody in September after allegedly threatening an FBI agent. In December 2012, he was indicted by a federal grand jury for trafficking “stolen authentication features,” as well as "access device fraud" and “aggravated identity theft.”

On Wednesday, Brown was hit with one count of “concealment of evidence,” and one count of “corrupting concealing evidence.”

And what did Brown do to "conceal evidence"? Apparently he "hid" his laptop with his mother's dishes. Apparently putting a laptop where the Feds don't obviously look is now "concealing evidence."

I won't sit here and compare Brown and Swartz in terms of character. Not because I know or don't know enough about either of them to do so, but rather because that would miss the point entirely. I'll leave it to others to erect the false justification of character assassination. Instead, I'd rather focus on how prosecutors appeared to think that the original charges, which could lead to 90 years of imprisonment for Brown, were apparently not enough and decided to lump this last charge on top of the others. Brown's former attorney, Jay Leiderman, appears to be similarly flabbergasted.

“I would not have seen a third indictment coming,” Leiderman told Ars. “You would think the 90 years of prison exposure that they had on him was enough. Are we at a point in society where we think that 90 years is no longer enough?”

Leiderman speculated that the new indictment was a legal pressure tactic against Brown.

As Ledierman goes on to say, at some point we departed the realm of prosecuting hacktivists and instead entered the realm of persecuting them. If there are crimes committed, let Brown or whoever else stand trial. If the law is behind the times, or written in a way that is ridiculous (as in the Swartz case), we can change the law. There's nothing wrong with the argument that that's a responsibility that falls on the public via whom we elect to government. All that said, for hacktivist crimes, or even those that Brown is accused of, to result in 90 years of jail time -- and for that to not be good enough for prosecutors -- is an absolute joke. Lumping on yet another, more minor, charge to pressure the accused is a downright travesty.

 

Filed Under: aaron swartz, barrett brown, concealing evidence, prosecutorial discretion

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