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Crime Your Rights Online

After Aaron Swartz's Death, the Focus Now Falls On the Prosecutors 430

Marcion writes "Journalists and commentators are now questioning the role of Massachusetts prosecutors Carmen Ortiz and Stephen Heymann in the suicide of Aaron Swartz and whether they levied disproportionate charges in order to boost their own political profiles, despite being warned he was a suicide risk. Meanwhile White House petitions to remove Ortiz and Heymann have already received tens of thousands of signatures. Should these prosecutors be investigated for their actions regarding Swartz?"
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After Aaron Swartz's Death, the Focus Now Falls On the Prosecutors

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  • by stox ( 131684 ) on Wednesday January 16, 2013 @09:39PM (#42611971) Homepage

    Our Federal legal system has gottent out of control. The laws have become too complex and convoluted for a layman to understand and the penalties have become way too large. There is a reason that less than 1 in 40 Federal prosecutions even make it to a court. The prosecutors make it almost impossible not to take a plea deal.

    http://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-bargains.html?pagewanted=all&_r=0 [nytimes.com]

    I really can't fault Carmen Ortiz and Stephen Heymann, their behavior is what the current system demands.

  • by Freddybear ( 1805256 ) on Wednesday January 16, 2013 @09:46PM (#42612063)

    US Federal prosecutors have a vast array of methods they can employ to make it difficult for a defendant to exercise his rights. They can freeze assets, making it nearly impossible to hire proper lawyers to present a case. They can "throw the book" at the defendant, listing dozens or hundreds of individual charges which each must be rebutted. They can do massive "document dumps" in the millions of pages to make it extremely difficult for the defendant's legal team to analyze them all. They can use their position to intimidate the defendant's insurers and/or corporations to compel them to withhold legal assistance, as was done in several high-profile white-collar prosecutions. It takes a great deal of money to mount an effective defense against prosecutors with nearly unlimited budgets, as Federal prosecutors are.

    And then of course prosecutors have qualified immunity, which means that it is very difficult to make any kind of charges stick against them, no matter how egregious their behavior. We also see this with police officers in the infamous wrong-address SWAT raids.

  • by Anonymous Coward on Wednesday January 16, 2013 @09:56PM (#42612121)

    GIven that the threshhold for new petitions is set at 100,000 signatures, what do you think will happen if these petitions fall short. Ortiz is currently only 38,000 and Heymann only 6,000.

    People will make political hay out of this unless these petitions exceed 100,000 signatures. Once the number of signatures goes beyond 100,000, the Whitehouse is forced to make a more serious response, and Ortiz cannot dismiss this as a "few malcontents". Tell your friends to register to vote on whitehouse.gov and sign the petitions. It is time to STOP the slippery slope of American government towards 1930's style practices in Germany and the Soviet Union. Don't believe it is getting that bad? Then read up on what was happening in Germany and the Soviet Union prior to the outbreak of war. People who do not learn and understand history end up recreating the same events that happened previously.

    P.S. the federal vendetta against Aaron Swartz was all political. He was seen as a supporter of political movements that they would love to outlaw, and perhaps soon will outlaw, if the people do not make their voices heard. In the Internet era, petitions on whitehouse gov are the new way to make your voice heard, but the old ways (talk to your senate rep and congressional rep) are still good too.

  • by Anonymous Coward on Wednesday January 16, 2013 @09:58PM (#42612145)

    the 6 months included pleading guilty to 13 felonies! who in their right mind would accept that.

  • by DeadCatX2 ( 950953 ) on Wednesday January 16, 2013 @10:44PM (#42612565) Journal

    I believe I've read elsewhere that he would have copped to a misdemeanor, but not a felony. I also read that Heyman refused to offer any plea that didn't include guilty on all felony counts.

    But did you really just compare Aaron Swartz downloading material that you admit can be obtained for free pretty easily to Hans Reiser murdering his wife? Come on, Swartz didn't kill or injure anyone, and JSTOR wasn't asking for him to be prosecuted.

    The only reason a six month plea bargain even appears reasonable is when it is juxtaposed to decades in prison. George Hotz did far more damage to Sony - they did try to sue him, unlike JSTOR - and Hotz did not have to plead guilty to anything for his deal, let alone labeled a felon and thrown in prison. It's a more reasonable analogy than Reiser, but Hotz is still very different.

    And you also need to consider the problems associated with being a felon. Should Swartz have given up his right to defend himself with firearms for IP and MAC spoofing? The right to vote, in some states forever? Who would hire a man convicted of a dozen computer felonies?

    There is no doubt in my mind that the prosecution was intentionally trying to make him plead out by massively trumping up charges. It was originally four felonies, later nine more were added. Again, JSTOR wasn't even asking for a lawsuit, and I haven't heard that MIT wanted to sue him either, so why were the prosecutors so eager to pin so many felonies on him?

    Interestingly, Ortiz' office let some health care companies get away with doing some nasty things...and nobody had to plead guilty to anything [blogspot.com], just some fines and settlements. Prescribing drugs only approved for adults to teens, putting the wrong drugs in the bottle, kickbacks for implanting medical devices unnecessarily...things that can actually injure someone...and not a single guilty plea? I would think what they did is far, far worse than what Swartz did. Using the technique of "trump up felony charges to force them to cop a plea" on a known suicide risk over a victimless crime is reckless, negligent, and unprofessional.

  • by DeadCatX2 ( 950953 ) on Wednesday January 16, 2013 @11:06PM (#42612731) Journal

    You're wrong, a prosecutor's job is to prosecute to the fullest extent of the law.

    Really? So was St. Jude's [justice.gov] prosecuted to the fullest extent of the law?

    “Medical device and pharmaceutical companies can use post-market studies legitimately to obtain information about how their products work in the field, but they cannot use those studies, and the honoraria associated with them, to induce physicians to select their products. Cardiologists and electrophysiologists should make their decisions on which pacemaker or defibrillator to implant in a patient based on their independent medical judgment, not based on how much the manufacturer is paying them to implant the device,” said Carmen Ortiz, U.S. Attorney for the District of Massachusetts.

    Was anyone found guilty of anything? "St. Jude officials said they weren’t admitting liability" [bloomberg.com]

    How about GlaxoSmithKline [bloomberg.com]?

    “We will not tolerate corporate attempts to profit at the expense of the ill and needy in our society -- or those who cut corners that result in potentially dangerous consequences to consumers,” Carmen M. Ortiz, the U.S. Attorney in Boston, said at yesterday’s news conference.

    But hey, at least someone was found guilty this time. His name was SB Pharmco Puerto Rico Inc. I don't think he had to serve any time in prison, though.

    Or Forest Laboratories [nytimes.com]?

    “Forest Pharmaceuticals deliberately chose to pursue corporate profits over its obligations to the F.D.A. and the American public,” Carmen Ortiz, the United States attorney for the District of Massachusetts, said in a statement Wednesday.

    Someone was found guilty this time, too. His name was Forest Laboratories. No time served in prison, although there was one felony count - lying to FDA officials.

    You know, if I squint really hard, I think I can see the impression left by the book that Ortiz threw at Mr. Forest Laboratories and Mr. SB Pharmco Puerto Rico Inc.

  • by symbolset ( 646467 ) * on Wednesday January 16, 2013 @11:12PM (#42612775) Journal

    I've read that he was offered a six month sentence in a plea bargain. Rather than take that offer (which would have given him maybe four to five months in a minimum security facility

    Here [itemlive.com] is a case that expresses the duality of the situation: the judge went far above the prosecutors' recommendations. So. Once you plead guilty to 17 felonies the prosecutor's promise is no guarantee - but there will of course be no appeal. And the sentence in that case, 25 years, was for a myriad of offenses: robbery, attempted murder, kidnapping and so on was less that Ortiz prosecutor proposed for Aaron if he was put to the work of actually trying the case.

    Six months offer for 17 felonies would just stoke the fires of outrage. 12 days each? So there was not ever an actual federal case in the lot? This, if true, would be an admission that they were oppressing him without due cause. Of course, there would be no record of it anyway and if were weren't actually involved in the case - say, the US Attorney's husband [boston.com], we would have no way to know. Him I don't believe.

    Not that it matters at all. As another one of Mrs. Ortiz's victims discovered [dailymail.co.uk], once they have you in the system they never let you go.

    You apologists for this horrifically broken system need to get a grip. This is outrageous.

  • by tukang ( 1209392 ) on Thursday January 17, 2013 @12:53AM (#42613451)
    http://www.nobomagazine.com/2013/01/16/us-attorney-carmen-ortiz-issues-statement-regarding-death-of-aaron-swartz/#comment-22826 [nobomagazine.com]

    “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.”

  • by Zimluura ( 2543412 ) on Thursday January 17, 2013 @02:50AM (#42614107)

    I just saw it here:
    http://en.wikipedia.org/wiki/Aaron_Swartz [wikipedia.org] ...Prosecution of the case continued, with charges of wire fraud and computer fraud, carrying a potential prison term of up to 35 years and a fine of up to $1 million.[50][51] One of Swartz's lawyers revealed prosecutors told him two days before Swartz’s death that "Swartz would have to spend six months in prison and plead guilty to [all] 13 charges if he wanted to avoid going to trial."[52] After Swartz's death, his attorney Marty Weinberg told press that he "nearly negotiated a plea bargain in which Swartz would not serve any time", but that bargain failed because "JSTOR signed off on it, but MIT would not."[53]

    Here are the links 50 and 51:
    http://crln.acrl.org/content/72/9/534.full [acrl.org]
    http://www.techdirt.com/articles/20120917/17393320412/us-government-ups-felony-count-jstoraaron-swartz-case-four-to-thirteen.shtml [techdirt.com]

    True, he might not have gotten the full 35. I would even feel fine placing a $20 bet that he would get a shorter sentence. For him the stakes were much higher. To me the threat of such a sentence seems like a form of psychological warfare.

  • by anagama ( 611277 ) <obamaisaneocon@nothingchanged.org> on Thursday January 17, 2013 @04:01AM (#42614369) Homepage

    They may have offered six months, but that doesn't mean he would have only spent six months in jail because the judge can ignore the Prosecutor's agreement and give 5 years per felony. They wanted him to plead guilty to 13 felonies.

    Some have blithely said Aaron should just have taken a deal. This is callous. There was great practical risk to Aaron from pleading to any felony. Felons have trouble getting jobs, aren't allowed to vote (though that right may be restored) and cannot own firearms (though Aaron wasn't the type for that, anyway). More particularly, the court is not constrained to sentence as the government suggests. Rather, the probation department drafts an advisory sentencing report recommending a sentence based on the guidelines. The judge tends to rely heavily on that "neutral" report in sentencing. If Aaron pleaded to a misdemeanor, his potential sentence would be capped at one year, regardless of his guidelines calculation. However, if he plead guilty to a felony, he could have been sentenced to as many as 5 years, despite the government's agreement not to argue for more. Each additional conviction would increase the cap by 5 years, though the guidelines calculation would remain the same. No wonder he didn't want to plead to 13 felonies. Also, Aaron would have had to swear under oath that he committed a crime, something he did not actually believe.

    http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz-part-2 [stanford.edu]

  • by Joce640k ( 829181 ) on Thursday January 17, 2013 @08:54AM (#42615433) Homepage

    In jail the boredom is broken periodically by suffering.


    The USA prison system glorifies prison rape, especially for young geeky types. 35 years as somebody's bitch while the guards joke about your 'suffering' isn't worth 20 years of freedom as an old man. Let's face it, he's not going to have a fancy retirement plan. He's looking at a miserable existence when he gets out.

    Some people's stay in prison isn't much different from their normal life (gang-bangers). It may even be fun - you get your own prison bitch to help relieve the boredom.

    Other people have a house, friends, outside interests, hobbies that are taken away (no Internet access, no gadgets, no Arduino+LEDs to play with ... or whatever) and they end up as the gang-banger's bitch. These people lose everything if they get locked up. It's a thousand times more punishment than the gang-banger receives. This the real injustice of the system, and it's why he chose not to go there.

  • Re:Of course not (Score:3, Informative)

    by Hatta ( 162192 ) on Thursday January 17, 2013 @09:59AM (#42615831) Journal

    Charging people with felonies when the victim said "no dude, it's cool, no harm no foul" shows a stunning lack of discretion.

    You forget. This is the USA, the land of the free. Where people go to prison for years for crimes that have no victim at all.

e-credibility: the non-guaranteeable likelihood that the electronic data you're seeing is genuine rather than somebody's made-up crap. - Karl Lehenbauer