Eric Holder Makes it Clear DOJ’s Culture — Not the Prosecutor — Is the Problem in Swartz Case

"Discretion" means just beating them up a bit, not breaking their legsDepartment of JusticeI’ve gotten so caught up in Filibuster-mania that I have neglected to make note of Attorney General Eric Holder’s recent questioning by the Senate over the Justice Department’s behavior in the prosecution of Aaron Swartz, the open access advocate who committed suicide rather than face prison for his activism via hacking.

The Department of Justice stands accused of hammering Swartz with a number of federal charges that could have landed him years in prison for breaking into a Massachusetts Institute of Technology closet and arranging to download tons of academic journal reports to make them freely available to the public. U.S. Attorney Carmen Ortiz has been criticized for overcharging Swartz in order to essentially intimidate him into accepting a plea bargain that would land him a few months in federal prison.

While many folks (including some commenters here at Hit and Run) wanted Ortiz removed and lay the blame on her for this prosecutorial overreach, Holder’s testimony makes it pretty clear that Ortiz is not some rogue attorney operating on her own. David Kravets at Wired transcribed some of Holder’s questioning by Sen. John Cornyn (R-Texas):

The Texas lawmaker asked: “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 responded: “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, zero to 6 was consistent with, with that conduct.”

Holder is missing the point. The issue is not whether a few months is an appropriate sentence for Swartz’s crimes but rather whether hanging the possibility of several years over the young man’s head in order to essentially force him to take a plea deal for a relatively minor crime is appropriate. Cornyn went on to explain to Holder the “bullying” component of the Department of Justice’s behavior and the overall scariness for an average citizen to be targeted by the federal government as a criminal, but it didn’t seem to register (you can watch video of their exchange at the Wired link).

Attacking and attempting to remove Ortiz over her decision to go after Swartz (not to mention trying to seize a family’s hotel in Tewksbury, Mass.) won’t fix it. Ortiz is just a symptom, not the disease.

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  • BlogimiDei||

    Due process?

    Doo process.

  • Copernicus||

    You squander a "First" opportunity for that?

  • Larry M. Scruggs||

    my buddy's step-sister makes $70 an hour on the laptop. She has been out of work for 10 months but last month her paycheck was $15515 just working on the laptop for a few hours. Go to this web site and read more... http://www.youtube.com/watch?v=Vb1pdvvoVoQ

  • Eduard van Haalen||

    I bet she *does* make money with laptops, if you know what I mean.

  • ChrisO||

    Cornyn went on to explain to Holder the “bullying” component of the Department of Justice’s behavior and the overall scariness for an average citizen to be targeted by the federal government as a criminal, but it didn’t seem to register

    The Holder bot isn't programmed for that.

  • Sudden||

    Data is more capable of human empathy than Holder. And yet Holder is more capable of human empathy than any of us sociopathological borderline-autistic libertarians.

  • Brandon||

    Who you calling borderline, Kemosabe?

  • Fist of Etiquette||

    I don't think there's any question that this is standard procedure for federal prosecutors throughout the land. To fulfill their political desires, they feel they need to advocate not for justice but for a well-padded resume. The legislature, as usual, shares a great deal of blame for vaguely defined and duplicate laws.

  • Jesus H. Christ||

    It's not confined to Federal prosecutors either, I'm sure.

  • ||

    Read Kerr's article. These problems are largely limited to federal prosecutions. Or read "three felonies a day" for another good read on this subject.

    It's not to say that abuses don't occur in the local court systems, but it's LARGELY a federal problem.

    Also, Kerr's articles make a strong case that there was not overcharging in the Swartz case. Links in 1823 hrs post.

  • Capt Ace Rimmer||

    You've never been to Louisiana. We'v got some pretty hard core multiple offender statutes. Dudes doing life without possibility of parole for stealing TVs on that fourth felony.

  • Capt Ace Rimmer||

    2nd offense possession of marijuana is 5 years. 3rd offense possession can get you 30 years. They don't play down here.

  • ||

    That's messed up. MJ is LEGAL here!

  • Capt Ace Rimmer||

    Dunphy, I know I'm committing the equivalent of libertarian seppuku by complimenting you but you're a pretty good cop.

  • ||

    Thanks man. I try to let my libertarian sensibility inform my police work. For example, the other day we had a guy pull a gun in a situation that was borderline self defense, borderline brandishing. But, it was my case, and I erred on the side of self defense (note also that in my state, the burden is on the state to DISPROVE self defense) and made no arrest.

    Stuff like that.

    But I appreciate it btw.

  • robc||

    Notice that he wont use his libertarian sensibilities inform and absolutely refuse to arrest for a victimless crime.

  • Capt Ace Rimmer||

    Louisiana is a reactionary state. The more freedom ya'll get in Wash or Colo the harder they squeeze our nuts in Louisiana.

  • ChrisO||

    Draconian sentencing laws are heavily to blame, because they make trials so risky for innocent defendants.

    In more rational sentencing regimes, prosecutors risk blowing winnable cases by overcharging, since it can put the defendant in a more sympathetic light if the facts at trial don't match up to the overhyped charges.

  • Paul.||

    The issue is not whether a few months is an appropriate sentence for Swartz’s crimes but rather whether hanging the possibility of several years over the young man’s head in order to essentially force him to take a plea deal for a relatively minor crime is appropriate

    I think this is the best summary of the whole situation I've read thus far.

    If you broke into a 7-11, do they really charge you with Terrorism with a Weapon of Mass Destruction to get you to plea to 30 days in county? Why not just charge you with the B and E, and get you 30 days in county?

  • Hugh Akston||

    I guess it depends on how good you want you resume to look, and how much 7-11 contributed to your bosses election campaign.

  • ||

    Volokh.com has two excellent articles on this.

    It also exposes the SYSTEMIC problem in federal prosecutor tactics. Iow, what they did to Swartz is par for the course. It was hardly unusual. The problem is a systemic one in federal jurisdictions, NOT a problem specific to this case.

    Orin Kerr writes a (imo) great article here outlining the facts and the issues with federal procedure.

    http://www.volokh.com/2013/01/.....z-charges/

    http://www.volokh.com/2013/01/.....iscretion/

    I think an excellent point that Kerr makes (and note Kerr is the one who wrote an amicus brief in the Lori Drew case) is that Swartz wanted to have his cake and eat it too. He was well versed in the law, certainly as well versed as the average attorney, and he willfully engaged in criminal acts he knew could draw jail time. Eventually, he ended up breaking into a closet and direct connecting to JSTOR for pete's sake. And he apparently knew he was being observed doing so (read the first article). He KNEW he risked penal jeopardy, and then when he was offered two terms, one of 4 months, and one of 6 months with judge discretion to lower as far as probation, he committed suicide.

    Whatever one thinks of Swartz and whatever one thinks of the federal justice system (I think it's overly punitive and that prosecutorial tactics go too far), one can only benefit by reading these articles.

  • Mr Whipple||

    Please. They wanted to make an example of Swartz because of his past work against SOPA.

    The Feds are owned by the IP Nazis. That should be clear to anyone.

  • The Late P Brooks||

    Holder is missing the point.

    No shit.

  • Emmerson Biggins||

    He really is a sack of shit.

  • phandaal||

    http://www.kcrg.com/news/local.....d-Project- Destroyed-Wetland-142469725.html?m=y&smobile=y

    Basically, this 65-year-old grandmother's "crime" was building a free campground on her property and discharging dirt and rocks into a supposed wetland. The charges were eventually dropped after a massive public outcry, but they shouldn't have been filed in the first place.

    There is a serious rot in governance when things like this are tolerated. The solution isn't to spray the weeds, it's to tear them up by the root. In other words, refuse to give these agencies and prosecutors the power to do such things in the first place.

  • phandaal||

    Shit. Link here: http://www.kcrg.com/news/local.....&smobile=y

    Or just do a Google search for "Dubuque wetlands campground."

  • Sevo||

    What's more is the woman broke no law. She (supposedly) broke a regulation formulated by an appointed agency, not by an elected body.
    That agency has no accountability to the public.

  • deified||

    Attacking and attempting to remove Ortiz over her decision to go after Swartz[...]won’t fix it. Ortiz is just a symptom, not the disease.

    This is backward.

    Ortiz and her ilk are the purest and most craven form of careerist. The only thing they care about is career advancement. Therefore, the only way to go after these people is to take one and make an example of her pour encourager les autres.

    Our Side™ needs to start collecting scalps.

  • The Late P Brooks||

    If she was merely following orders, she is absolved of any responsibility.

  • ||

    She violated no law or procedure. Only in a twisted no rule of law world would she be in any way, shape or form, culpable.

    The problem is systemic, and the solution will also be systemic.

    Getting all butthurt because Swartz went off the deep end and committed suicide is wonderful, but Ortiz is not responsible for his death

  • Sevo||

    "Getting all butthurt because Swartz went off the deep end and committed suicide is wonderful, but Ortiz is not responsible for his death"

    Word, here. The guy did that to himself.

  • Emmerson Biggins||

    Bull fucking shit she isn't responsible. Nazi prison guard dfense doesn't cut here no matter how many times you try to repeat it.

  • Mr Whipple||

    Neither is Melinda Haag.

  • ||

    One thing is clear. There is only one person responsible for Swartz's suicide - Swartz.

    Read Kerr's article, linked above.

    Swartz engaged in a deliberate escalating pattern of lawbreaking, and was offered a rather decent deal, with a rather indecent threat of prosecution hung over his head if he didn't take same deal. That is lame as fuck, but it is also entirely legal, and entirely within the prosecutor's discretion. It's a systemic problem, that deserves a systemic solution, but is hardly Ortiz' fault. Amazing the way alleged libertarians lose all credibility vis a vis individual personal responsibility when it's a compelling metanarrative and an EVIL PROSECUTOR.

    With the kind of crap Swartz engaged in, he should have known he was risking jail time.

  • np||

    It is a BOTH a systemic problem and a personal problem with the prosecutor. Prosecutorial discretion also means Ortiz did NOT have to bring in the charges she did. Furthermore, what she offered for a plea was still bad. He was willing to pay a fine, but even ~6 months jail is too much, especially when the victim, JSTOR themselves explicitly asked not to pursue charges!

    (Again a reminder that justice and rule of positive law is not about crimes against other persons or property, but crimes against the state)

    In any case, I have no hope that the system will improve at all. We are already beyond 3 felonies a day. Even if one small isolated improvement is achieved, that goodness is made up by the forever increasing badness in other areas

  • ||

    I disagree that 6 months is too long. Refer to Orin Kerr's article that I linked to, for an explanation why.

  • Mr Whipple||

    Because of what he "might have done". And because they wanted to provide a deterrent to possible future perpetrators. JSTOR didn't even want the case pursued and MIT was kinda up in the air. Of course, MIT frowns on trespassing so that's really all they should have prosecuted him on. That was the only "harm" in this case.

    The government and the IP Nazis were butthurt because SOPA didn't pass and they needed someone to take it out on. It is pure vindictive behavior on the part of the prosecution.

  • SumpTump||

    That Holder dude is clearly corrupt as the day is long lol.

    www.PrivateWeb.da.bz

  • n00b||

    It absolutely is the culture. This is DOJ handles each and every case. Overcharge, threaten more charges if the defense act as if they are even considering going to trial...file a superseding indictment to add more charges, as was done here, when the prosecution's first plea offer is not accepted.

    Yes, the first offer to Swartz was a jail sentence of a few months. But, once the defense turned that down and started talking about going to trial, the charges multiplied from 4 felonies to 13 and the defense was informed that if Swartz was found guilty AT TRIAL, they planned to recommend a sentence of 7 years.

    So, you see, the benign little 4 to 6 month sentence was only on the table if Swartz copped to four felonies, agreed not only to the jail time but to supervised release afterward, and probably would have had to refrain from using a computer for a period of time, if not forever. The felons in the federal prison system who go in on computer crimes can't even use the heavily restricted inmate email system (there is no web access, it is just an electronic message system to communicate with loved ones).

    So, yeah, whether or not it is anyone's "fault" Swartz committed suicide, that really isn't relevant to any discussion of whether or not Federal prosecutors bully defendants. They bully most if not ALL defendants in the same manner. Most don't kill themselves over it. That doesn't mean their behavior doesn't deserve further scrutiny.

  • n00b||

    Read about what happens to "Drug War" defendants. This is EXACTLY how they are (over)charged, then bullied into snitching/pleading guilty. Mandatory minimums also come in to play, although prosecutors again have "discretion" to charge this and not that, to avoid MM sentences.

    I've heard of cases where people went to trial, lost and then were charged with obstructing justice for not pleading guilty and admitting their crimes.

    Federal sentencing protocol also awards points for "accepting responsibility" a/k/a pleading guilty and forgoing a trial. So if you were really innocent of what you are accused of and wanted to exercise your right to a trial, you'd be penalized for it.

    So yea, it is the culture and Ortiz and Heymann are not unique in the least.

  • Whahappan?||

    Exactly. Our legal system, at all levels, is a vile cesspool of evil and corruption. Ortiz isn't the real problem, the system is designed to promote misery and death, and to make the world a worse place. Shame on anyone who participates in it.

  • Mr Whipple||

    I thought I remember reading in the Greenwald piece that the prosecutor wasn't offering a plea deal.

    I remember being in Superior Court and having a public defender pretender tell me that I could either take, which was 270 days, the deal or go to trial, be found guilty, and get the max which was 5 years. I hired a real attorney and had the charge merged with a municipal charge and paid a fine and no felony conviction.

  • DenverJay||

    I have actually been the target of a Federal Prosecutor. My impression throughout the entire ordeal was that the prosecutor could care less if I was guilty or innocent. The goal was to win, whether it totally fucked up an innocent person's life or not was not part of the equation. I won my case, in my opinion, but the prosecutor won by their definition: I plead guilty to a low level nonsense charge. What's telling is the condition of the deal where I agreed to not publicly discuss the case. Meaning that the prosecution knew they were in the wrong, but would let me off the hook as long as I did not publicly share their rapacious nature. Fuck federal prosecutors.

  • DenverJay||

    To give a little more detail: the prosecutor KNEW that I had no criminal intent, and did not care, because they figured that they had enough evidence to force me to take a deal. I called a few lawyers, and there are only so many lawyers per major metropolitan area that specialize in federal law. The first 3 that I called said that they could not help me, because they already had clients in the case, and I might be a convenient fall guy, so conflict of interest and all that.

  • DenverJay||

    Finally found a lawyer not already involved with the case; he told me that for x thousands of dollars, he could get me a plea bargain. I told him that I had already been offered a plea, could roll over all by myself. Then proceeded to defend myself, in Federal court, against the Securities and Exchange Commission. Believe me, to the prosecutor it is a game, a matter of getting "wins" in order to advance their career; it had absolutely NOTHING to do with justice.

  • n00b||

    Agree with Denver Jay completely. It is all about careerism, grandstanding and "Making An Example".

    Another "innovation" of the Federal system is the "deal" where you must sign away any right to appeal any part of the conviction as part of the plea deal.

    Completely contra-Constitutional. All about negating any rights the accused individual has.

  • ||

    Why Eric Holder protected big bank Criminals?

    Attorney General Eric Holder's admission that some banks are too big to prosecute, shocked whole nation, and caused unanimous criticism nationwide, including Republican and Democratic Senators.

    Why Eric Holder is concerned that the size of some of these institutions is so large that it will be difficult to prosecute? He says that it will have a negative impact on the national economy, perhaps even the world economy.

    That is opposite! Big Banks’ financial fraud caused the largest recession in our history, as well as created the Global Financial Crisis. The Attorney General Eric Holder’s passivity allows continued Big Banks’ Criminal Behaviors to go unstemmed. This will result in an economic disaster of catastrophic proportions. Only quick and aggressive actions to punish and stop big bank’s criminal practices can protect our economy from further financials crisis.

    What is Eric Holder’s motivation and benefits to not prosecute those big banks? It sounds laudable but in fact is it?

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