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.

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Comments on “Retired Federal Judge Criticizes Carmen Ortiz's Handling Of Aaron Swartz Case”

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30 Comments
Anonymous Coward says:

Re: Re:

Give it up already. There is a very large, (and growing) consensus of people with common sense that can see what is happened here and the injustice in it all. Just like SOPA the people are speaking up to effect change.

My question now is who is your scapegoat this time that you will try to blame, Google again or someone else this time?

Anonymous Coward says:

Re: Re: Re:

Eh, AJ won’t blame anyone. He’ll just go on about pirates and freetards and Mike Masnick the milker and person who pushes his agendas.

When he isn’t going batshit insane and posting “WHY WON’T YOU DEBATE ME?!?! RAWR!!!!” in article after article that is.

See, an interesting thing to note is his constant harping. If it’s not the “milking” bit then it’s the “using his death to further your own agenda” bit and if it’s not that it’s “admit he committed a crime!” Which is hilariously considering how many more legally experienced people have already stated no crime was committed, unless you really want to count trespassing. All more relevant and experienced in such legal matters than a lawyer to be. I will say this, looks like DA Ortiz has herself a lackey in the making in the form of AJ.

Doesn’t back down no matter how wrong he is. Facts and opinions be damned!

Anonymous Coward says:

Re: Re: Re: Re:

As I said before in a comment on a previous article. I actually enjoyed the debate with him. Just gotta break him of the bashing trollish behavior thing. I know it’s probably a futile effort but some how we managed to get bob to actually make a handful of decent comments instead of his previously whining dribble so may be there is hope here too. 🙂

Anonymous Coward says:

Re: Re:

Swartz did do something wrong, he committed suicide. Now what’s happened is concerned people are asking “Why?”. The answer pretty overwhelmingly seems to be because of the stress from his case and how it was handled.

Don’t forget he was getting the book slammed on him for accessing publically funded research documents on an open network. Sure he had to change his MAC address, was in an unlocked closet, etc, etc, etc. But come on, that’s basic IT stuff and not spoofing, hacking, or a cybercrime to do. What he did hurt no one. Not even financially. You can’t with a serious and straight face even mention the initial 35 years of jailtime (it was upped later remember!) was justified for what he did.

Then there’s the 6 month’s defense. The prosecution decided he was guilty and needed to go to jail (without a “fair trail”!). They didn’t really care how short the term was (6 months is 1/70th of 35 years), they just wanted “justice” to be done.

Now tell me, with a straight face which person screwed up. Then I’ll get back to you on how much trouble Swartz should have been in….

Anonymous Coward says:

Re: Re: Re:

The answer pretty overwhelmingly seems to be because of the stress from his case and how it was handled.

The cause was his depression. Which seems to be ignored on Techdirt as it detracts from the agreed-upon narrative. He wrote of suicide in the past, at another time a colleague was so alarmed he contacted authorities over him being suicidal.

Anonymous Coward says:

Re: Re: Re: Re:

I would be quite reluctant to attribute what Mr. Swartz did to depression, his legal problems, or anything else for that matter. All people can do is conjecture. Maybe one or more were the tipping point for him, but then again maybe other considerations were involved. The most that can honestly be said is that he engaged in a tragic act, left no note (reports indicate none was found), and we are all left to ponder why he did so.

It is easy to point fingers and lash out after the fact, but in truth no one will ever know for sure.

DCX2 says:

Re: Re:

The things that Aaron Swartz did wrong should have been punishable under civil law. There was no need to charge him under criminal law. Big Government – the hammer looking for a nail – had no right to step into the entirely private matters between Aaron Swartz and JSTOR/MIT, except to arbitrate a fair remedy under civil law.

G Thompson (profile) says:

Re: Re:

Statute law (criminal especially) is not about what is right nor wrong instead the law is about imposing some sort of structure, order, security, consistency (coughs), and above all confidence of the public in governmental and quasi-governmental institutions, and maybe, just maybe, about what seemed morally correct at the TIME of its proposal.

This is why we have an ability for discretion under most laws for the prosecution (before and after charging) and for the judge/jury at pre-trial hearings, and for the judge at sentencing hearings.

It’s also why the law is sometimes classified as a living entity since it should be constantly changing to reflect the changing times, social requirements, and necessities faced in the future.

Calling what Swartz did as wrong is to most reasonable people (not you) absolutely incorrect, in fact the law with current mores of society is itself wrong, ambiguous, inconsistently applied, and is now giving the populace a lack of confidence in both it’s application and the institution (DoJ) who its to be applied by.

What Aaron did was not wrong. Sadly it was and still is illegal under the current law. Though an argument could be made that Aaron’s actions were actually de minimus and therefore did not meet the requirement for any charges to have ever been applied.

Applesauce says:

Three Felonies a Day

The great book by points out that everyone commits three felonies a day (some people do more). They just don’t get caught, and often don’t even know they did it.

The elimination of the mens rea requirement in so many cases means that it doesn’t matter if you had any criminal intent was.

Someone who wanted to investigate thoroughly might look into Carmen Ortiz and Stephen Heymann to see how many felonies they have committed. A website where many can contribute the evidence of their crimes might be illuminating.

Richard (profile) says:

Re: Three Felonies a Day

Someone who wanted to investigate thoroughly might look into Carmen Ortiz and Stephen Heymann to see how many felonies they have committed. A website where many can contribute the evidence of their crimes might be illuminating.

This might work. In the UK a few years ago a senior policeman was making headlines by suggesting that people should be prosecuted for speeding even if they were only 1mph over the limit. In the UK it is usually something like 10% + 1 mph so you need to do at least 45 in a 40mph zone to be at any risk of a ticket.

The newspapers tracked his car with speed guns until they caught it doing 43 in a 40 zone – then they put the evidence on the front page. He went quiet after that!

Kenneth Michaels (profile) says:

Re: Three Felonies a Day

Prosecutorial discretion. You know those White House petitions? Well, they actually make a difference because no prosecutor wants to make a decision that will put him or her on a petition to be fired. That is why it is important to sign this White House petition to fire Steve Heymann:

https://petitions.whitehouse.gov/petition/fire-assistant-us-attorney-steve-heymann/RJKSY2nb

This petition has stalled and we need your help. Please spread the word. If it doesn’t get to the 25k mark (the older threshold), then we will send the wrong sign to the prosecutors.

Anonymous Coward says:

I should think on this one, the troll should pull in his horns and think a moment about what he is about.

You do realize that cyberbullying nearly passed as a law don’t you? Do you understand that if it had what you are doing trolling could be viewed as cyberbullying, resulting in a closer look to see what else you might be guilty of? Say, how about they give you 6 months in jail for that activity…unless of course you won’t plead guilty.

anonymouse says:

Re: Re:

The first thing that needs to be done is that people must stop this crazy chant that America is the land of the free. Seriously you are not free when things like this have happened and will continue to happen.

Lets start from today, whenever anyone calls America the land of the free, call them out on it, America is the land of the oppressed, the land of greed and the land of Industry above all else.

The American constitution is just a piece of paper ignored by the government and the courts for the last 20 Years. The only way America can retain the name of the land of the free is by actually making it a place where people are not only free to do what they want(without harming others), but also free from any form of injustice by the police, courts and government.

America “The land of the Oppressed”

Glenn D. Jones (profile) says:

Why isn't the mainstream media citing Gertner?

I notice that the mainstream newspapers don’t quote Gertner.

For example, I was appalled by this editorial in the Globe and Mail:

http://www.theglobeandmail.com/commentary/editorials/when-did-it-become-wrong-to-punish-hackers/article7654240/

Like most newspapers, it clearly lacks details on the cases it casts judgment on. But what I find so galling is the lack of any sympathy whatsoever for Swartz and his family.

Even Robert Levine called the suicide a “tragedy”. The Globe and Mail seems to just stop short of calling the suicide “justice”.

shane (profile) says:

Stealing is Stealing

I’m pretty sure the common law method of dealing with theft was returning the goods or their value plus some amount of money over that for time and trouble. The fact that we just jail everyone for everything is a huge piece of the puzzle if your question is, “Why is our criminal justice system so broken?”

Yes. Theft is theft. Congratulations. That doesn’t mean we need people to go to jail.

Constantly lost in all the kerfuffle is that there was no theft here, but that’s supposedly an entirely different matter. It wouldn’t be if theft were treated like theft, and not the exact same as assault, for example.

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