Details Come Out On US Attorneys Withholding Evidence In Aaron Swartz Case

Legal Issues

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