State prosecutors who investigated the late Aaron Swartz had planned to let him off with a stern warning, but federal prosecutor Carmen Ortiz took over and chose to make an example of the Internet activist, according to a report in Massachusetts Lawyers Weekly.
No jail time was planned for Swartz by the Middlesex County prosecutor. Federal prosecutors took over the case seeking to 'make an example' of him. "Continuance without a finding" was the anticpated decision.
Middlesex County's district attorney had planned no jail time, "with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner," the report (alternate link) said. "Tragedy intervened when Ortiz's office took over the case to send 'a message.'"
Continuance without a finding" was the anticipated disposition of the case were the charge to remain in state court, with the Middlesex County District Attorney to prosecute it. Under such a disposition, the charge is held in abeyance ("continued") without any verdict ("without a finding"). The defendant is on probation for a period of a few months up to maybe a couple of years at the most; if the defendant does not get into further legal trouble, the charge is dismissed, and the defendant has no criminal record. This is what the lawyers expected to happen when Swartz was arrested for "trespassing at MIT." But then the feds took over the case, and the rest is tragic history.Federal prosecutor Carmen Ortiz assisted by ADA Stephen Heymann took over the case, seeking to make an example of Swartz. Ortiz has been discussed as recently as last month as a candidate for MA Governor, and Heyman was considered equally ambitious.
But the sweeping nature of federal computer crime laws allowed Ortiz and Assistant U.S. Attorney Stephen Heymann, who wanted a high-profile computer crime conviction, to pursue felony charges. Heymann threatened the free-culture activist with over 30 years in prison as recently as the week before he killed himself. Rep. Zoe Lofgren, a Democrat whose district includes the heart of Silicon Valley, has proposed rewriting those laws.At Aaron's funeral, his father unequivocally blamed the government.
The Boston U.S. Attorney's office was looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill," Elliot Peters, Swartz's attorney at the Keker & Van Nest law firm, told the Huffington Post. Heymann, Peters says, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."
"He was killed by the government," Swartz's father, Robert, said last week at the funeral in Highland Park, Ill., according to a report in the Chicago Sun Times.Well I think Ortiz can scratch any idea of running for governor, now.
Aaron's death is a great loss to the internet community and society at large and it is heartbreaking that political ambition was at the heart of it.
Heymann led the investigation of computer hacker Albert Gonzalez-associates Jonathan James and Stephen Watt for computer intrusion and identity theft from the TJX Companies. Watt was successfully convicted. James, still an alleged "unindicted co-conspirator," committed suicide two weeks after the U.S. Secret Service raided his house. In his suicide note, Jonathan James wrote that his suicide was in response to the investigation of a "crime he says he did not commit." Gonzalez was never charged in the TJX case.
2:33 PM PT: Thanks to everyone commenting and giving this important story the visibility it warrants on the Rec List. And h/t to limpidglass for this wonderful comment that encapsulates the problem we face.
8:55 PM PT: There is a lot of discussion in the comments about what his sentence would have been and who would have decided it. From the comments, a link to an article by a retired judge who has weighed in on the case:
This is where the judgment of prosecutors, and specifically the judgment of Ortiz, becomes a major issue, Gertner says. She learned on the bench that the power of prosecutors have increased because federal sentencing guidelines have decreased the powers of judges to exercise discretion.
“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.
And this is what Gertner says Ortiz lacked in the case of Aaron Swartz. If the government was willing to recommend four months in prison, Gertner asks, why not two years in a diversion program which would have suspended and dropped charges if he committed no crimes during that period?
“We don’t wreck your life with a criminal prosecution if we think this kind of attention drawn to what you did is all we need to do,” Gertner said.