Debunking DoJ statement on Aaron Swartz's prosecution

Carmen Ortiz, the US Attorney who hounded Aaron Swartz, threatening him with 35 years in prison for downloading scholarly articles from MIT's open WiFi network, has released a statement explaining how harmless and pleasant she had been with Aaron. Mike Masnick just shreds the claims Ortiz makes in her release:

If Ortiz truly believed that his conduct did not warrant such "severe punishment" then she would not have trumpeted the 35 years in the first place, nor would she have piled on more charges. That would serve absolutely no purpose whatsoever if her claim here was true.

Furthermore, as Swartz's lawyers have made clear, Ortiz and her assistant, Stephen Heymann were pretty explicit to Swartz's lawyers that if he did not take their plea bargain offer, the next offer would be for more jail time, and if he still chose not to accept the offer, they'd seek at least seven years for Swartz in court. Tossing out that six month claim as if it were proof of some sort of fair dealing on Ortiz's part is flat out insulting to the intelligence of any thinking person, and downright offensive to the memory of Aaron.

How would Ortiz like it if her own child was accused on trumped up charges and threatened with 35 or more years in prison in press releases -- and then told to "settle" for just six months. I doubt she would find that to be "fair."

Carmen Ortiz Releases Totally Bogus Statement Concerning The Aaron Swartz Prosecution


  1. The guy committed suicide after being offered just six months in a low-security prison? That casts his death in a different light.

    1. I assume you are speaking from direct personal experience on what it is like spending six months in a minimum-security prison and then reconstructing your life as a convicted felon.

      1. Kevin Mitnick did much more time for much worse things and he’s doing quite well.

        Swartz killed himself because he was depressed and felt trapped.  This prosecutor didn’t do anything odd here.  

        Aaron committed a crime, a minor one, and was offered a very generous plea given that he clearly did actually do something.

        Swartz knew what he was doing and knew the consequences.  Unfortunately it seems he was unable to live with his decision. 

        1. Do you really believe what you’ve written here? Do you hear yourself? Ever hear of prosecutorial discretion? Are you aware of what Aaron actually did? Do you think that sharing academic papers with a wider audience should be punished with life destroying “consequences”?

          If so, we have nothing to talk about.

          And fuckyouverymuch for having the presumptuous gall to tell us why he committed suicide.

          1. 6 months in the pokey isn’t “life destroying.”  

            Was Aaron told he wouldn’t be prosecuted?I mean, you can whine about the unfairness of life and all that but Aaron Swartz chose to break the law and there were consequences.

          2. You’re absolutely right except for the part where he broke the law, which he did no more than you have.

            And *any* criminal record is life destroying, especially in the US where the system is set up to be as life destroying as possible.

          3. I have a nice jagged half-brick for the arseholes of blind, callous, authoritarian sticklers like yourself.

            You’d fail the Milgram test in a heartbeat.

            May you have your life ruined by zealous fuckwits over an imagined transgression, and suffer an endless procession of smarmy I-told-you-sos like you just dished out.

        2. I appreciate the sacrifice you made by setting yourself up to look like a dick so that we have someone other than all the other dicks on the internet to be disgusted by. May the internet gods recognize your efforts to distract us from our outrage at injustice and give you more tubes and not big trucks.

        3. Bullshit. If he didn’t take the plea and went to trial, the government was planning to recommend a decade in prison. So they felt it was reasonable to lock him up for ten years for this crime. That 6 months plea agreement that is being touted is just a diversion to try to make the US Attorney look reasonable, when she was anything but that. It was a tactic designed to stress and intimidate Aaron Swartz to giving up his right to a fair trial. In fact, the assistant prosecutor started twisting the screws by telling him that every moment of delay would make the plea agreement worse. Oh, and there is the thing about the judge who is not in any way bound by the plea agreement: he or she could pick any damn sentence.  And with 13 felonies, I wouldn’t be so sure he would have ‘just’ gotten 6 months.

          There is a perfect quote for this type of logic, though I forgot who said it: “So you’re innocent, then just do 6 months”. If you fail to acknowledge that the plea agreement system is designed to intimidate defendants into giving up their rights, you are disingenuous. And if you fail to acknowledge that innocent people have agreed to pleas to try to minimize the overall damage, then you are being dishonest.

          1. Word.

            There needs to be a law against that plea-bargain terrorism; the very notion is a fucking travesty of any approximation of justice.

        4. “This prosecutor didn’t do anything odd here. ”
          If offering a plea bargain of 6 months in prison, and threatening 7 or 35 years in prison if you don’t take the plea bargain is normal operating procedure, then it means that the justice system is utterly broken. It means that there’s an enormous legal risk attached to exercising your right to a trial, which effectively means that that right has been taken away. 

          If the prosecutor will be satisfied by a six month’s sentence if the accused doesn’t contest it, but files charges that carry a much longer sentence if the accused does want his day in court, it means that the additional charges have nothing to do with justice and are purely a negotiating tactic to compel the accused to comply.

          This enormous disparity in sentencing also leads to massive perjury because many people will accept the plea bargain and plead guilty even when they are in fact innocent because they don’t want to take the risk of spending decades in prison and facing financial ruin if they go to court. 

          This is the system that you’re describing as being “very generous”.

          1. But what if someone is a doubleplus ungood crimethinker?  What then?  Eh?

            Actually, America seems to be about ready for Judge Dredd style street judges.  

            Or maybe more like Judge Death style street judges.  After all, Judge Death just enforced the law, don’t do the crime if you can’t do the time… ssssinnersss…

        5. Do you know how difficult it is to find a decent job even if you don’t have a criminal record?!

          A gal I grew up got some stupid drug charges when she was 19 and stupid, had a shitty lawyer, and now has a felony record. She is not violent. She’s almost 30, has a bachelor’s degree … and can’t find a job. Because she has a felony. Of course, there is a way to clear her record – but she can’t afford it without a job. Which she can’t get without clearing her record  How convenient!

          I love how all you non-felons are like, “NO BIG DEAL, man! No big deal.”

          Fucking idiots.

    2. Six months IF he pleaded guilty to several felonies, and agreed to be barred from using a computer for some significant period of time, according to NPR’s report this evening.  That offer was withdrawn, and the prosecution now says they were ‘only’ going for seven years, not minimum security.  

      Would you plead guilty to several felonies you did not commit? 

    3. people who actually know their rights wouldn’t consider that an offer, when you are innocent in the first place. It’s a gross perversion of justice.

  2. I think they’ll say nearly anything to anyone to avoid accountability in this matter. They just are not going to admit that they used egregiously bad laws as a cudgel to trump up the prospects for significant jail time.  Of course, the “law n’ order” a-holes are trotting out the banal old BS about “don’t do the time if you can’t do the time” … with no regard whatsoever to whether the “time” was  proportionate to the alleged-crime.

    What should have been a low level misdemeanor was maliciously warped into a series of rather grave felony charges. All to make an example of someone who tweaked the system in the mildest fashion. It wasn’t a prosecution…it was a persecution.

    That there seems to be no admission of culpability or over-reach here is disturbing. That they refuse to acknowledge the tacit promotion of such practices as a career-booster in the DOJ is nauseating.

    I don’t know what’s in their minds or on their consciences now, but they are being judged rightly in the court of public opinion.

    1. Agreed.  I fail to understand why these people are held to lower standards than the rest of us.  Ortiz just demonstrated that she no longer deserves any position that gives her power over others, none of us would after doing what she did.  

      I’m all for her having a happy life as a zookeeper or a gardener, we shouldn’t seek to punish people.  But she needs to lose her influence over other human beings until she learns not to abuse it so horribly.

      1. “I’m all for her having a happy life as a zookeeper or a gardener, we shouldn’t seek to punish people. ”

        Pretty sure she’s going to be a health care lobbyist at six figures.  What’s the point of selective prosecution if you can’t cash in?

        Or maybe she’ll work for the RIAA?  She’d fit right in.

    1. You’re probably going to have to make a deal with Percival Dunwoody if you want to do that.

      1. Consider the fact that even the most heinous criminals need criminal defense lawyers. I’d be surprised if the best criminal defense lawyers were not sociopaths.

    1. That posting is somewhat misleading.  They keep harping on “but no executives were personally charged or convicted”, but admit that that’s not routine anywhere for corporate misdeeds.  Blaming Ms Ortiz for doing nothing personally against execs when such prosecutions are rare enough to be nationally notable is NOT her acting in an unusual or improper manner.  If it’s a systematic problem, which one can argue but I don’t believe is necessarily true, then blaming any one prosecutor for it is not fair or reasonable.

      It would be better to find cases regarding individual behavior – not corporate – where she used prosecutorial discretion in a more lenient manner, than make the stretch asserted by hcrenewal…

      1. Your post is misleading: nobody’s blaming only one prosecutor, that post just illustrates the behavior of one of them. You also engage in sophistry by saying she is being blamed for doing nothing “personally,” when it’s her professional (including departmental priorities, such as are acted upon by people like Stephen Heymann) practice that is being questioned. Then you bring up a red herring with that “systematic problem,” which is an entirely different subject.

        Maybe it would be better to do what you suggest. Where would you go if you wanted to get a list of her cases?

      2. She’s corrupt, that’s why she didn’t prosecute them.  Simple as that.

        The fact that we have a corruption epidemic throughout the executive, legislative and judicial branches at all levels of government doesn’t magically make corruption ok.  If anything, it makes it worse.  One corrupt prosecutor is a problem, one million corrupt prosecutors is a civilization ending tragedy.

    2. Hey, Ortiz and Heymann may get lucrative jobs working for those guys one of these days! (Possibly sooner than they originally expected!).  You can’t expect them to treat a potential meal ticket worth hundred of thousands of dollars the way they treat one of the little people, can you?  

      Where do you think you are living?

  3. Cory, stop getting your knickers in a bunch!  There was a violation of law/ statute (whichever way you want to look at it, the prosecutor had to rely on something legal and that the lawyers could not go around). l The law/statute  may have been unjustified but it was on the books.  We can admire Aaron for doing the right thing (as we see it) but it was still illegal:  the principle is “dura lex sed lex”. But it seems that in your libertarian streak, you want to have your cake and eat too, i.e. celebrate the breaking of the law and not having any of the consequences.  Aaron was a good man who contributed a lot and it is horribly sad that the way he faced the consequences of one of his action ended by killing himself.  A personal decision and not a state one as you seem to imply…

    1. As a routine matter, most Americans commit multiple infractions and several misdemeanors per day, and not all that unusually a potential felony or two a week.  “Breaking the law” is not sufficient cause for prosecution normally.

      Damaging someone and/or causing some ruckus in the course of breaking a law – as happened here – often justifies prosecution, but the “damaging someone” seems to have faded (JSTOR) or been unclear (MIT) despite which Ortiz continued pressing forwards.  The ruckus aspect is relatively unambiguous.

      He knew – and should be accountable for – raising a ruckus.  The question was, did it reach a reasonable threshold for criminal behavior, or merely civil tort, or merely disruption that’s not legally actionable.

      Before it was clear what had happened, one can understand the arrest.  Afterwards, JSTOR declined to prosecute or file a lawsuit.  MIT was ambiguous.  It’s not clear if there was enough left to justify even a tort, much less criminal prosecution.
      THAT’s the issue.

      1. JSTOR allowed unlimited downloads to people on MIT’s network. MIT had no restrictions on who could connect, and the closet was unlocked and without any signage. 

    2. Well, my knickers are rather severely bunched over this…and they are not un-bunching anytime soon. I’m a guy in his 60’s, a grandfather who has never run afoul of the law (OK, I got a small ticket at an urban speed trap 25 years ago…) I do not personally know anyone who has been driven down by this hideous phenomenon but it has had me on slow boil for years now. That’s what I get for reading the papers.

      I have watched Ms. Ortiz and her crew “throw the book” at nearly everyone who comes across the prosecutorial sights of their Boston office. The prison industry should give her some kind of award for sending lots of “residents” their way for stays that would bogle the jaded views of even the most hard-assed “law n’ order” types. 

      Let’s not even get into the horror show of the prisons.

      It’s not that there are no transgressions of the law, its that the laws themselves are just plain awful. Thank the pinheads in congress for that…another matter. Prosecutorial discretion really boils down to this: do we use every technicality we can to get dangerous criminals off the street…or do we make sure that minor offenses by well-meaning people are treated humanely in a way that serves as a serious warning.

      I’d like to say that the US Attorney’s office in Boston just blew it badly here and understands as much. But its really just business as usual for this crew…and that’s why the outrage is quite appropriate.

  4. To be clear, Aaron had the courage to break the law/statute/rule.  A hero has the courage to face the consequences of the action. Unfortunately, Aaron seemed to have other issues to deal with that did not allow him for that next step.  Regrettable but the law is not meant to be tailored to each individuals but to be be applied to all (except of course in Unicorn fantasy!).

    1. Well, it isn’t applied to the torture contractors, or the government, or the banks. It isn’t applied to those who are above the law.

      It is applied to those who are beneath the law. Except that the protections like the Fourth and Fifth Amendment aren’t often applied, just the punishments. It is applied to those who stand up against the torture contractors, and the government, and the banks, and who expose war crimes. It is applied to break people down, and the law becomes one more tool, alongside sleep deprivation, solitary confinement, and sexual humiliation.

      1. True!  But the failures in some cases should not be used for failures in others!  Rather the application of the law in some cases should be used to ensure application in all cases!  Utopian? maybe but certainly a better principle than the erosion of the law as promoted by some on this thread.

        1. I’m far more concerned about the erosion of compassion, the erosion of common sense, the erosion of perspective and the erosion of fair play than I am about your bogeyman erosion of the law.

          1. Word. This reminds me of the times when undocumented migrants are victims of crime and you have a bunch pretty much like the asses commenting upthread here sharing nuggets of “wisdom” such as “if they weren’t here illegally this would have never happened!”.

            I cannot believe some people are so incapable of the most basic empathy. The comments on this article have actually made my jaw drop.

        2. “But the failures in some cases should not be used for failures in others!”

          The failures in some cases, especially fiascos like HSBC laundering money for drug cartels that use human heads as calling cards and getting off with “boys will be boys” essentially means that the law does not exist and is just an illusion.  The government just does whatever it wants.

          Besides which Swartz didn’t actually break the laws he was accused of breaking, the prosecutors were just making stuff up.  If Swartz had dropped a banana peel, they’d have charged him with attempted murder, apparently, based on their “creative” application of other charges.

    2. Actually, prosecutorial discretion is ALL about “tailoring” the law for situations.  The law applies to all. Justice…real justice…is about its application.

  5. I think some people might have gotten an egregiously wrong idea about laws. Laws are not automatically right or just for society. Any law must be interpreted and applied. Our entire legal system is designed for leeway, common sense, and interpretation. Judges, lawyers, bureaucrats at every level have the power and the responsibility to apply the law in a just manner. If laws are unjust, it is the responsibility of courts not to apply them. I’m not quite sure where the backwards thinking of blindly applying law without reason comes from, but it seems very dangerous to me.

          1. Well, it’s not like we can leave private prisons out of this equation, either. The point is we’re past the point-of-no-return in regards to the US legal system possessing so much as a passing resemblance to justice.

  6. From the article: “How would Ortiz like it if her own child was accused on trumped up charges and threatened with 35 or more years in prison in press releases — and then told to “settle” for just six months. I doubt she would find that to be “fair.” 

    I think what bothers me the most is the infantilization of Aaron Swartz.

    He was not a child.  This was not a bullied teenager.  This was an intelligent and savvy adult.  An adult who was depressed.

    If you think Aaron Swartz killed himself because he was bullied then you are saying that Aaron was just a small child who couldn’t stand up for himself.  You’re saying he was a coward.

    There are lots of people who are in trouble with the law every day and are threatened much more harshly with much worse who do not kill themselves.  

    1. Brillow, I get what you’re going for over the course of several posts, and I generally agree, though with due compassion for Aaron and the shared loss of all of his friends, family, and the internet community at large. When he first passed, Cory posted a great video of a talk he gave that explained his MO quite brilliantly. Referencing that, and his prodigious capabilities, it seemed that not only was he prepared for a fight, he was willfully inciting one, and he had some of the premier thinkers of modern law behind his back. I think his intent was not only the Robin-Hooding of walled away literature, but to lay open the primitive ways our legal system deals with it. The former could have been accomplished in hundreds of ways, literally millions of students across the country have access to JSTOR, and it’s perfectly legal to download any number of articles. It was two years ago that he was charged. Judging by Cory’s characterization of him, it’s fair to say that he was facing inner turmoil that others couldn’t discern, or would explain away. And the fact that everyone assumed him to be incredibly capable made it harder for him to share his thoughts and problems with others. If you’ve ever been that guy to other people, you might understand.

      Maybe he just lost steam. The initial brazenness which motivated him eventually was worn down by the erosive quality of any drawn out legal proceeding. For a guy who’s had a tendency to never sit still on any one given topic, he may have felt he had been forcefully overcomitted to a fight which he had increasingly little stake in, and those for whom he thought he was fighting had lost interest or turned their attention elsewhere, leaving him holding the bag.

      But this whole “dastardly prosecutor” narrative that keeps rising up seems to reflect a rejection of blame by those who should instead be contemplating their role, or lack thereof, in all this. I’m not wording that right, but I hope the sentiment gets across.

          1. Good; as far as I can make out, the prosecutor here has been the very definition of dastardly.

            Well actually, the term’s so quaint and silly it’s not good for much other than straw-manning, so make that bastardly.

    2. Nobody is saying that extreme injustice would have caused his suicide by itself. What we are saying is that it is certainly plausible that with his depression that the extreme injustice pushed him over the edge. Thus, those who perpetuated the extreme injustice bear some responsibility for his suicide. And since they were warned about his mental health, they bear even more responsibility.

      It is important that you understand this. The same argument that you are using is how bullies try to pretend their hands are clean when thier victim commits suicide. In almost all of those cases the victim was depressed (which for bullies and prosecutors, is often a signal to attack). Pretending that the lack of certainty to the cause is a valid reason to not hold someone accountable is among the reasons why this keeps happening.

    3.  Saying Swartz committed suicide because he was depressed is also a sort of infantilization.

      Let’s be realistic.  There are thousands or millions of depressed people who do not commit suicide.  Those who do commit suicide do so as a result of some kind of trigger.

      In this case, it’s not really hard to see what the trigger is.

      But the suicide isn’t really the issue.  The issue is that Ortiz leaned very hard on this case, pushing sentences that simply weren’t proportional to the crime committed.  This is in a case where neither of the aggrieved parties were at all interested in pursuing charges.

      This case has “politics” written all over it.  Ortiz was trying to make an example of Swartz.  The use of the law as a political weapon completely undermines the legitimacy of rule of law.  If you’re halfway as concerned about rule of law as you claim to be then you should be pretty upset about Ortiz’s actions as well.

  7. I’m amazed at the surprise and confusion regarding the US Attorney’s office tactics.  These are commonplace methods used daily by prosecuting attorneys nationwide.  If only the internet reacted with such outrage towards those being prosecuted without the benefit of private attorneys.

    1. We need to be able to text our outrage like we text our votes for American Idol… then more people would be involved.

    2. I get pissed off every time I catch a whiff of plea-bargaining, let alone ambit prosecution, but since I live in a relatively civilised country, it’s not a local issue for me.

      Also, I think you’ll find ignorance is the main reason the US is going to hell in a handbasket, hence the surprise and confusion when a portion of the malaise is exposed.

    3. Do you have a point besides “Americans are ignorant and apathetic”?  That one’s not exactly news.

      If you’re really worried about prosecutorial misconduct I would think you’d take this as a teaching moment rather than a chance to crow about perceived hypocrisy.

    4. I think some people think that this sort of plea bargaining only happens with the “real baddies” when we don’t have a great case against them. But there are incentives for even non-careerist prosecutors using it. An attorney’s caseload is smaller if they can convince a lot of people to plead out. They won’t have as many trials calling on their time, and trials take a lot of prep. With cutbacks at most DAs they probably have a pretty big caseload. So they have a warping incentive to try to scare the defendant in some minor theft case into pleading out for something. That way they’ll have more time to deal with the criminals the attorney views as more serious threats to society, which I’m sure comes as cold comfort to the poor bastard who’s gotten the plea “deal.”

      A lot of what is portrayed as diversion or community justice can look bad as well. If you get told that you can wipe out any record of your arrest for being, say, naked in the PDX airport for 24 hours of community service if you just plead guilty? Most people wouldn’t have the fortitude to take that to trial. They’d just take the community service whether or not they thought they were guilty of a crime.

  8. What comes as the biggest surprise to me: nobody seems to want to go after JSTORE in this matter. True, they did not make any direct demands for prosecution and even explicitly denied that any harm was done to them, but the bigger picture is that they are sitting on millions of academic papers, produced at no cost to them in the academy and making a fortune by restricting access to them to the public at larger.

    And sure, it was the prosecutors that drove Aaron to suicide, but, hey, if the material was open access in the first place, this would never have happened! After all, the prosecutors are just low level grunts/orcs/hobgoblins in a worlds where the RIAA/MPPA is Sauron and JSTORE is Saruman.

    I say COPYRIGHT killed Aaron Swartz, and (intellectual) property once again proved to be not only theft but MURDER!

  9. What bothers me is that most prosecutors seem to have this “If you have a hammer…” approach to almost all situations.  It seems like the only situations where they don’t prosecute cases are ones where it’s high profile and they might lose or if it has too many political implications.  The only other option they seem to consider is to plea bargain it down to some lesser charge.  The thought of just dropping it never seems to be an option.

    I spoke to a county prosecutor at my daughter’s school who was speaking at a ‘Computer Safety’ lecture for parents.  He gave an example about students texting nude pictures of themselves to each other on cell phones and in the case where one is a minor (16) and one a legal adult (18).  He said that under the law this made both of them guilty of trafficking in child pornography.  His idea of a “good” result was getting together with parents and children, everyone determining that no real harm was done and resolving the issue amicably.  This seemed reasonable to me until he elaborated on how this really worked out.

    His version of ‘resolving the issue amicably’ meant that both kids plead guilty to some lesser crime on their permanent record and got probation for a year.  I asked why this amicable resolution had to mean permanent criminal records and probation if all the parties agreed that no harm was done.  He chuckled in a rather patronizing way and said “Well, this way we can keep an eye on them and it makes things easier for us if another situation comes up.”

    His attitude scares the hell out of me.  Unless your highest goal in life is to be working a job where you say “Do you want fries with that?”  This kind of thing will follow you around forever.

    In an attempt to come to terms with new technology the legislature have added laws that allow prosecutors to tack on charges with multiple years added to sentences simply because the crime involved a computer.  According to this prosecutor he said “These laws are a great tool for us.”

    How many things *don’t* involve a computer now?

    1. Here we all were, thinking the intertron is so great, but turns out it’s just an infrastructure of unprecedented oppression with a few bells and whistles.

  10. 6 months in prison is not that bad when you take into consideration all the benefits. Better than being homeless.

Comments are closed.