Aaron Swartz defense: prosecutor Steve Heymann deliberately withheld exculpatory evidence

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35 Responses to “Aaron Swartz defense: prosecutor Steve Heymann deliberately withheld exculpatory evidence”

  1. Does this open the door to a challenge to prosecutorial immunity?

  2. bzishi says:

    The case was dismissed so how can there still be a gag order? And what possible reason could the government have for keeping information secret at this point in time other than to protect their prosecutors from misconduct allegations? It seems to me that the judge in this case might be helping to protect the prosecutors.

  3. Will Holz says:

    So why does this guy still have a job as a prosecutor again?  Regular people get fired for not showing up to work on time because there was traffic dropping their kid off at school.

  4. That_Anonymous_Coward says:

    Its still sad that they have rules against hiding evidence.  The people who represent Justice and they need rules and training to tell them to not hide evidence.  Its been done for years and years…
    and they wonder why we no longer trust them

    • Prezombie says:

      Rules aren’t there to say ‘We don’t trust you’. They’re there to say ‘don’t do this’. Trust isn’t a factor either way, I trust people not to kill me even in situations that they could get away with it.

      The bigger reason people are losing trust in law enforcement is because those rules against hiding evidence, purjury, or worse, simply aren’t enforced in many cases where anyone else would be jailed on the order of decades.

  5. Jonathan Roberts says:

    I guess one of the positive things about the last decade is that we’ve been able to look behind the curtain a number of times to see what governments and people in them do with their secrecy. As it turns out, it may not be in our best interests after all.

  6. geeks says:

    I agree with the statement that this might lead to evidence being thrown out, but it is not “exculpatory.” Exculpatory evidence would be evidence that he didn’t commit the acts he was accused of, this at best throws out evidence that he did commit said acts. Not sayin its right, just sayin…

    • SomeDude says:

      Dictionary says

      Exculpatory: tending to clear from a charge of fault or guilt.

      Seems like the word is being used appropriately.

      • Barry Kort says:

        There is a subtle difference between failing to supply exculpatory evidence that conclusively disproves a thesis and failing or neglecting to supply evidence to affirmatively prove a thesis.

        As I read it, the Secret Service was in no rush to examine Aaron’s computer and thumb drive because they wanted it for reasons unrelated to the DoJ case against him.  As I read it, the Secret Service wanted these items to discover information that might have led them to identify members of the Anonymous collective.

        As I understand it, Aaron routinely encrypted sensitive files on his machines, making a search warrant fairly useless.

        • SomeDude says:

          Regarding whatever distinction you may be driving at regarding the term “exculpatory”, is there a way said distinction sheds an important/useful light on this case that is otherwise missing?  I can’t get over the feeling that this is quibbling over terminology with no concrete implications for the discussion at hand.

          • wysinwyg says:

             If it’s not exculpatory evidence then the prosecution did not commit a crime by not notifying the defense about it. 

            That’s still not quite a “concrete implication” because Heymann will have immunity for any crimes committed in the course of prosecuting Swartz.

          • Barry Kort says:

            Yes.  The indictment was a sham on behalf of the Secret Service, whose real objective was to discover the identities of members of the Anonymous collective.  

            The evidence for this theory can be found in yesterday’s indictment of Matthew Keys.  The DoJ has negligible interest in prosecuting a relatively harmless prank on the LA Times web site.  

            But they do have an interest in leveraging their prosecutorial power to gain information on the identities of members of the Anonymous collective. That’s their obvious objective.

        • wysinwyg says:

          failing or neglecting to supply evidence to affirmatively prove a thesis.

          But that’s not what happened here so that distinction is irrelevant.

          A defense can be mounted based on the fact that no warrant was issued for seized property.  The prosecution did not disclose the fact that property was seized without a warrant.

          That is, a defense attorney can argue for a “not guilty” finding on this basis.  That would seem to make it “exculpatory evidence” in every way that matters (i.e. not in an obnoxious internet pedantry way but in a way that would actually make a difference in a courtroom).

          If geeks would like to share some citation or reference in which a distinction is clearly drawn between exculpatory evidence and evidence of investigative or prosecutorial misconduct I would happily acknowledge that I’m wrong on this.

          • Barry Kort says:

            The USAO didn’t need the seized property because there was no useful evidence on it related to the charges in the indictment.

            But the Secret Service wanted the seized property for an unrelated purpose — to search for information that might lead to the identities of members of the Anonymous collective.

  7. geeks says:

    The wikipedia entry is pretty spot on: “Exculpatory evidence is the evidence favorable to the defendant in a criminal trial, which clears or tends to clear the defendant of guilt.[1] It is the opposite of inculpatory evidence, which tends to prove guilt.”

    Even with the definition you posted this doesn’t fit. Waiting too long to get a warrant doesn’t clear one from fault or guilt, it merely excludes evidence of said guilt, exculpatory evidence would actually contribute to clearing him. Example: Evidence that a murder suspect was out of the country when the crime took place.

    • SomeDude says:

      You seem to be implying that excluding evidence because of delays in getting a warrant is a hollow technicality when it comes to exonerating somebody.  Disagreed;  the reasons for requiring warrants at various procedural junctures are well-grounded in principles designed to prevent malicious and/or careless prosecution.

      But regardless of how one feels about the above, the definition of “exculpatory” (both the one I pointed out and the one you quote) makes no distinctions between exoneration based on technicalities vs otherwise.

      • geeks says:

        When it comes to court that distinction is both acknowledged and very real. I would never use the term exculpatory when I testify unless it was based on evidence, not the exclusion of evidence.

        • SomeDude says:

          I sure hope any misuse of the term doesn’t derail the prosecution of Heymann and his cronies… that would be sad.

      • geeks says:

        “But regardless of how one feels about the above, the definition of “exculpatory” (both the one I pointed out and the one you quote) makes no distinctions between exoneration based on technicalities vs otherwise.”

        Yes it does. It is evidence that would clear someone. Waiting too long to get a warrant doesn’t contribute to clearing someone, it just removes evidence to convict someone. This is not the same thing, just as “not guilty” “innocent” (not implying either in this case). Exculpatory evidence is evidence of innocence, not merely something to throw out evidence of guilt.

  8. Promethean Sky says:

    Makes me wonder what the next development in this clusterfuck will be.

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