Aaron Swartz defense: prosecutor Steve Heymann deliberately withheld exculpatory evidence

According to Aaron Swartz's defense team, federal prosecutor Steve Heymann (star of Quinn Norton's extraordinary piece on the prosecution) illegally withheld evidence that would have exculpated Aaron:

In the document, Peters argues that Heymann withheld exculpatory evidence. At issue was whether the federal government had properly obtained a warrant to search Swartz' computer and thumb drive. Peters argued that the government failed by waiting more than a month to obtain the warrant. Heymann countered that he couldn't get a warrant because he didn't have access to the equipment. But an email in Heymann's possession, which was written to Heymann himself, showed that assertion to be untrue.
In an email that was not provided to the defense team until the last minute, Michael Picket, a Secret Service agent, wrote to Heymann on Jan. 7, “I am prepared to take custody of the laptop anytime after it has been processed for prints or whenever you feel is appropriate. As far as I know no one has sought a warrant for the examination of the computer, the cell phone that was on his person or the 8gb flash drive that was in his backpack." It would be more than a month before Heymann obtained a warrant -– far too long, in Peters' estimation, which means that the evidence found on the laptop could have become inadmissible.
Peters' complaint, which was filed in late January but has not been previously reported, makes additional charges that cannot be revealed because the government fought for a protective order that keeps case information secret. Peters is attempting to have that order lifted.

Aaron Swartz Lawyers Accuse Prosecutor Stephen Heymann Of Misconduct

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http://profiles.google.com/joshuabardwell Joshua Bardwell

Does this open the door to a challenge to prosecutorial immunity?
- Andrew Singleton
  
  I’m hoping this guy gets charged accessory to murder.
  - http://cobramcgiantballs.tumblr.com/ Xploder
    
    Never gonna happen, no matter how much it’s deserved.
- EH
  
  Federal prosecutors have absolute immunity for on-the-job activities.
bzishi

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.
- Boundegar
  
  They need another reason? This is the 21c.
Will Holz

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.
That_Anonymous_Coward

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
  
  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.
  - awjt
    
    I don’t think we’ve lost trust in law enforcement because rules aren’t being followed.
    
    We lost it when we realized they are itchy-trigger-finger petulant little children looking for any poor excuse to get us into the interrogation room and ram a toilet plunger up our rectum for a confession of our sins followed by a public lynching in the town square.
    
    We lost it when we realized we are essentially no further along than the Inquisition or the Salem Witch Trials. That’s when we lost our trust.
  - That_Anonymous_Coward
    
    The rules are there because they got caught hiding evidence. And then got caught again. And again.
    And the “punishment” for this is mostly nonexistant.
    
    Get caught with a joint goto jail for the rest of your days.
    Lock an innocent man in prison, get a promotion.
    
    edited to try to unbreak links and failed… so I link to the list where i posted it before…
    https://www.techdirt.com/articles/20130308/01330322250/aaron-swartzs-partner-accuses-doj-lying-seizing-evidence-without-warrant-withholding-exculpatory-evidence.shtml#c1332
Jonathan Roberts

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.
- Andrew Singleton
  
  To everyone saying they wanted to live in a cyberpunk world.
  
  I Hope You Are Happy.
  - IronEdithKidd
    
    If we live in a cyberpunk world, then where are my retractable claws? I don’t have them because we live in a burgeoning dystopian totalitarian panopticon instead.
    - awjt
      
      “a burgeoning dystopian totalitarian panopticon”
      
      You rock.
      - IronEdithKidd
        
        Well…I am made of iron. :P
      - http://twitter.com/the_damned_fool the damned fool
        
        I see what you did (and where we live) there. ;D
geeks

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
  
  Dictionary says
  
  Exculpatory: tending to clear from a charge of fault or guilt.
  
  Seems like the word is being used appropriately.
  - http://www.facebook.com/bkort Barry Kort
    
    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
      
      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
        
        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.
      - http://www.facebook.com/bkort Barry Kort
        
        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
      
      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.
      - http://www.facebook.com/bkort Barry Kort
        
        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.
geeks

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
  
  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
    
    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
      
      I sure hope any misuse of the term doesn’t derail the prosecution of Heymann and his cronies… that would be sad.
  - geeks
    
    “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.
    - wysinwyg
      
      You haven’t made a very convincing case. You just keep saying the same thing over and over.
  - geeks
    
    This is a good explanation: http://www.rotlaw.com/legal-library/what-is-exculpatory-evidence/
Promethean Sky

Makes me wonder what the next development in this clusterfuck will be.
- oasisob1
  
  Judging by the comment thread on HuffPo, an indictment for Larry Lessig.
- http://www.facebook.com/bkort Barry Kort
  
  Follow the story of Matthew Keys. The common factor is abuse of prosecutorial discretion under the CFAA to extract information about members of the Anonymous collective.