Republished by permission of Massachusetts Lawyers Weekly, where this article first appeared. Thanks to my friend Harvey for making this available to readers of Media Nation.
By Harvey A. Silverglate
Some lawyers are joking when they refer to the Moakley Courthouse as “the House of Pain.” I’m not.
The ill-considered prosecution leading to the suicide of computer prodigy Aaron Swartz is the most recent in a long line of abusive prosecutions coming out of the U.S. attorney’s office in Boston, representing a disastrous culture shift. It sadly reflects what’s happened to the federal criminal courts, not only in Massachusetts but across the country.
It’s difficult for lawyers to step back and view the larger picture of the unflattering system from which we derive our status and our living. But we have an ethical obligation to criticize the legal system when warranted.
Who else, after all, knows as much about where the proverbial bodies are buried and is in as good a position to tell truth to power as members of the independent bar?
Yet the palpable injustices flowing regularly out of the federal criminal courts have by and large escaped the critical scrutiny of the lawyers who are in the best position to say something. And judges tend not to recognize what to outsiders are serious flaws, because the system touts itself as the best and fairest in the world.
Since the mid-1980s, a proliferation of vague and overlapping federal criminal statutes has given federal prosecutors the ability to indict, and convict, virtually anyone unfortunate enough to come within their sights. And sentencing guidelines confer yet additional power on prosecutors, who have the discretion to pick and choose from statutes covering the same behavior.
This dangerous state of affairs has resulted in countless miscarriages of justice, many of which aren’t recognized as such until long after unfairly incarcerated defendants have served “boxcar-length” sentences.
Aaron Swartz was a victim of this system run amok. He was indicted under the Computer Fraud and Abuse Act, a notoriously broad statute enacted by Congress seemingly to criminalize any use of a computer to do something that could be deemed bad.
As Harvard Law School Internet scholar Lawrence Lessig has written for The Atlantic: “For 25 years, the CFAA has given federal prosecutors almost unbridled discretion to bully practically anyone using a computer network in ways the government doesn’t like.”
Swartz believed that information on the Internet should be free to the extent possible. He entered the site operated by JSTOR, a repository of millions of pages of academic articles available for sale, and downloaded a huge cache. He did not sell any, and while it remains unclear exactly how or even if he intended to make his “information should be free” point, no one who knew Swartz, not even the government, thought he was in it to make money.
Therefore, JSTOR insisted that criminal charges not be brought.
U.S. Attorney Carmen Ortiz obscured that point when announcing the indictment. “Stealing is stealing, whether you use a computer command or a crowbar, whether you take documents, data or dollars, and whether its to feed your children or for buying a new car” she said, failing to recognize the most basic fact: that Swartz neither deprived the owners of the articles of their property nor made a penny from his caper.
(Ironically, shortly before Swartz’s suicide, JSTOR recognized the intellectual and moral force of the prodigy’s point of view, and it announced that thenceforth it would provide a portion of its articles free of charge as a public service. The organization’s very existence, after all, depends heavily on public funding. Swartz had made his point, but he paid a heavy price, because Ortiz’s office could not discern the difference between Swartz’s victimless actions and the use of a crowbar to steal for profit.)
Swartz was unwilling to plead guilty. He did not view himself as a felon. Indeed, many experts on the CFAA have powerfully argued that he did not violate any reasonable interpretation of the statute, and defense counsel had a highly respected electronics expert prepared to testify why that was so.
But the government kept bludgeoning Swartz by threatening him with dire consequences in the absence of a plea. Hence, while the original indictment contained four counts with a maximum sentence of 35 years, a superseding indictment brought just four months before his suicide upped the ante to 13 counts.
Of course, the government, which told Swartz’s lawyers that prosecutors would recommend seven to eight years in the event of a conviction after trial, announced its willingness to recommend “only” six months if he would plead. With such a deal, the government would avoid the possibility of an embarrassing loss.
But trial was risky for Swartz, as well as expensive. (Swartz’s partner, Taren Stinebrickner-Kauffman, reported that he was very concerned that the trial would bankrupt his family.)
While it is impossible to know the reasons for Swartz’s suicide, one would have to be naive or dishonest to fail to recognize the role played by the pressures ratcheted up by Ortiz’s office.
Such pressures help explain why fewer than 5 percent of federal criminal cases in Massachusetts are taken to jury trials, a phenomenon that has concerned U.S. District Court Judge William Young, who observed in Bertoff v. United States of America that “[e]vidence of sentencing disparity visited on those who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible….”
After days of silence in the face of mounting criticism and a petition to Washington that, as of this writing, gathered 46,844 signatures seeking her dismissal, Ortiz finally responded. I was a part of a group of compensation lawyers in Melbourne, Australia on a sunny beach when I heard her initial non-responsive statement: “We want to respect the privacy of the family and do not feel it is appropriate to comment on the case at this time.”
When that evasion provoked widespread anger and derision, Ortiz issued a statement on Jan. 16 admitting that “there was no evidence against Mr. Swartz indicating that he committed his acts for personal gain.” She recognized that his alleged conduct “did not warrant the severe punishments authorized by Congress.” Yet she defended her office’s having brought a blunderbuss indictment.
It seems never to have occurred to Ortiz, nor to the career prosecutors in her office in charge of the prosecution, Stephen Heymann and Scott Garland, that there is something wrong with overcharging, and then raising the ante, merely to wring a guilty plea to a dubious statute.
Nor does it occur generally to federal prosecutors that there’s something wrong with bringing prosecutions so complex that they are guaranteed to bankrupt all but the wealthiest.
These tactics have become so normal within the Department of Justice that few who operate within the bowels of this increasingly corrupt system can even see why it is corrupt. Even most journalists, who are supposedly there to tell truth to power, no longer see what’s wrong and even play cheerleader.
Perhaps most disturbing was the prosecutorial callousness reported by Boston Globe columnist and non-cheerleader Kevin Cullen. One of Swartz’s earlier lawyers told Cullen: “I told Heymann the kid was a suicide risk. His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’” The lawyer concluded: “I’m saying they were aware of the risk, and they were heedless.”
Ortiz has been mentioned as a candidate for governor or even the U.S. Senate. That political career is likely over before it begins. Many who have seen through her callous behavior are computer literate and know how to spread a message.
However, the culture of the U.S. attorney’s office will continue undisturbed — unless the bar refuses to tolerate that the federal courthouse has become a place of torment rather than a palace of justice.
An ironic postscript to the Swartz tragedy: MIT and the U.S. Secret Service conducted the video surveillance of the closet at MIT that discovered Swartz’s downloading. He was charged by the Middlesex County district attorney’s office with breaking and entering in the daytime. Lawyers familiar with the case have told me that it was anticipated that the state charge would be continued without a finding, with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner. Tragedy intervened when Ortiz’s office took over the case to send “a message.”
In an earlier era, federal authorities reacted more as state authorities still do. Tim Wu writes in The New Yorker (“How the Legal System Failed Aaron Swartz — and Us,” Jan. 14) that one can compare Swartz “to two other eccentric geniuses, Steve Jobs and Steve Wozniak.”
In the 1970s, Wu writes, Jobs and Wozniak “hacked AT&T’s telephone system to make free long-distance calls, and actually sold the illegal devices (blue boxes) to make cash.”
When Jobs and Wozniak tired of making free phone calls, they built a computer, and the rest is history.
“The great ones almost always operate at the edge,” Wu concluded.
But with the DOJ unable to differentiate real criminals from overzealous bright kids, we are incarcerating, if not killing, our national future. The bar should be in the forefront of warning Congress, the news media and the public that the DOJ and the federal courts, in Boston and elsewhere, are out of control.
Harvey Silverglate is a Boston criminal defense lawyer and writer. He is the author, most recently, of “Three Felonies a Day: How the Feds Target the Innocent,” updated in paperback in 2011.