The Swartz suicide and the sick culture of the Justice Dept.

Harvey headshotRepublished 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. Continue reading “The Swartz suicide and the sick culture of the Justice Dept.”


The Globe turns up the heat on Carmen Ortiz

Given The Boston Globe’s past favorable coverage of U.S. Attorney Carmen Ortiz, I’m heartened to see how aggressively the paper is covering her conduct in the investigation of the late Internet activist Aaron Swartz.

Screen Shot 2013-01-16 at 9.50.45 AMToday the Globe fronts a story by Shelley Murphy about some repulsive tweets posted by Ortiz’s husband, IBM executive Thomas Dolan, in which he defended his wife and lashed out against Swartz’s grieving parents. Dolan’s Twitter feed has since disappeared, but BuzzFeed posted what I can only hope is the worst of them Tuesday.

Murphy’s story follows an angry piece by Globe columnist Kevin Cullen on Tuesday. Cullen wrote:

The argument about whether prosecutors should have been insisting that Swartz, who had written openly and movingly about his struggle with depression, serve at least six months in prison is not an academic question. It is a question about proportionality and humanity, and on both fronts the office of US Attorney Carmen Ortiz and the prosecutors who handled this case, Steve Heymann and Scott Garland, failed miserably.

For too long Ortiz has led a charmed existence, using and abusing the power of her office in order to burnish her law-and-order credentials. In 2011 The Boston Globe Magazine went so far as to name her its “Bostonian of the Year.”

Ortiz is not to blame for the suicide of a young man who had long struggled with depression. Nevertheless, her insistence that he serve prison time was absurd given the nature of his offense. Now we’ve lost a brilliant, creative thinker whose greatest contributions were yet to come.

Correction: Updated to fix Thomas Dolan’s name.

Kevin Cullen’s nightmare in South Boston

With our television set broken, I’ve been cruising around for the best video coverage of Whitey Bulger. I think I’ve done a lot better with my laptop than I would have in front of the TV.

Lots of good stuff, but this one is particularly must-watch: Boston Globe columnist Kevin Cullen and former Globe reporter Dick Lehr talking about the FBI warning Cullen that Bulger might walk into his living room and “blow [his] brains out” around the time the Globe was revealing Bulger’s corrupt relationship with that agency.

“It wasn’t exactly an idle threat,” Cullen says. “I lived in South Boston. I was well-known in that community, especially by people of Mr. Bulger’s ilk.”

Nice guys finish first

Paul Levy, president and CEO of Beth Israel Deaconess Medical Center, is one of the Boston area’s great managers and leaders of the past generation. So I’m not surprised — as Boston Globe columnist Kevin Cullen reports — that he earned a standing ovation when he suggested that high-paid people at the hospital sacrifice in order to save low-paid jobs.

Gaddafi to Israel: Drop dead

In the endlessly depressing category of “you can’t make this stuff up,” the New York Times today runs an op-ed by erstwhile Boston Globe columnist Muammar Gaddafi, the terrorist-coddling, human rights-abusing dictator of Libya.

Gaddafi has a solution to the Israeli-Palestinian conflict: wipe Israel off the map. Funny, but I somehow knew he was going to say that.

The Globe’s Kevin Cullen weighs in usefully on Gaddafi today, and Universal Hub wraps up the whole miserable affair.

Note: Gaddafi, Qaddafi and Khadafy are all the same person. I’m going with Gaddafi because that’s how the Globe recently spelled it.

Maybe he meant the other confederacy

Because I’m feeling charitable this evening, I will assume that Boston Globe columnist Kevin Cullen knew better when he identified Delaware as a former Confederate state. After all, Adam Gaffin missed it, too. But not Ron Newman. (Thanks to Media Nation reader B.C.)

Rakan Hassan’s tragic end

You don’t need me to tell you what a heartbreaking story Kevin Cullen offers us in today’s Boston Globe on the death of Rakan Hassan. I’ll just add this: the original series on Rakan, by Cullen and photographer Michele McDonald, was so moving, so deeply reported and deftly executed, that I’ve exposed several classes of journalism students to it.

Keeping the heat on the heat

In case you missed it, Kevin Cullen has a first-rate column in today’s Boston Globe on the death of David Woodman following last month’s Celtics victory. Cullen speaks with a fan named John Rufo, who remains incredulous at the aggressive show of force by Boston police at the celebration. Cullen writes:

Now, you can dress this up any way you want: that Woodman had a preexisting heart condition, that it was an unfortunate accident, that it was any number of things. But the bottom line is David Woodman is dead and he died as a result of being taken into custody by some cops who didn’t like some kid mouthing off to them.

You will never convince Jim Rufo that David Woodman is dead for any other reason than that the show of force put on by police the night the Celtics won their 17th championship was something of a self-fulfilling prophecy: that if you hype police officers up for battle, if you send them into a crowd of civilians with weapons, you are asking for trouble.

Good for Cullen for keeping the heat on the police.

Making nicey-nice

Kevin Cullen’s column on the Celtics got a lot less interesting — and a lot more politically correct — between yesterday and this morning. Media Nation commenters here and here explain. What is wrong with the Globe’s editors?

Cullen on the Celtics

As Boston Globe columnist Kevin Cullen has been much in the news of late, you may be interested to know that he’s written a Web-only piece on the Celtics.

It’s a smart, historically minded take on how the Celtics morphed from the most racially progressive team in the NBA in the 1960s; to a team so dominated by white stars in the 1980s that it was spurned by African-American youths in Boston (despite the presence of coach K.C. Jones); to the current incarnation, a team that routinely puts five black players on the floor.

Go Celtics!