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Aaron Swartz, Carmen Ortiz and the meaning of justice

Aaron Swartz in January 2012. Photo (cc) by Daniel J. Sieradski. For details, click on image.

Aaron Swartz in January 2012

An earlier version of this commentary was published on Sunday at The Huffington Post.

The suicide of Internet activist Aaron Swartz has prompted a wave of revulsion directed at U.S. Attorney Carmen Ortiz, who was seeking to put him in prison for 35 years on charges that he illegally downloaded millions of academic articles.

Swartz, 26, who helped develop the RSS standard and was a co-founder of Reddit, was “driven to the edge by what a decent society would only call bullying,” wrote his friend and lawyer Lawrence Lessig. “I get wrong,” Lessig added. “But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”

By Monday morning, more than 11,000 people had signed an online petition asking President Obama to remove Ortiz. Swartz’s family released a statement that said in part: “Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.”

Ortiz’s vindictiveness toward Swartz may have seemed shocking given that even the victim of Swartz’s alleged offense — the academic publisher JSTOR — did not wish to press charges. But it was no surprise to those of us who have been observing Ortiz’s official conduct as the top federal prosecutor in Boston.

Last July I singled out Ortiz as the lead villain in the 2012 Muzzle Awards, an annual feature I’ve been writing for the Phoenix newspapers of Boston, Providence and Portland since 1998. The reason: her prosecution of Tarek Mehanna, a Boston-area pharmacist who had acted as a propagandist for Al Qaeda.

Mehanna was sentenced to prison for 17 years — not because of what he did, but because of what he said, wrote and translated. Though Mehanna had once unsuccessfully sought training at a jihadi terrorist camp in Yemen, the government’s case was based almost entirely on activities that were, or should have been, protected by the First Amendment.

Make no mistake: Mehanna’s propaganda was “brutal, disgusting and unambiguously supportive of Islamic insurgencies in Iraq, Afghanistan and Somalia,” Yale political scientist Andrew March wrote in The New York Times. But as March, the ACLU and others pointed out in defense of Mehanna, the more loathsome the speech, the more it deserves protection under the Constitution.

In addition to the prosecution of Tarek Mehanna and the persecution of Aaron Swartz, there is the matter of Sal DiMasi, a former speaker of the Massachusetts House who is now serving time in federal prison on political corruption charges brought by Ortiz.

Last June DiMasi revealed he had advanced tongue cancer — and he accused federal prison authorities of ignoring his pleas for medical care while he was shuttled back and forth to Boston so that he could be questioned about a patronage scandal Ortiz’s office was investigating. It would be a stretch to connect Ortiz directly with DiMasi’s health woes. She is, nevertheless, a key player in a system that could transform DiMasi’s prison sentence into a death sentence.

Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz’s death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate pointed out in his 2009 book, “Three Felonies a Day: How the Feds Target the Innocent,” federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.

“Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career,” wrote Silverglate, a friend and occasional collaborator. “Whole families have been devastated, as have myriad relationships and entire companies.”

Ortiz may now find that her willingness to use those vast powers against Swartz could have a harmful effect on her future.

As a Latina and as a tough law-and-order Democrat, she has been seen as a hot political property in Massachusetts. In 2011 The Boston Globe Magazine named her its “Bostonian of the Year.” She recently told the Boston Herald she was not interested in running for either the U.S. Senate or governor. But that doesn’t mean she couldn’t be persuaded. Now, though, she may be regarded as damaged goods.

Those who are mourning the death of Aaron Swartz should keep in mind that he had long struggled with depression. Blaming his suicide on Carmen Ortiz is unfair.

Nevertheless, the case she was pursuing against Swartz was wildly disproportionate, and illustrated much that is wrong with our system of justice. Nothing good can come from his death. But at the very least it should prompt consideration of why such brutality has become a routine part of the American system of justice.

Update: MIT, where Swartz allegedly downloaded the JSTOR articles, has announced an internal investigation, reports Evan Allen of The Boston Globe. Lauren Landry of BostInno has statements from MIT president Rafael Reif and from JSTOR.

Photo (cc) by Daniel J. Sieradski via Wikimedia Commons and published here under a Creative Commons license. Some rights reserved.

Storified Sal

We’re learning to use Storify today in my Reinventing the News class. Here is one I assembled on the news that former Massachusetts House Speaker Sal DiMasi will testify before a federal grand jury in Worcester.

[View the story “Sal DiMasi returns” on Storify]

DiMasi’s conviction and the Boston Globe

It’s an observation that has become cliché, but it needs to be made: Without robust local journalism, it is nearly impossible to hold government accountable. Yesterday’s conviction of former Massachusetts House Speaker Sal DiMasi on federal corruption charges would likely not have happened without the Boston Globe.

As best as I can tell, the first article was this one, published on May 23, 2008, and written by staff reporter Andrea Estes — with an assist by Steve Kurkjian, a legendary investigative reporter who is still working despite being allegedly retired. Headlined “IBM, Cognos to refund state $13m,” it contained the seeds from which grew a mighty oak:

House Speaker Salvatore F. DiMasi had taken a strong interest in the contract last year. The former head of the Information Technology Division told state officials that the middleman in the deal, former Cognos executive Joseph Lally, had bragged about his relationship with DiMasi and suggested that DiMasi wanted the contract to go to Cognos. Cognos also contributed generously over several years to a charitable golf tournament hosted by DiMasi at his home course, the Ipswich Country Club.

The impetus for that first story came from Inspector General Gregory Sullivan, who found that the Cognos contract violated state bidding rules. But the matter may have gone no further if the Globe had not kept pushing.

Two months later, Estes and Kurkjian reported, “Software company Cognos ULC hired House Speaker Salvatore F. DiMasi’s law associate, and a key Cognos sales agent hired DiMasi’s personal accountant during a period when the firm was winning millions of dollars in state contracts.” The rest is history.

I’ll admit that I was skeptical of the DiMasi prosecution. I didn’t like it that his downfall began shortly after he saved the state from Gov. Deval Patrick’s proposal to build three casinos — not that I’m suggesting a relationship between those two actions.

I also didn’t like the feds’ reliance on the “honest services” statute, which US Supreme Court Justice Antonin Scalia has observed is so broad it could outlaw “a mayor’s attempt to use the prestige of his office to obtain a restaurant table without a reservation.” (Although I should note that the court narrowed the law considerably in 2010.)

As it turned out, though, the evidence against DiMasi was strong; nor did he offer much of a defense.

This is journalism in the public interest, and no one can do it except a large, well-funded news organization with lots of resources. It doesn’t have to be a newspaper. But in 2011, very few news organizations other than newspapers are capable of such vitally important work.

Update: After doing some additional research, I now think this Estes article from March 10, 2008, was the first to link DiMasi and Cognos.

Photo (cc) by Luciof and republished here under a Creative Commons license. Some rights reserved.

The trouble with federal plea bargains

My friend and occasional collaborator Harvey Silverglate has a terrific commentary in the Boston Globe on the plea deal reached by federal prosecutors with Joseph Lally in the corruption case against former Massachusetts House Speaker Sal DiMasi.

Lally, a former associate of DiMasi’s, received quite a goody bag in return for his plea: a two- to three-year prison sentence, compared to the nine he might have gotten if he’d gone to trial and been found guilty, as well as the right to keep his home and $30,000 in savings.

“But leniency comes at a price,” Silverglate observes. “Lally has agreed to provide testimony that will help prosecutors. The dog gets the bone only if it performs the trick.”

Here’s what I wrote in the Guardian about Silverglate’s book, “Three Felonies a Day,” which painstakingly documents numerous examples of overreach and abuse by federal prosecutors.

As the case against DiMasi continues to unfold, I’ll be watching for objective, documentary evidence regarding his guilt or innocence.

Photo (cc) by Amy and republished here under a Creative Commons license. Some rights reserved.

Supreme Court to take up “honest services” law

The New York Times reports that the U.S. Supreme Court will take up the constitutionality of the “honest services” law, a vague federal statute that creates all kinds of opportunities for prosecutorial mischief.

Among other things, it is the root of one of the principal accusations against former Massachusetts House speaker Sal DiMasi, who faces federal charges stemming from favors he received from well-connected friends.

Abuse of the honest-services law is a major theme of friend of Media Nation Harvey Silverglate‘s book “Three Felonies a Day,” in which Silverglate argues that such laws are used to transform less-than-admirable conduct into federal crimes.

Or, as Supreme Court Justice Antonin Scalia puts it in the Times article, the law “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.”

Fighting back against dubious prosecutions

In my latest for the Guardian, I examine friend of Media Nation Harvey Silverglate‘s new book, “Three Felonies a Day: How the Feds Target the Innocent.” And I point out that the themes Silverglate explores can be seen in some dubious prosecutions of recent vintage — including that of former Massachusetts House speaker Sal DiMasi, now fighting for the right to be represented by the lawyer of his choice.

The DiMasi indictment

Three quick points on the indictment of former House speaker Sal DiMasi and three associates:

  • The Boston Globe deserves an enormous amount of credit for its dogged reporting on DiMasi, precisely the sort of public-interest journalism that’s endangered by the meltdown of the newspaper business. Given current trends, life will be easier for future DiMasis, and that’s a shame.
  • The prosecution’s case against DiMasi will never look stronger than it does today, and we should wait to see what develops. But the story that prosecutors tell is a sordid one. My personal favorite is the $25,000 DiMasi allegedly demanded and got following a bookkeeping error on the part of the co-defendants.
  • Never forget that DiMasi’s leadership saved the state, at least temporarily, from the evils of casino gambling. With the House now led by Rep. Robert DeLeo, D-Winthrop, who reportedly wants slot machines at dog tracks (although his support may be waning), and the Senate led by Sen. Therese “Ka-ching!” Murray, D-Plymouth, there are darker days ahead.

A wistful farewell to Sal DiMasi

Many of you will miss Sal DiMasi before too long. Not me. I miss him already.

Mr. Speaker, as Boston Globe columnist Yvonne Abraham notes while kicking him to the side of the curb, saved us from casino gambling, pushed the idea of a higher gas tax as an alternative to toll hikes, was a stalwart on preserving same-sex marriage and much more.

We are almost certainly going to get less good government with DiMasi’s successor, whoever that may be. Do you really think we’re going to get cleaner government? Please.

Look — the Globe did terrific work on exposing DiMasi’s less-than-wonderful side, and prosecutors can hardly ignore the possibility of criminal wrongdoing. I understand that. But we are going to miss him.

More: The casino forces are celebrating already, as you can see from this post at Casino Gambling Web. It begins with a falsehood — “Governor Duval [sic] Patrick ran for office in Massachusetts on a platform of expanded casino gambling” — and ends with this:

Lobbyists who have already been working hard to have casino legislation are relieved that a major roadblock is now out of their way. When DiMasi won re-election, casino proponents felt deflated, but now that door has swung wide open.

Look out below.

Still more: Jon Keller has similar thoughts.

Patrick’s snowstorm appointment

Gov. Deval Patrick must be extremely proud of appointing Joseph Aloisi as secretary of transportation. Otherwise, why would he have announced it in the midst of a snowstorm on the Friday before Christmas?

Patrick manages to work in the words “reforming” and “reform” in discussing Aloisi, which is exactly the first thought that springs to my mind upon learning that Aloisi collected $3 million in legal fees from the Big Dig.

At Blue Mass Group, David Kravitz writes:

[W]hen it’s the bottom of the ninth, two outs, two on, and the home team down by two (which strikes me as a fair description of where we are right now), who do you want at bat? Do you want a .205 hitter with a record of not many extra-base hits and a lot of strikeouts? ‘Cause that’s how Aloisi strikes me, based on his history with Kerasiotes, Amorello, and all the rest of it.

I think Kravitz is being kind, but we’ll see. What worries me is that House Speaker Sal DiMasi may be too weakened by the ongoing corruption investgation to act as a counterbalance.

DiMasi saved Patrick (and us) from casinos, and he’s intent on saving us from massive toll hikes as well. But he’s not going to be able to do that if he’s forced to spend most of his time huddled with lawyers.

Let’s hear it for DiMasi (again)

I shouldn’t be blogging, because I’ve got an interview to prepare for. But I didn’t want the shift away from a toll hike and toward an increase in the gasoline tax to get by me without saying anything.

This could turn out to have been choreographed. But assuming everything is as it appears on the surface, it’s hard not to notice that, for the second time, House Speaker Sal DiMasi — invariably described as “embattled” these days — has stood up on the right side of a major public policy issue, and Gov. Deval Patrick hasn’t.

Without DiMasi, we might very well be sliding toward Patrick’s disastrous proposal to build three gambling casinos. And Patrick is reportedly still reluctant to support “broad-based tax increases,” as his spokesman, Kyle Sullivan, puts it.

If DiMasi’s enemies succeed in driving him from office, where is that going to leave us?

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