Carmen Ortiz Releases Totally Bogus Statement Concerning The Aaron Swartz Prosecution

by Mike Masnick
Techdirt
Jan. 18, 2013

After staying silent or issuing "no comments" for nearly a week, Carmen Ortiz, the US Attorney in charge of the prosecution against Aaron Swartz has finally released a statement about Swartz, his suicide, and her possible role in the suicide. As you might imagine, the statement is highly questionable. First, here's the statement:

January 16, 2013

STATEMENT OF UNITED STATES ATTORNEY CARMEN M. ORTIZ

REGARDING THE DEATH OF AARON SWARTZ

As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.

I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.

As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.

The statement is complete hogwash, frankly. If what she claims is true -- that they recognized "his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases" then they would not have piled on more charges in the indictment in September. The original indictment, which had four charges against Swartz, had a maximum potential jail time of 35 years. And, Ortiz's own press release trumpeted that fact:

AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

And, then in September, nine more charges were added, which brought the total possible time up to 50 years.

If Ortiz truly believed that his conduct did not warrant such "severe punishment" then she would not have trumpeted the 35 years in the first place, nor would she have piled on more charges. That would serve absolutely no purpose whatsoever if her claim here was true.

Furthermore, as Swartz's lawyers have made clear, Ortiz and her assistant, Stephen Heymann were pretty explicit to Swartz's lawyers that if he did not take their plea bargain offer, the next offer would be for more jail time, and if he still chose not to accept the offer, they'd seek at least seven years for Swartz in court. Tossing out that six month claim as if it were proof of some sort of fair dealing on Ortiz's part is flat out insulting to the intelligence of any thinking person, and downright offensive to the memory of Aaron.

How would Ortiz like it if her own child was accused on trumped up charges and threatened with 35 or more years in prison in press releases -- and then told to "settle" for just six months. I doubt she would find that to be "fair."

As Tim Lee explains, the whole "plea bargain" system is a farce, allowing prosecutors to effectively bring forth these massive "possible" punishments to effectively force someone into pleading guilty without ever going to trial. Going to trial is dangerous, because the prosecutors effectively make sure that anyone who does exercise a right to a trial is likely to get much more time in jail:

If Ortiz thought Swartz only deserved to spend 6 months in jail, why did she charge him with crimes carrying a maximum penalty of 50 years? It’s a common way of gaining leverage during plea bargaining. Had Swartz chosen to plead not guilty, the offer of six months in jail would have evaporated. Upon conviction, prosecutors likely would have sought the maximum penalty available under the law. And while the judge would have been unlikely to sentence him to the full 50 years, it’s not hard to imagine him being sentenced to 10 years.

In this hypothetical scenario, those 10 years in prison would, practically speaking, have consisted of six months for his original crime (the sentence Ortiz actually thought he deserved) plus a nine-and-a-half-year prison term for exercising his constitutional right to a trial.

As he further notes, no judge would impose a harsher sentence on someone for exercising other rights -- such as taking the Fifth, hiring a lawyer or confronting an accuser. Yet, if you demand your right to a trial, the US Attorneys have effectively rigged the system so that defendants are punished. And that gives them immense power.

Thanks in part to this kind of coercion, more than 90 percent of defendants waive their right to a jury trial. For the majority of defendants, then, the plea bargaining process is the justice system. As a result, prosecutors wield an immense amount of power with very little accountability.

It’s not surprising that Ortiz doesn’t see anything wrong with this system. Powerful people rarely see their own power as problematic. But the rest of us should be outraged—not just by Ortiz’s conduct, but by a system that treats thousands of defendants less famous than Swartz the same way.

This is not a new problem. A year and a half ago, the NY Times had a feature article highlighting this very problem, which it calls "the trial penalty."

Also, while Ortiz claims that the final sentence "would have been up to the judge" and even suggests that since defense counsel could have recommended just probation, the judge might have been more lenient, she must know that it is quite rare for judges to issue sentences more lenient than what prosecutors put forth from a plea bargain. In fact, judges will often issue harsher sentences than what the prosecutors "agreed" to with the defendant, since the judge is not bound to the terms of the agreement specifically.

Many countries do not allow plea bargaining, because they recognize how it can be used for coercion. Meanwhile, studies have shown that plea bargains quite frequently can lead to innocent people accepting a deal recognizing that it's much better to do that than risk a trial where the punishment would be much, much higher. Yes, more innocent people do stand up against such offers than guilty ones (according to the same study), but a large number of innocent people feel compelled to just take the deal.

Basically, this whole system is wide open to abuse, and it's clear from Ortiz's actions that she, too, was abusing the system in this manner: pushing for super high possible jail time as a huge and scary weapon to try to pressure Swartz into accepting a lower rate -- but also making him a convicted felon. Using the plea offer as some sort of "proof" of reasonableness is really quite incredible and despicable. It's like pointing a gun at someone, telling them that you're planning to shoot them... and then saying that if they agree to confess to something they don't believe, you'll just pinch them instead. And then, when they complain, you say "well, clearly, I just thought the pinch was appropriate." That's clearly a bullshit explanation. Ortiz was better off with "no comment" than trying to pass this off as a reasonable claim.