Did the Justice System Fail Aaron Swartz?
Two of Aaron Swartz's attorneys, one current and one former, say that the Government wanted Aaron Swartz to plead guilty to all 13 counts in the Superseding Indictment, and it would recommend a sentence of six months in confinement.
Aaron's first attorney, Andrew Good, also says he told the Government Aaron was a suicide risk.
[Good]said he told federal prosecutors in Massachusetts that Swartz was a suicide risk. “Their response was, put him in jail, he’ll be safe there,” Good said.
Andrew Good knew Aaron a long time. He represented Aaron in the 2009 PACER investigation, according to Aaron's FBI file which Aaron posted on his website on October 5, 2009.
April 14, Manassas, VA
SA [REACTED] spoke to SWARTZ, at telephone number […], and explained that the FBI is looking for information on how SWARTZ was able to compromise the PACER system so that the US COURTS could implement repairs to the system and get PACER running again. SWARTZ stated that he would have to talk to his attorney first and would call SA [REDACTED] back at a later time.
April 16, Manassas, VA:
On 04/16/2009, SA [REDACTED] returned a telephone call to ANDREW GOOD, (617) […]. GOOD is AARON SWARTZ’s attorney in Boston, MA. GOOD wanted assurance that if SWARTZ was interviewed, what he said would not be used to jeopardize him. SA [REDACTED] explained that assurance could not be given but that we were in an information gathering phase. GOOD refused the interview without the assurance.
April 20, Washington Field Office:
CASE ID #: 288A-WF-238943 (Closed)
CCIPS Attorney [REDACTED] closed the office’s case. Based on the CCIPS closing, Washington Field is closing this case as of this communication.
According to Elliot Peters, Aaron's most recent attorney, prosecutors told him two days before Aaron died that he would have to plead guilty to all 13 counts and accept a jail sentence of six months to avoid trial. .
Wednesday, two days before Aaron killed himself, Peters says he brought up a deal again with prosecutors. Peters said prosecutors made it clear their position had not changed: they wanted Swartz to plead to 13 counts and the government would seek six months of prison time or some “slightly lesser” amount of time. Elliot said they rejected the deal and he believed they would win the case at trial, which was scheduled to begin in April.
The Boston Globe interviewed all three of Aaron's attorneys. What the defense was seeking:
They had offered to accept a deferred prosecution or probation, so that if Swartz pulled a stunt like that again, he would end up in prison.
Marty Weinberg, Aaron's second lawyer told the Boston Globe:
Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. He said JSTOR signed off on it, but MIT would not. “There were subsets of the MIT community who were profoundly in support of Aaron,” Weinberg said. That support did not override institutional interests.
In June, 2011, days after being charged in federal court, Aaron and Andrew Good had turned over the hard drives with the downloaded Jstor data to the Secret Service at Andrew’s office. In an 8 page letter AUSA Heymann wrote to Good (via PACER , Document 20-1, filed 09/27/11) outlining the discovery in the case, on the topic of Aaron's return of the drives, far from being satisfied, Heymann responds with a veiled threat to Good:
Your involvement in the delivery of four hard drives containing documents, records and data obtained from JSTOR creates potential issues in this case under the Rules of Professional Conduct, as I am sure you are aware.
While the prosecutor proposed a stipulation to get around the issue, this strikes me as another example of his “my way or the highway” approach.
According to attorney Peters,
“There was such rigidity with the people we were dealing with,” Peters said. “I couldn’t find anyone in that office to talk about proportionality and humanity. It was driven by a desire to turn this into a significant case, so that some prosecutor could put it in his portfolio.”
Putting the validity of the charges and the strength of Aaron’s defense aside for the moment, I think the timing of events in the case, along with the new details about the plea negotiations, raises the issue of whether the Government’s response, when it realized Aaron would not take a plea, was to punish him further by ramping up the charges and filing the Superseding Indictment. The superseding indictment didn’t add new crimes, it just split the offenses into more counts, charging a separate count for the various times he accessed the network or downloaded material. It’s doubtful the added counts would have changed Aaron’s sentencing guidelines by much. But what psychological message did it send, – especially to a defendant known to be at risk of suicide?
The federal timeline, according to the docket on PACER:
- 7/14/11 First Indictment filed
- 7/19/11 Arrest warrant, Aaron’s first court appearance, Andrew Good enters appearance as counsel. Aaron is released on a $100,000 personal surety bond (signed by Aaron and his parents. No money was required, it’s a promise to pay if he fails to appear).
- 8/11/11 Prosecutor sends Good a letter outlining discovery, in which he warns Good of potential conflict and suggests a work-around. Thereafter, the parties file numerous pleadings arguing about discovery and the need for a protective order.
- 9/24/11: Good files another motion to compel discovery
- 10/11/11: Hearing on discovery motions and motion for protective order (Gov’t wants to restrict Aaron’s ability to physically have copies of some discovery and wants his lawyers to review data records at Secret Service office rather than having their own copy. ) Judge asks for more briefs.
- 10/25/11: Marty Weinberg enters appearance as Aaron's new lawyer (Good moves to withdraw 10/27)
- 11/2/11: Second hearing on discovery motions and protective order. Judge orders a third hearing for 11/8
- 11/8/11: Third hearing on discovery and protective order. Parties tell the court they've agreed on terms for a protective order and will submit it soon
- 11/30/11: Judge enters protective order
- 12/14/11: Hearing on discovery motions, parties say they are trying to work it out, another hearing set for January, 2012
- 2/1/12: Aaron seeks and gets bond modification to move to New York
- 5/22/12: Status hearing, parties say discovery isn't complete, ask for hearing in July.
- 6/1/12: Defense files motion for discovery of additional items the parties failed to agree on
- 6/22/12: Government files motion opposing Aaron's requested discovery
- 7/26/12: Hearing on discovery motions, court hears argument, takes matter under advisement
- 8/1/12: Judge rules on defense discovery motions, granting a portion and denying the rest; Court sets discovery cutoff for 8/15, defense motions due 9/28, Government responses due 10/30.
- 8/15/12: Hearing, judge sets trial schedule
Counsel anticipate trial lasting 2 weeks. Jury Trial set for 2/4/2013 09:00 AM in Courtroom 4 before Judge Nathaniel M. Gorton. Government's initial expert disclosures by 11/19/12, Defendant's by 12/10/12, and additional experts by 12/31/12. Motions in limine due by 1/14/2013; oppositions to Motions in Limine, Exhibit/Witness Lists, and proposed voir dire due by 1/21/2013; objections to exhibit/witness lists, proposed jury instructions, and proposed verdict form due by 1/21/2013.
- 9/12/12: Government files Superseding Indictment
- 9/14/12: Defense gets extension of time to file motions
- 9/24/12: Aaron pleads not guilty to Superseding Indictment
- 10/5/12: Defense files 5 motions to suppress and a motion to dismiss the wire fraud counts
- 10/31/12: Local lawyer enters appearance, Marty Weinberg withdraws; 11/8, Elliot Peters and two other lawyers from Keker and Van Nest in SF enter appearance
- 11/16/12: Government files responses to suppression motions and motion to dismiss wire fraud counts
- 12/3/12: Defense asks to file sealed reply to government's response to suppression motions and motion to dismiss and asks for trial continuance and extension of date for expert witness disclosure. Government objects.
- 12/14/12: Court holds hearing (defense lawyers appear by phone); Court sets hearing on suppression motions for 1/25/2013 at 1:00 p.m. Extends expert witness disclosure to 1/25/2013. Continues Trial to 4/1/2013
- 1/11/13: Defense files supplement to motion to suppress regarding recently disclosed email from Secret Service Agent to prosecutor contradicting government's earlier assertion about delay in seeking and executing search warrant. Government files supplement with its contrary position asserting that the new email is no big deal.
- 1/11/13: Aaron commits suicide.
There's another reason I've listed all these dates. For a defendant, even a mentally stable one, the interminable delays, particularly over seemingly minor issues like discovery disputes, can be torturous. For many, there is a cumulative buildup of stress and anxiety over the uncertainty of the case outcome and frustration that the case is dominating all aspects of their lives. If they have retained counsel, the legal bills keep mounting. They just want the case over with. Many want to give up and take the plea being offered, fair or not.
The threat of the loss of liberty is huge for every defendant. It affects everything you do, every day, and all your relationships. You can’t make plans for the future. Your friends and loved ones can empathize, but they can’t feel what you are feeling. You can’t just say, “I won’t think about it today.” It’s a threat that lurks in the recesses of your mind all the time. For someone like Aaron, with a history of depression, who is unable to see any light at the end of the tunnel, it can become unbearable. According to Elliot Peters, the last Government refusal to budge off its insistence of a felony plea and jail time was Wednesday. Friday, Aaron was dead.
It also seems the Court was aware Aaron had medical and/or psychiatric issues. On the order setting bond conditions, which contains a checklist with various options the Judge can put a check mark next to, such as drug testing, no drug use or excessive use of alcohol, stay away from victims, no guns, surrender passport, travel restrictions and the like, the judge checked the box for "medical and psychiatric treatment", adding a handwritten note "as directed." If the judge wasn't aware of any such issues, I don’t think that box would be checked. How would the judge know? If the lawyers didn’t raise it, then it most likely came from the pre-trial services report, which makes a recommendation to the judge as to the amount of bail and bail conditions. (Pre-trial services interviews the defendant after arrest, does record checks and then prepares a report for the Judge.)
While in Boston, Aaron was required to report to Pre-Trial Services every other week. On Feb. 7, 2012, when his motion to move to New York was granted, supervision was transferred to Pre-Trial Services in New York, presumably Brooklyn where he would reside. He was still under the supervision of Pre-Trial Services in New York at the time of his death.
Many people believe the Government should never have charged Aaron in the first place – that it should have recognized his genius, his youth, the victim’s request to drop the matter and his lack of financial motive in his acts. Others will say Aaron was being unrealistic, that a six month offer to end a multi-count federal indictment carrying a potential sentence of decades in prison, was a better offer than most defendants get (unless they cooperate), and guilty or not, he should have taken it because the downside was too great if he lost.
I think the Government’s over-reaching here was not so much in the initial charge, but in the hardball it played when it realized Aaron wouldn’t cave in. Unfortunately, this is not an atypical prosecutorial response – it’s actually fairly routine. What makes this case different is that, while we don’t know for sure, it seems like the Government filed the superseding indictment for the purpose of racheting up the pressure to plead guilty, ignoring the warning that he was a suicide risk. If it wanted to send the message that the more he resisted, the worse things would get, it succeeded -- Aaron is dead, it can’t get worse than that for him. But it seems as unnecessary as using a hammer to kill an ant.
As I said yesterday, I hope the Justice Department follows the lead of MIT and conducts a review as to the prosecutor’s actions. But the review shouldn’t be done by the U.S. Attorney for Massachusetts – that’s like asking the fox to guard the hen house. It should be an outside or independent review. I’d like to see a review that examines the government’s use of the “hammer” nationally. I think people would be shocked at the number of cases in which the prosecutor tells the defense:
- Take the deal now, or the offers will only get worse
- Take the deal now, or we’ll supersede with more charges. (In drug cases, it is often, plead now, or we’ll file an enhancement notice for your prior drug conviction and double the mandatory minimum sentence from 10 years to 20 years.)
- This offer is only open until the motions due date. If you file motions, all offers are withdrawn and there will be no future offers.
- If you don’t plead before the pre-trial motions hearing, you are going to trial.
- No offer unless you cooperate
- Here’s the offer, but you have to waive your right to appeal
- Here’s the offer, but you have to agree to a sentence of X and you can’t request a lesser or non-guideline sentence.
- If you take the offer, we’ll agree not to prosecute your wife (or husband or child or parent). If you don’t, they are fair game and we aren’t threatening them, but we think we have a good case against them.
While we have the best criminal justice system in the world, it is not without significant flaws. The Aaron Swartz case may be representative of some of them. His family, and the public, have a right to know. Was this a case of a prosecutor merely doing things by the book when faced with a defendant he viewed as stubbornly refusing to accept appropriate responsibility for his criminal acts, or was it a case of a prosecutor’s callous disregard for the individual circumstances of a defendant with known psychological problems and his stubborn refusal to acknowledge and take into account that this was a defendant whose intent was not to defraud but to further his view of social justice?
Aaron Swartz's funeral was held today in Chicago. RIP Aaron.
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