U.S. Attorney Carmen Ortiz Speaks About Aaron Swartz

Mass. U.S. Attorney Carmen Ortiz answered some questions at a news conference about Aaron Swartz yesterday. She acknowledged the office knew he had mental health issues at his arraignment, 18 months ago.

Ortiz said “some issues about his mental health came up” about 18 months ago, but they were addressed during his arraignment.

As I wrote here, they were addressed by the Court ordering "medical or psychiatric treatment as directed" as a condition of bond.

But Aaron's father today, in an interview with the Los Angeles Times, denies Aaron had a longstanding problem with depression. [More...]

Bob Swartz said his son was innocent under the law and dismissed the notion that his son had a depressive personality. "He had never been diagnosed as having depression; he was never on medication for having depression," Swartz said.

Aaron Swartz's mother had been hospitalized in December 2011 after having a bowel obstruction and going into septic shock, Bob Swartz said. She spent several weeks in a coma, four months in intensive care, and two more months in the hospital. "So the notion, the narrative that people are going to say -- is that he’s somebody who just has depression -- is just wrong. You’d be depressed too if you were under a 13-count federal indictment and you go see your mother, who’s in a coma."

Wednesday, Ortiz issued a statement defending her office's handling of the Aaron Swartz case. After expressing her sympathy to those who loved Aaron, she wrote:

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.

What she doesn't say is why her office insisted on a felony plea, which Aaron's lawyers have said was the stumbling block to a deal. If the Government was going to request a sentence of less than one year, and agree to allow his lawyers to request probation, why not agree to a misdemeanor?

Federal misdemeanors are defined as crimes carrying a penalty of up to a year in prison. If she was willing to recommend four to six months, and not preclude his attorneys from asking for probation, why not let him plead to a misdemeanor computer fraud offense, like 18 USC 1030 (a)(2) which applies to:

(a)(2) [Whoever] intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains-- [c] information from any protected computer;

Especially since Ortiz admits the Government had no evidence "he committed his acts for personal financial gain", why wouldn't the equities of the situation make that a just result?

The penalty for a violation of this section:

(2) (A) except as provided in subparagraph (B), a fine under this title or imprisonment for not more than one year, or both, in the case of an offense under subsection (a)(2), (a)(3), or (a)(6) of this section which does not occur after a conviction for another offense under this section, or an attempt to commit an offense punishable under this subparagraph;

Subsection B bumps the crime to a felony in the following instances:

(i) the offense was committed for purposes of commercial advantage or private financial gain;
(ii) the offense was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State; or
(iii) the value of the information obtained exceeds $ 5,000.

It seems to me that the Government could have stipulated damages were too speculative to be readily provable that they exceeded $5,000, and foregone the felony. Especially since JStor, the victim whose material was downloaded, said at the time of Aaron's arrest it was not interested in prosecuting Aaron:

We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office. It was the government’s decision whether to prosecute, not JSTOR’s. As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter.

Also, why were prosecutors insisting on a plea to all charges, rather than just one? The sentencing guidelines encompass all relevant conduct and in the event of a plea, the Government wasn't objecting to a sentence within the range of one misdemeanor count. Here is AG Holder's 2010 Memo on Charging and Sentencing ( which revoked the 2003 memo of John Ashcroft and memos by Deputy AG James Comey.) Holder invokes the phrase “individualized assessment” four times and “individualized justice” once in the memo. He also says, “equal justice depends on individualized justice, and smart law enforcement demands it.” And, Holder points out:

[C]harges should not be filed simply to exert leverage to induce a plea"

Swartz' attorney Elliot Peters told the LA Times today:

[the Prosecutor] said Swartz could either plead guilty to 13 felonies and agree to a four-month prison sentence, or plead guilty to 13 felonies on the condition that prosecutors ask a judge for a six-month sentence, and maybe Swartz could get less.

If the case went to trial and Swartz were convicted, Peters said, prosecutors said he would face a sentence greater than seven years. "I said to them, 'How about a misdemeanor and probation?' And they said, ‘We will never not be seeking a prison sentence in this case.'"

Who to believe on the plea negotiations? Three nationally acclaimed defense lawyers who represented Swartz at different stages over the last 18 months, all of whom describe similar stances of the prosecutor, or a prosecutor now under fire? Based on my experience, and because I know two of the three defense counsel, I believe the defense. But I suspect the answer can also be found in the e-mail exchanges between the defense lawyers and prosecutors, although unless there's a lawsuit or independent investigation, I don't expect they will all come to light.

Also weighing in: Retired Mass. U.S. District Court Judge Nancy Gertner, who says Aaron should never have been charged. On the other side, law Professor Orin Kerr has two posts up, one defending the charges and one on prosecutorial discretion. While I view the validity of the charges differently than Orin, I appreciate his thoughts on the need for reform of the statute contained in his second post, and the need for a greater margin to jump the offense from a misdemeanor to a felony.

Orin calls for the felony threshold to be made higher. He knows a lot more about the computer fraud statute than I (or most lawyers) do, but I think it's not just the amount of the threshold that's the problem, but that the concept of "value" in these cases is too vague and speculative to be used at all as a distinguishing feature. Orin believes the $5,000. threshold would easily have been met in Aaron's case, based on a 6th Circuit case, U.S. v. Batti. Batti involved a videotape, where the court used the cost of production as the measure of value in finding the $5,000. threshold had been met. But the Batti court also noted the absence of a statutory definition of the term “value” in this context and an absence of interpretive case law.

Section 1030 of Title 18 contains no definition of the term “value,” as used in 18 U.S.C. § 1030[c](2)(B)(iii), however, and § 1030 does not otherwise indicate how a court should determine whether the “value of the information obtained exceeds $5,000.” 18 U.S.C. § 1030[c](2)(B)(iii).
And it left a lot of wiggle-room:

We hold that the district court's use of the cost of production here was a reasonable, and therefore permissible, method by which to determine the value of the information obtained by Batti. We recognize, however, that, given the broad nature of the statute, violations of § 1030(a)(2)[c] may arise in many different contexts. We therefore express no opinion regarding either the propriety of other methods by which to calculate the value of information obtained under 18 U.S.C. § 1030(a)[c] and [c](2)(B)(iii) or the applicability of the method we approve today to dissimilar factual circumstances.

It also referred to the method of production being a reasonable method of determining value "whether this determination is being made by the district court in a bench trial or by a jury." But what if there's no trial and the parties stipulate to a different measure, or stipulate the case represents an instance where proving value is too speculative? The Batti court didn't say the judge in that instance should substitute his own view for that of the parties, if the parties' view was a reasaonable one and there was no definitive answer.

Given the paucity of case law on value, I don't see why the prosecutors in Aaron's case couldn't justify dismissing the felony charges in the Indictment and filing a misdemeanor information. I think they could have, they just didn't want to.

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  • Display: Sort:
    (The real*) Bruce Perens... (5.00 / 2) (#16)
    by unitron on Sat Jan 19, 2013 at 01:41:28 AM EST
    ...has some thoughts about Aaron, and the surrounding issues.

    *(inside joke for fellow Slashdotters)

    The US Attorney continues to display (5.00 / 1) (#20)
    by Peter G on Mon Jan 21, 2013 at 10:58:59 AM EST
    poor judgment and lack of insight in re-asserting that her office did nothing wrong and will not change its tactics.

    She and her office (5.00 / 1) (#21)
    by Zorba on Mon Jan 21, 2013 at 12:32:20 PM EST
    are not going to change their tactics unless reined in by Attorney General Eric Holder.  Unfortunately, I don't see that happening.
    The hubris embodied by her and her minions is astounding.  And alarming.

    I haven't noticed that Holder (none / 0) (#24)
    by sj on Mon Jan 21, 2013 at 01:38:14 PM EST
    has a compassionate world view.  And yes, the hubris is astounding and alarming.  But don't forget that she is also a minion.

    ::sigh:: OT -- I'd like a minion or two.


    No, Holder doesn't (5.00 / 1) (#25)
    by Zorba on Mon Jan 21, 2013 at 05:22:04 PM EST
    To slightly rework the old saying:  "Uneasy rests the b*tt that sits on the throne."
    And, I also must say that there is someone who is the boss of Holder, and upon whom rests the ultimate responsibility.  If you know whom I am speaking about, and I think that you do.   ;-)

    I'm confused on this point... (none / 0) (#1)
    by redwolf on Fri Jan 18, 2013 at 02:48:16 AM EST
    Aaron Swartz was legally allowed to download the material from the Jstore system.  How was downloading a lot of it a crime?  That's basically like giving a guy 7 years in jail because he filled up his water jug from a drinking fountain.

    Not "a" water jug..... (none / 0) (#2)
    by EL seattle on Fri Jan 18, 2013 at 08:25:18 AM EST
    ...but if someone spent 8+ hours a day for a few weeks or months filling thousands and thousands and thousands of water jugs from drinking fountains at MIT or Harvard (or anywhere, probably) - and they actively worked around measures that are taken to stop the drain -  legal action would seem like a logical step, and totally justified. But the question is "what is the appropriate legal response?"

    At some point, even things like "free water" have value/cost for the places, companies, and people that provide them.


    Jstore and MIT did take actions to end the problem (none / 0) (#12)
    by redwolf on Fri Jan 18, 2013 at 06:29:43 PM EST
    They banned him from campus and they came to an agreement about the extra water he had abused out of the system(I.E. he returned it).  Nothing further was deemed needed by the involved parties until the feds stepped in.  

    It's likely but not certain that the US government went after him because of SOPA.  The feds have a long history of going after people who don't play ball.  The reasons vary, but the constant theme is they have the power and they are rarely if ever punished for using it in evil ways.  Why would you expect U.S. Attorney's to act in a ethical manner if they're never punished for their misdeeds?  Power without accountability always leads to tyranny.


    If I Am Not Mistaken... (none / 0) (#4)
    by ScottW714 on Fri Jan 18, 2013 at 10:01:59 AM EST
    ...there was, at the time, a $1/page fee to cover the costs of making the materials available.  It's free now, but in limited quantities.  This is why he did it in the first place, he was going to make the free materials available for free.  

    I am guessing his logic was if the fee was for their overhead, he could do the same thing with no overhead charges.

    I have always though this was more of an absconding crime, than theft.

    I love the prosecutor's non-sense, 'not our fault, we are just a cog in the machine' and how they only mention the 6 month sentence, not the 30 years they threatened him with.  And no mention of 13 felonies which is easily worse on your resume/record than 6 months in jail.  That would be an assured death sentence to a real career.

    That being said, he should have rode this out,  from all I have read, doesn't seem like a conviction was a given or even a real possibility.  I don't like the implication that the prosecutor, as wrong as they were, contributed to his death.  He had too many options IMO.


    I wouldn't go so far,... (5.00 / 2) (#5)
    by kdog on Fri Jan 18, 2013 at 10:30:36 AM EST
    as to pin the suicide on the persecutors, too many variables and no one can go back in time into the young man's brain and soul.  But the state and it's agents should have to answer for using the law as a weapon to leverage a plea...an all too common tale in our injustice system.

    I'd imagine the persecutors didn't offer a plea down to a misdemeanor for the simple reason it looks bad on their resume.  So what if the punishment would have been about the same, the persecutors have felony conviction rates to uphold, justice be damned.  Not that I think the kid did anything close to requiring any cage time at all.


    kdog, stress brings on biochemical depression too (5.00 / 2) (#6)
    by Militarytracy on Fri Jan 18, 2013 at 01:00:00 PM EST
    We are now on friend number 2 with PTSD.  Lost one at the start of the year.  These are older soldiers too, both very successful.  One retired Lt Col, and then offed himself after trying to drink himself to death.  Our current friend has shocked everyone just as much.  He has always been a leader, graduated top of every class, the number of facts he can store upstairs is profound.  Also deployed 3 times, and his first was the first year in Iraq and amounted to 16 months of long term stress.  Up to this point he has been the best of the best.

    Traumas and PTSD place constant stress on your brain and eat all of your endorphins up.

    Profound stress also causes biochemical depression.


    I believe ya... (5.00 / 1) (#7)
    by kdog on Fri Jan 18, 2013 at 02:10:31 PM EST
    but we can't go around calling those that cause people undue stress or trauma murderers...there are a lot of things we can call them, but not murderers.

    There is such a hostile kind of evil element (5.00 / 3) (#9)
    by Militarytracy on Fri Jan 18, 2013 at 04:34:32 PM EST
    to our culture lately though.  It is as if there is no such thing as too much or too violent unless somehow children fall victim to scenarios in our culture, and then we sort of wake up to what our culture has evolved into but not before the worst thing has happened..

    Maybe it is just me, but since 9/11 it seems like as a society we just can't think straight.  On one hand we now have the ability to take military action in astounding ways, on the otherhand the bullies in our society who used to cheer this "strength" are now simultaneously scared $hitless that this same military is going to be turned against them.  Talk about reaping what you sow.

    We jail more of our population than any other "civiled" first world country.  Capitalism is now Vampire Squidism and we are made to feel that there is nothing we can do about that either.

    Currently kindness is weakness, decency and proportionalism are feared to be mediocrity.  I recently remarked elsewhere that before 9/11 when Josh was a toddler that he received all these bday invitations that requested no gun toys.  I was fine with that but two of the last such bdays we went to, the soldiers were getting ready to deploy to Iraq and asked an honest question of the moms and it made everyone uncomfortable but, "What do we tell them when they see the photos someday of daddy with a gun and they have been raised to think guns are bad or evil?"

    Now though, we were behind a car the other day that once again had the stick figure family and daddy is a stick soldier and he has the M-16 but they also had a giant backwindow sticker announcing ARMY SNIPER.  Nobody before 9/11 announced loud and proud to the world that they were a sniper.  It was almost feared that it would become publicly known that that was your MOS.  I don't get it.  We just can't seem to find the sane middle anyplace.

    What was done to this kid though was extreme, and that just can't be okay.  I'm tired of it.  I think I'm extremed out.


    Tracy, while I agree (5.00 / 1) (#11)
    by Zorba on Fri Jan 18, 2013 at 05:47:57 PM EST
    with you that "there is a hostile kind of evil element," and while I also agree that 9/11 has exacerbated this element in many ways, I'm not so sure that it always wasn't there in us.  
    Much of the problem is that there are so many more ways to instantaneously communicate with others than there used to be and publicize everything that is going on, which only serves to whip up the frenzy and encourage those who would have otherwise kept more or less "underground."
    Add to that the whole fear factor of "others" (which again, was always there, but which gets way more publicity now, especially after 9/11) and, let's face it, propaganda, about gun-worship that we are facing now, perhaps it should not be surprising when sh!t happens.

    Objection. (none / 0) (#10)
    by oculus on Fri Jan 18, 2013 at 05:21:48 PM EST
    Reason? (none / 0) (#13)
    by CoralGables on Fri Jan 18, 2013 at 07:16:56 PM EST
    Unnecessary libelous generality (none / 0) (#14)
    by oculus on Fri Jan 18, 2013 at 07:27:07 PM EST
    re prosecutors, and by my drinking buddy, no less!.

    Sustained (none / 0) (#15)
    by CoralGables on Fri Jan 18, 2013 at 07:39:18 PM EST
    In addition (none / 0) (#3)
    by Reconstructionist on Fri Jan 18, 2013 at 09:06:53 AM EST
     to the value threshhold for the misdemeanor under § 1030, there would also be the issue of whether the crime was committed in furtherance of  a tortious act. Without any research or analysis I'm somewhat puzzled how these offenses could ever not involve a "tortious act." Any thoughts?

      So, in addition revising the value element the "tortious " element might also be reconsidered. As for the "value" aspect, it may not be dollar amount as much as the use of the concept of value to set the thresshold. "Value" is different than "loss" or "actual loss" or "pecuniary gain" etc.

      Not a perfect analogy but if I go joyriding in your $50,000 vehicle the value of the property I obtaineed would seem logically to be properly set at  $50K. But, if after my ride I parked the car undamaged  where it would be easily recovered, your loss would only be the expense  of loss of  use for whatever period you were deprived of access to your car  and my gain would really only be the comparatiive  rental expense I would have incurred for the period.


    If I go joyriding (none / 0) (#17)
    by Amiss on Sat Jan 19, 2013 at 03:33:04 AM EST
    in your $50,000 car, when I returned it, it wo7ld no longer be worth $50,000'. Besides thegas used ,etc. The value would be less due to the mileage you put on it.
    Just a thought, since tax season is upon us.

    OK (none / 0) (#22)
    by Reconstructionist on Mon Jan 21, 2013 at 12:37:54 PM EST
     it would be fair to add the 50 centa mile or whatever the IRS allows one to deduct as expense for use of a vehicle, but my point about the difference between the "value" of the property taken and loss caused by the taking isn't really changed.

    so back off the prosecutor (none / 0) (#18)
    by diogenes on Sat Jan 19, 2013 at 03:24:23 PM EST
    If, as Bob Swartz said, his son did not have a depressive personality and had never been diagnosed with depression of any kind, then I guess there is no reason to even suggest that the prosecutor should give Aaron any different treatment from the usual prosecutor's method of plea bargaining.
    This hardly matches earlier posts describing Aaron Swartz as a suicide risk and blaming the prosecutor for not taking that into account.
    Now we're splitting hairs about which charges should have been in the plea and whether it should have been a felony or a misdemenor, albeit with a six month sentence if the defendent accepted the plea.

    maybe you missed the (5.00 / 3) (#19)
    by Jeralyn on Sat Jan 19, 2013 at 10:31:39 PM EST
    father's statement

    So the notion, the narrative that people are going to say -- is that he's somebody who just has depression -- is just wrong. You'd be depressed too if you were under a 13-count federal indictment and you go see your mother, who's in a coma."

    He's affirming that the criminal charges played a huge role in his suicide. The charges (and his mother's sudden illness) caused his depression.

    His first lawyer confirmed that at the beginning of the case, he relayed to the prosecutor Aaron   was suicidal, and the court was told. It gave enough credence to the information to order he undergo  medical/psychiatric treatment "as directed" as a condition of bond.

    His depression may have been caused by the criminal charges, and after 18 months, he couldn't handle it any more. His girlfriend said today:

    Swartz's girlfriend said today the case drove him to his death.

    "He was so scared and so frustrated and so desperate and, more than anything else, just so weary. I think he just couldn't take it another day," Taren Stinebrickner-Kauffman told the hundreds of people who gathered to remember Swartz. ". In the end, he couldn't allow (prosecutors) to control him, either."

    All his father is saying is that he wasn't prone to depression before these charges.

    He was arrested in January, 2011 and charged in state court. In June, 2011, even though he returned the downloaded material, the feds took over the case. Things had gone from bad to worse. He'd been under this cloud for six months when his first lawyer said he was suicidal.

    If you don't think being charged with a crime is enough to make a person depressed or suicidal, perhaps you should get arrested and find out for yourself.


    Thanks (none / 0) (#23)
    by dainla on Mon Jan 21, 2013 at 01:32:02 PM EST
    for this post.  Best info I've read yet on the case.

    Now back to ignoring politics..