Posted On: January 19, 2013

AARON SWARTZ CASE: US ATTORNEY’S ANSWERS STILL RING HOLLOW

The world lost a brilliant mind a week ago today, when Aaron Swartz, the 26 year-old internet prodigy who at age 14 invented the ubiquitous internet feed RSS, as well as internet company Reddit, took his own life. Swartz was no “average person,” but an internet prodigy and genius who was gifted with the kind of genius rarely found in the world, on the level of a Steve Jobs.

While we may never know the precise reason or reasons that Swartz ended his life, to borrow the term genius here, it doesn’t take any kind of genius to see the causal relationship between Swartz’ suicide and his prosecution – many say persecution – by the Boston office of the U.S. Attorney’s office, headed by Massachusetts U.S. Attorney Carmen Ortiz. The media and the twitter sphere have been abuzz for seven days now about what has widely been called an overzealous prosecution of Swartz by Ortiz’ office. Despite a blog post written by a George Washington University Law professor which argued that no prosecutorial overreach occurred – which somewhat curiously and conveniently appeared 72 hours after Swartz’s death - the overriding consensus now appears to be that Ortiz’ office was far too aggressive and unyielding against this young man, who tangibly hurt no one.

This conclusion includes the editorial board of The Boston Globe, who wrote on today’s editorial page, “In piling on 13 charges and thereby threatening Swartz with up to 35 years in prison, Ortiz’s office went way, way too far.” Equally disturbing is the fact that Ortiz and her deputy prosecutors were made well aware of Swartz’ vulnerable mental health status – that his genius was tragically co-occupied by depression, and that the stress of this wildly over-charged case was bearing down on him heavily. Boston attorney Andy Good, who was one of three lawyers who at various stages represented Swartz, told the Boston Globe that he warned the deputy prosecutor handling the Swartz case of his client’s vulnerable mental health status. Atty. Good told the Globe’s Kevin Cullen, “The thing that galls me is that I told (Assistant U.S. Attorney Stephen) Heymann the kid was a suicide risk,” “His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.”

In a phone interview this past Monday with The Huffington Post, Swartz's attorney Elliot Peters accused Stephen Heymann of hyping 13 federal charges against Swartz to generate publicity for himself. According to Elliot Peters, Heymann was looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill," Peters believes that Heymann thought the Swartz case "was going to receive press (media coverage) and he was going to be a tough guy and read his name in the newspaper." Heymann is the deputy chief of the criminal division in the U.S. Attorney's Boston office, also heads a group in the office called the computer crimes task force. Offering further motive for Heymann’s overly-aggressive and unmerciful stance against Swartz, Peters said that Heymann’s role in the computer crimes section "doesn't carry much prestige and respect unless you have computer crimes cases."

Against this bulldozer approach taken by the Boston U.S. Attorney against Swartz, readers should know exactly what Swartz did and didn’t do, and why he did it. Swartz, a very public advocate for greater public access to the internet, hacked into MIT’s computers to download a very large amount of academic material from the online database known as JSTOR. He never really harmed anyone, and he didn’t do it to make money, but to make a larger point about open internet access. Legally, the offense is akin to trespassing. JSTOR did not wish to press charges against Swartz and urged Ortiz’ prosecutors to drop the case against him. MIT, however, would not yield, and has been widely reported to have been, along with Heymann, pressing the steroidally-driven legal campaign against Swartz.

In my view as a Dedham, Massachusetts criminal defense lawyer, this is like using a missile launcher against a mouse, and it reveals either unacknowledged motives to persecute Swartz, or a combination of incredibly poor legal judgment and moral callousness.

Against this barrage, Swartz’ lawyers were not looking for a straight dismissal. They offered what any level-headed defense attorney would recommend: A disposition that would either keep the charges technically open for a given period of time, and then dismiss them later assuming that Swartz did not engage in the same act for that time, and/or a term of probation. Under such a disposition, if Swartz had done the same thing again, he would then be exposed to prison time. Such a disposition takes place every day in prosecutors’ office’s across Massachusetts and the country, and it’s eminently reasonable. Yet for reasons that remain unexplained by Carmen Ortiz’ office, her office would not drop their demand that Swartz plead guilty to 13 federal felonies and spend up to six months in prison. “There was such rigidity with the people we were dealing with,” Peters has commented. “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.”

Now, quite possibly the brightest technology mind since Steve Jobs is dead – found hanging in his New York apartment by his girlfriend – another victim in this sordid case who, along with Swartz’ bereaved family, will never fully recover.

And all for what?

Yes, it seems clear that young Mr. Swartz suffered, as so many people do, from depression. But it seems equally clear that the extremely aggressive actions of the Boston U.S. Attorney's office in this matter, lacking proportionality and mercy, very likely pushed Mr. Swartz over the edge, and to dispute that is to engage in a blatant form of denial.

There is a line in a song on the Beatles’ Abbey Road album, whose lyrics seem to apply to a number of parties in this sad story: “You’re gonna carry that weight; carry that weight, a long time.”