Probe Into US Attorney’s Prosecution of Swartz Continues

The power of government prosecutors has been heavily scrutinized recently following the suicide of internet activist Aaron Swartz.  Swartz, who co-founded the social news website Reddit and was the founder of internet activist group Demand Progress, was found dead on January 11.  In July of 2011 Swartz was indicted on federal charges including wire fraud, computer fraud, unlawfully obtaining information from a protected computer, recklessly damaging a protected computer and several other charges.  However this was not the typical hacking case in which a hacker broke into an online system to seek financial gain or cause havoc and shutdown the website.  Swartz managed to download more than four million documents from the not for profit website JSTOR, a digital library that provides academic journals, books, and primary sources to its users.  Swartz intended to distribute these documents to the public, but before he could do so they were returned to JSTOR without any damage being done.

Following Swartz’s arrest, it was evident that JSTOR was not pressing the government to indict Swartz, and actually appears to be against any legal charges being brought against Swartz; following the indictment JSTOR released a statement on the matter which read in part,

“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.”

However, despite JSTOR’s position, the United States Attorney’s office refused to drop charges, with US Attorney Carmen Ortiz being quoted as saying, “Stealing is Stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.” Rep. Darrell Issa (R-Vista) and Elijah Cummings (D-MD.), on behalf of the committee on oversight and government reform, recently requested a briefing from the United States Attorney General seeking clarity about the decisions of the US Attorney’s office to bring criminal charges against Swartz.  In the request, the committee questions the tactics of the prosecutors, which allegedly included offering a 7-8 month sentence if a guilty plea was accepted and a statement to Swartz that if he did not accept and was convicted, then the government would seek a prison sentence of 7-8 years.

Among the specific questions that the committee has requested in the briefing by the Attorney General are

  1. Was Mr. Swartz’s opposition to SOPA or his association with any advocacy groups among the factors considered?
  2. What specific plea offers were made to Mr. Swartz, and what factors influenced the decisions by prosecutors regarding plea offers made to Mr. Swartz?
  3. Why was a superseding indictment necessary?

The full text of the committee’s request can be found here.

Part of the problem of prosecutorial overreach stems from the pressure of the prosecutors to secure convictions, and this often includes the tactic used against Swartz of offering plea deals and indicating to defendants that if they do not accept the plea deal and go to trial, the time spent in prison could be significantly higher if convicted.  As mentioned earlier, in the Swartz case prosecutors allegedly offered a plea deal of 7-8 months with the threat of a 7-8 year prison sentence if convicted.  Even a completely innocent person would have to double question themselves in this position with nothing being certain in jury trials.

Scholar Glenn Harlan Reynolds, a Beauchamp Brogan Distinguished Professor of law, makes several convincing arguments in his essay on prosecutorial overreach.  One potential response could be to analyze the grand jury process as it is in place now.  The grand jury is meant to be a major bar, or a hurdle to prosecutorial overreach, but as Reynolds states, the historic phrase that “a good prosecutor could persuade a grand jury to indict a ham sandwich” establishes that this process needs to be revamped.  Another cause of this is prosecutorial immunity, which Reynolds describes as a “judicial invention.”  Reynolds argues that while this immunity may prevent prosecutorial misconduct, it also in a way enables it because it removes one form of accountability.  Reynolds’s essay provides great insight on this topic and the full text can be found here.

The US Attorney’s response to the Committee’s request will hopefully provide answers that many have been asking since the death of Mr. Swartz.

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