Friday, January 18, 2013

Carmen Ortiz

Carmen Ortiz, the US Attorney with responsibility for the Aaron Swartz case, is taking a lot of heat for her role. A petition is calling for her dismissal, and there are predictions that her once-promising political career is finished. As Globe columnist Kevin Cullen says this morning
… Ortiz is doing herself no favors by refusing to explain at length decisions made in a case that raises legitimate concerns about antiquated laws and government overreach in the digital age. … It isn’t too much to expect a public servant to take questions that serve the public.
I am of two minds about Ortiz and her role here. Some have pointed out that she is only doing what federal prosecutors and US Attorneys do all the time--over-charge, then try to get defendants to bargain away their constitutional right to a trial in exchange for a less than absurdly long prison sentence. This line of argument suggests we should be fighting the system, which unjustly imprisons many people we have never heard of every day, not the individual who tried to do it to Aaron Swartz.

And yet there is something sickening about the statement that Ortiz finally did release, as Mike Masnick deconstructs it on TechDirt.

Ortiz wrote in defense of herself and her office,
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.
Masnick notes,
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.  
It really is awful.

I am so glad that I live in a state where judges are not elected. This sort of history-rewriting makes me wish that the people who really pull the levers in the criminal justice system, who are the prosecutors and state and federal attorneys, not the judges, had to stay out of politics for five years after leaving office. Perhaps they would have less incentive to put out such self-serving distortions.

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