The Swartz suicide and the sick culture of the DOJ

Published: 10:54 am Wed, January 23, 2013
By Harvey A. Silverglate

Some lawyers are joking when they refer to the Moakley Courthouse as “the House of Pain.” I’m not.

The ill-considered prosecution leading to the suicide of computer prodigy Aaron Swartz is the most recent in a long line of abusive prosecutions coming out of the U.S. Attorney’s Office in Boston, representing a disastrous culture shift. It sadly reflects what’s happened to the federal criminal courts, not only in Massachusetts but across the country.

It’s difficult for lawyers to step back and view the larger picture of the unflattering system from which we derive our status and our living. But we have an ethical obligation to criticize the legal system when warranted.

Who else, after all, knows as much about where the proverbial bodies are buried and is in as good a position to tell truth to power as members of the independent bar?

Yet the palpable injustices flowing regularly out of the federal criminal courts have by and large escaped the critical scrutiny of the lawyers who are in the best position to say something. And judges tend not to recognize what to outsiders are serious flaws, because the system touts itself as the best and fairest in the world.

Since the mid-1980s, a proliferation of vague and overlapping federal criminal statutes has given federal prosecutors the ability to indict, and convict, virtually anyone unfortunate enough to come within their sights. And sentencing guidelines confer yet additional power on prosecutors, who have the discretion to pick and choose from statutes covering the same behavior.

This dangerous state of affairs has resulted in countless miscarriages of justice, many of which aren’t recognized as such until long after unfairly incarcerated defendants have served “boxcar-length” sentences.

Aaron Swartz was a victim of this system run amok. He was indicted under the Computer Fraud and Abuse Act, a notoriously broad statute enacted by Congress seemingly to criminalize any use of a computer to do something that could be deemed bad.

As Harvard Law School Internet scholar Lawrence Lessig has written for The Atlantic: “For 25 years, the CFAA has given federal prosecutors almost unbridled discretion to bully practically anyone using a computer network in ways the government doesn’t like.”

Swartz believed that information on the Internet should be free to the extent possible. He entered the site operated by JSTOR, a repository of millions of pages of academic articles available for sale, and downloaded a huge cache. He did not sell any, and while it remains unclear exactly how or even if he intended to make his “information-should-be-free” point, no one who knew Swartz, not even the government, thought he was in it to make money.

Therefore, JSTOR insisted that criminal charges not be brought.

U.S. Attorney Carmen Ortiz obscured that point when announcing the indictment: “Stealing is stealing, whether you use a computer command or a crowbar, whether you take documents, data or dollars,” she said, failing to recognize the most basic fact: that Swartz neither deprived the owners of the articles of their property nor made a penny from his caper.

(Ironically, shortly before Swartz’s suicide, JSTOR recognized the intellectual and moral force of the prodigy’s point of view, and it announced that thenceforth it would provide a portion of its articles free of charge as a public service. The organization’s very existence, after all, depends heavily on public funding. Swartz had made his point, but he paid a heavy price, because Ortiz’s office could not discern the difference between Swartz’s victimless actions and the use of a crowbar to steal for profit.)

Swartz was unwilling to plead guilty. He did not view himself as a felon. Indeed, many experts on the CFAA have powerfully argued that he did not violate any reasonable interpretation of the statute, and defense counsel had a highly respected electronics expert prepared to testify why that was so.

But the government kept bludgeoning Swartz by threatening him with dire consequences in the absence of a plea. Hence, while the original indictment contained four counts with a maximum sentence of 35 years, a superseding indictment brought just four months before his suicide upped the ante to 13 counts.

Of course, the government, which told Swartz’s lawyers that prosecutors would recommend seven to eight years in the event of a conviction after trial, announced its willingness to recommend “only” six months if he would plead. With such a deal, the government would avoid the possibility of an embarrassing loss.

But trial was risky for Swartz, as well as expensive. (Swartz’s partner, Taren Stinebrickner-Kauffman, reported that he was very concerned that the trial would bankrupt his family.)

While it is impossible to know the reasons for Swartz’s suicide, one would have to be naïve or dishonest to fail to recognize the role played by the pressures ratcheted up by Ortiz’s office...

Read more on the Mass Lawyers Weekly website

Updates related to Harvey's
book Three Felonies a Day, a critical
take on the Justice Department