I had no intention of writing on this subject again until I read a statement by Orin Kerr a professor of law at George Washington University that “once the decision to charge the case had been made, the charges brought here [against Aaron Swartz] were pretty much what any good federal prosecutor would have charged.” If what this law professor asserts is true, we are in for a very difficult time in this country.
I was a prosecutor for over 20 years in high level positions with pretty much unlimited discretion. The dozen or two senior prosecutors I worked with in the Norfolk District Attorney’s office over that time were highly skilled and not only capable of trying the most difficult murder case but had done so. About half of them went on to become judges in the district and superior courts, one on the Appeals Court justice and one as a Supreme Judicial Court justice. During my latter years I was in over all charge of the 100 or so prosecutors who passed through our office. My boss, DA Bill Delahunt, had no difficulty with delegating authority. He created a fine office and let it operate.
I found it appalling that this law professor would consider the actions taken in the Aaron Swartz case typical of what a good prosecutor would do. I’d suggest he leave out the word ‘good.’ They are more like daleks – people, usually figures of authority, who act like robots unable to break from their programming.
I’ve learned that not only did Aaron Swartz face 35 years under the initial charges, as the trial approached more charges were heaped upon him in a superseding indictment putting him at risk for up to 50 years. The law professor suggests this is an everyday tactic of our federal prosecutors.
Jim, a person who comments here on occasion, who practiced as a defense lawyer for 30 years in Florida brought to my attention an address given by Robert Houghwout Jackson in 1940 when he was attorney general of the United States wherein he discussed the role of a prosecutor. He concluded his address by stating:
“The qualities of a good prosecutor are as elusive and as impossible
to define as those which mark a gentleman. And those who need to be told
would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”
That is pretty much how I saw the function of a prosecutor. Jackson, who became an associated justice of the Supreme Court and the chief prosecutor for the United States at the Nuremberg prosecution of Nazi war criminals, earlier in the same address stated: “The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous.”
I’ve written about this before here and here. No one can be prosecuted without the consent of a prosecutor. No person who violates any act of Congress must be prosecuted. A prosecutor decides who to prosecute and for what. No matter whatever law is violated, the person can get a pass unless the prosecutor decides to act against her.
We see this right here in Whitey’s case where the US attorney has decided not to prosecute people it has reason to believe were involved in murders. Murderman Martorano in his book shows that he and Howie Winter at the behest of Mafia chieftain Gerry Anguilo killed a half-dozen people and Winter is not charged with any murder; we’ve seen Kevin Weeks lie about the identity of his friend who killed Brian Halloran who many believe was Patrick Nee who also arranged to bring John McGonigle to his brother’s house and was present at the time of his murder according to his own book and that of Kevin Weeks. Nee has never been charged.
We’ve seen it where we overlook those involved in the crime of torture where people have been murdered. We accept it when the president says, “we look forward and not backwards,” when it comes to the actions of a prior administration.
The prosecutor’s power is immense. That’s why reading the statement of Carmen Ortiz that she issued concerning Aaron’s case can only make me shake my head. Others have called it bogus. She said her: “office’s conduct was appropriate in bringing and handling this case. . . . 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.” I have to stop there. Where is the recognition that they did not have to charge Aaron at all. Or not charge him with offenses making him liable to 35 years in prison. Doesn’t she understand she can do that?”
She went on: ”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.” So what? You wanted to make him into a felon when you don’t need to? Doesn’t she get it that the what a young man like Swartz needed was a little kindness and not the indifferent harshness of the law.
She finished by saying: “As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible.” She doesn’t understand that it is much more than that. It is ensuring justice is done. It is making the charges fit the crime and the person and sometimes not charging at all. It is getting away from the draconian philosophy shown by her isolated unkind career prosecutors and noted by former federal judge Nancy Gertner who said “”At the time of the indictment, [Ortiz] said, ‘Stealing is stealing.’ I saw that all the time when I was on the bench,” she said. “This is a classic line.”"
Ortiz has a background as a prosecutor but she never really caught on to what it is to be a good one. She blindly follows the law which is only half the job, the hardest part is using her discretion in deciding who deserves to be charged and who doesn’t; and when charging not to charge to force the innocent to plead guilty but to bring about a just result. But the saddest thing about all of this is to learn as the professor said that this is what every other federal prosecutor is expected to do.
Where have you gone Robert Jackson? Our nation turns its lonely eyes to you.