Aaron Swartz’s Prosecution Points To An Ongoing Great Misunderstanding By Our Federal Prosecutors As To Their Role

And Some Deny There
Is A Great Painter
(click on photo)

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.


6 thoughts on “Aaron Swartz’s Prosecution Points To An Ongoing Great Misunderstanding By Our Federal Prosecutors As To Their Role

  1. In the above piece, you state: “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.”

    This issue is the crux of the Series of Installments that have been posted on nhjustice.net (NO WITNESS = NO CASE), in which Prosecutor Robert Libby made the discretionary decision to prosecute me for criminal trespass while in the kitchen of the property owned by my family’s TRUST.

    Prosecutor Libby stated that he was relying on an AFFIDAVIT, that was filed by a lawyer who had reason to believe at that time the AFFIDAVIT was based upon a foreclosure fraud orchestrated by Robin Arkley who used a known robo signer, Victor Parisi, to gain possession of the TRUST property. He did no independent investigation.

    The deal he tried to make with me, was that if I pled guilty he would drop the charges, but if I wanted a fair trial he would make certain that I was found ‘not competent’ to stand trial; which is what ultimately happened.

    One of the material issues at stake was whether John Iuele was actually James Bulger. I refused the Prosecutor’s offer, and he cause a REPORT to be filed with the Laconia District Court, New Hampshire that found me an incurable psychotic. The issue of John Iuele’s identity was incorporated into the REPORT. And, in violation of New Hampshire law two judges ruled in favor of the Prosecution. There was no cross examination of the REPORT. The Court refused my request for a subpoena duces tecum of the author, and his superiors, that wrote the October 13, 2009 REPORT.

    My family has now lost all its property, and I have been declared ‘not competent’ due to Prosecutor Libby’s discretion to destroy us. Where is the JUSTICE in his acts? The Prosecutor has no check, or balance. The power appears to be absolute. And, as they say ‘absolute power corrupts absolutely’.

  2. Hi there, good morning – enjoyed today’s article.
    Was still wondering – as the details (tip from Iceland) of the FBI’s version regarding Bulger and Greig’s apprehension was met with skepticism – do you believe the FBI’s official version of the female tipster from Iceland?

    1. Jan:
      I have difficulty believing anything put out by the FBI even though we are assured that today’s FBI is not the same as yesterday’s while at the same time we see that nothing has really changed. I’d have to know more about the situation before believing it. I’d like to follow the trail of the reward money. Did that woman get to keep all of it or did she have to share it? We have no ability to get beyond the walls of the FBI and having been lied to for years by them how does one give them any type of credence? I suppose I could have simply answered, no, I don’t believe it.

      1. Lol, regarding your last sentence, I have to say thank you for a good laugh! Yes, I’m with the skeptics on this one as well, in part, for the good reasons you mention.

        1. Jan:
          Glad you appreciated the last line. Sometimes I wish I had never stuck my nose into this. It’s sometimes good not knowing too much.

          1. the explanations/examples in the first few sentences are what made the grand finale and reality of the last sentence funny. Such is the reality of the situation. I think a lot of people know a lot and it really doesn’t matter, some people know more than they even realize. The truth is often hidden in plain sight, just like Bulger was all these years and people just ignore it for a myriad of reasons.

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