Will The Untimely Death Of Aaron Swartz Make Carmen Ortiz Recognize She Too Can Commit An Injustice

Aaron Swartz Arrest Photograph

You know if you are a regular reader I have trouble with some of the things done with the approval of the  U.S. attorney in Boston, Carmen Ortiz.  I had never heard of her before she was appointed to that post. The Patriot Ledger did an interview of her after she was sworn in. Like Whitey Bulger she grew up in a housing project.  She said she always wanted to become a prosecutor because it “was a way of ensuring that the law was abided by, not just by citizens you would investigate and prosecute, but (also) by law enforcement that you would work with as well.” 

She was appointed the U.S. attorney in February, 2010.  Her prosecuting experience prior to that was as an assistant DA in Middlesex for four years, 1991-1994, and an assistant U.S. attorney for 12 years, 1997-2009.

She is not in the news because of anything that bothers me. It is because Aaron Swartz who was arrested in January 2011 committed suicide while waiting trial on charges filed against him by her office.  He was facing up to 35 years in prison for entering onto MIT’s premises and taking from MIT’s computer academic files maintained by JSTOR that MIT offered for sale to the public. Aaron believed these documents were paid for by the taxpayer and should be free.

Aaron was by all accounts brilliant and had the benefits and deficiencies associated with that gift. He had been and would continue to have been a treasured asset of the United States for his knowledge and skills.   Those who knew him best described him as having , “insatiable curiosity, creativity, and brilliance; . . . his reflexive empathy and capacity for selfless, boundless love; his refusal to accept injustice as inevitable’ made the world and their lives ‘far brighter.’ “

He committed a crime through his sense that things weren’t right. His intent was not malicious and he had no desire of personal gain of any kind involved in his act. Carmen Ortiz’s office using its powers to indict piled up on him charges that made him face 35 years. Imagine being a naive to the ways of the world albeit a brilliant young man engaged in what he believed nothing more or less than a prank to make a point and facing that time.  Imagine him being thrown into the world of lawyers, even his own, with their bluster, puffing and bullying thinking he might go to prison where the worst people in our society are sent and he would be deprived of what he most valued, his freedom to create.

But here’s the rub, Aaron was not really facing the 35 years the prosecutors piled on him. That was done to force him to enter a plea of guilty or was available to punish him if he asserted, as he did, that he did not commit the crime. If he threw in the towel, it seemed according to his lawyer, he was going to have to do 6 months in prison and pay a one million dollar fine. This he was facing even though the victim, JSTOR, had asked that the charges be dropped in July, 2011.

They weren’t. The prosecutors either being pressured by MIT or by pressuring MIT ensured the case continued on. Why were the prosecutors going to all this trouble of harassing this highly skilled and extraordinary young man even after the victim asked them to drop the charges if all that was at stake was six months in jail? It seems no one in the prosecutor’s office stopped to ask what would be gained by sending this young man to jail. 

One of my complaints with Carmen Ortiz is her handling of the Catherine Greig case. She was the girlfriend who went off with Whitey Bulger shortly after he was indicted for racketeering in 1995 and lived with him  during his 16 years on the lam. In 1999 Whitey would be indicted for 19 murders. Even though the federal probation office calculated that she should be sentence to 27 to 33 months in prison under sentencing guidelines Ortiz asked the judge to sentence her to ten years, almost four times the normal amount. She received 8 years for this even though she had no criminal record. She was sentenced as if she was an accessory after the fact to his criminal acts which was not charged because it could not be proven.

It didn’t make a difference to Ortiz whoh said she was pleased “with today’s sentence, one of the longest sentences ever imposed for a harboring charge.”  At her press conference afterwards she suggested Greig deserved the sentence because she was protecting a man charged with murder. Yet there was no showing that Greig knew of those charges, had anything to do with them, or if she knew that she believed them.

But that’s not all about Ortiz’s prosecutorial discretion that is bothersome to me. And all of this is aside from her curious adamantine attitude on the recusal issue  relative to Judge Stearns. The RICO charges in the probation case are much too much overkill where the probation commissioner is facing more than 20 years in prison for patronage-type hirings. She is now going after legislators. Ortiz is criminalizing what is as much a part of America as the Fourth of July, patronage, the assisting by politicians of people who worked for them and helped them get elected.

Then there’s the Caswell Motel case where she’s trying to grab a million and a half dollar property from a guy who has worked hard to earn a living and save for his retirement. This is so the cops can buy new police equipment.  Her basis is that once a year over a twelve-year period some drug activity took place in this motel.

The death of Aaron Swartz has cast a light on the doings of the U.S. attorney in Boston. The cases that I’ve discussed, the ordinary people like Russ Caswell, Probation Commissioner O’Brien and his two co-defendants, and Catherine Greig, do not command the attention of Aaron’s case. Aaron’s death at such a young age is a huge loss to America as would be the loss of any person with his brilliance. I only hope it causes Carmen Ortiz to recognize she has immense power and the injudicious use of them is as much a crime as those committed by the criminals who she seeks to protect us from.

30 thoughts on “Will The Untimely Death Of Aaron Swartz Make Carmen Ortiz Recognize She Too Can Commit An Injustice

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  9. Excellent comment and reference, Jim.

    Below is an incomplete list, but it illustrates how backwards things are at the Boston US Attorney’s Office.

    Individuals who the US Attorney’s Office targeted for severe sentences:

    -Aaron Swartz
    -FBI Agent John Connolly
    -Boston Police Officer Kenny Conley
    -Catherine Greig
    -Margaret Greig
    -John Bulger

    Individuals for whom the US Attorney’s Office argued for lenient sentences:

    -Patrice Tierney (wife of Congressman Tierney)
    -John Martorano (21)
    -Frank Salemme (10-30)
    -Kevin Weeks (5)
    -Steve Flemmi (10)
    -Kevin O’Neil (?)

    Individuals who the US Attorney’s Office requested NO sentences:

    -Patrick Nee (5+)
    -Howie Winter (6+)

  10. Justice Jackson, whom I believe to be America’s foremost prosecutor, presciently described prosecutorial discretion back in 1940.


    I’m not sure how USA Ortiz runs her office. I don’t know if she personally gets involved wich each and every charging decisio, whether she lets bureau chiefs handle it, etc. However, I can emphatically say that some in that office fall way below Justice Jackson’s reasonable bar.

    “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.”

    1. Jim:
      A more appropriate quotation could not have been sent. I find little of that in Ortiz’s approach to the law exemplified by her attitude: “stealing in stealing.”
      I’d like to think in my career I was motivated by those qualities spelled out by Jackson. I always knew the immense powers I had for both good and evil and had the authority to do what I felt right, which I did, and I like to think most others in my office also did. That’s why I was in continuing conflict with some of the cops who did not seem to understand our job is not to punish, that is for the courts.

  11. I agree with Jonathan: the DOJ does play dirty. I also agree with Patty on the scathing assessment of ADA Wyshak which was expressed very well in an earlier post. And I agree with Matt on many his assessments of the DOJ.
    I woke up early this snowy morning in Boston with these thoughts which I thought I’d share with you. The subject is Wyshak’s grotesque violation of double jeopardy jurisprudence. I remember taking a course in law school on “Conflicts of Law” and the issue was always this: What jurisdiction’s laws would apply in a particular case? For example, there’s a car accident in Connecticut between a driver from Mass and a driver from New York, who are both insured by a Delaware Company, but three of the most seriously injured passengers come from Virginia. Whose torts law, CN, MA, NY, DE, VA, will apply? Where can a party bring an action? Lawyers learn to add up the points of contact with each jurisdiction and select an appropriate or most appropriate jurisdiction.
    Now consider Connolly’s trial in Florida. Under Double Jeopardy jurisprudence, we know there’s an exception: two separate sovereigns can separately try a person for the same crime. In Connolly’s case, I argue that one sovereign, the Federal Government, tried Connolly twice for a crime a federal jury in Boston acquitted him of: leaking information that lead to John Callahan’s murder. Add up the points of contact: Federal Prosecutor Fred Wyshak was the lead prosecutor in Miami; he prepared all the witnesses; Martorano, Flemmi, Weeks, Morris, and the five Mass State Cops, among them Major Foley, I believe. Did Wyshak resign from his federal job while he was trying the case in Miami? Did he forego federal COLA pay increases, federal step raises, federal seniority in his federal job while he was trying the case in Florida? Was he in constant contact with his federal office in Boston during the Miami trial? Was he assisted directly or indirectly by federal workers in Boston or Miami while he was prosecuting the case in Florida? Who paid for the travel and hotel arrangements for Wyshak and Wyshak’s witnesses? The Feds or the State of Florida? Did Massachusetts pay for the five state cops? I was told by a guy in Miami that all five appeared in the courtroom every day. You see, if you add up the points of contact, you’ll likely conclude that it was not Florida that tried Connolly in a Miami courtroom. It was the Federal government. Or it was the Federal government acting jointly with the state of Massachusetts. It was not a case of separate sovereigns acting separetely. It was the DOJ, the Feds, cracking the whip over two or three sovereign horses, the US, MA, Fl, pulling jointly under federal control. The Feds were in charge of the prosecutions in Boston and Miami! The Feds were in the driver’s seat.
    Another observation: I would like to see just one time an honest reporter raise this issue and spell it out clearly: that John Connolly was convicted in Florida of a crime he was acquitted of in Massachusetts; that John Connolly was prosecuted in 2001 by Federal prosecutor John Durham in Boston who was in close, continual contact with Fred Wyshak and other colleagues in the DOJ; and that in 2008 Federal prosecutor Fred Wyshak, who was in close, continual contact with John Durham and his colleagues in the Boston DOJ office, prosecuted Connolly in a Miami courtroom.
    All the law review articles I’ve read on double jeopardy jurisprudence warn against “tandem” prosecutions. Tandem prosecutions only seem sanctioned where the trial was rigged or flawed in the first jurisdiction, and where the second jurisdiction has some compelling reason for upholding the integrity of its laws. No one in the Feds, not even Wyshak, contended that Connolly’s trial in Boston was rigged in Connolly’s favor. I’ve seen no compelling reason why Florida thought the integrity of its justice system rested on the re-trial of Connolly. Of course, I believe Connolly was framed in Boston as John O’Brien and the probation officials and others have been framed by Wyshak and the DOJ. I hope some investigative reporter thoroughly investigates what I consider to be a grotesque, unprecedented violation of Double Jeopardy by the DOJ. Who paid Wyshak? Who paid the witnesses? Who paid the Mass State cops? Did the Feds reimburse Florida for any costs? Did Florida reimburse the Feds? Who really tried Connolly in Miami? Federal prosecutor Fred Wyshak did! Fred Wyshak, the colleague and co-worker of John Durham; Fred Wyshak who’d been involved in Connolly’s case for ten years.
    A good place to start this investigation is to research Wyshak’s warning to Durham not to put Frank Salemme on the stand because he had a record of perjury. I read this in a David Boeri piece which stated that Wyshak and Major Foley warned Durham about Salemme. Then Wyshak ignores his own advice and puts Flemmi on the stand in Miami. Wyshak was convinced that Flemmi too had a record of perjury. Wyshak had put Flemmi on the stand before Judge Wolf in 1998-99. Wolf found that Flemmi had lied. So, look at all of Wyshak’s and the Feds continual contacts with the Connolly prosecution, and if you do so fairly, you will agree with me that it was the Feds that prosecuted Connolly twice for the same crime, a grotesque violation of Double Jeopardy jurisprudence.
    It’s still snowing. They say only a couple of inches. One final thought—and I know I’m repeating myself—100 former FBI agents have signed a letter asking for an investigation of the DOJ’s prosecution of Connolly. I think it’s time that investigation begins before we see any other travesties coming out of the Boston office of the DOJ. Let the sun shine in!
    To repeat once again: Everytime you read that John Connolly was convicted in Florida of leaking information that lead to John Callahan’s murder, remember that he was acquitted of that very same crime in Boston. Every reporter who writes that John Connolly was convicted in Florida should simulateneously write that he was acquitted in Boston of the same crime. Once the truth is hammered home, then everyone can ponder whether what happened to John Connolly is justice or an unconstitutional abuse of federal power.

    1. Bill:
      I see the snow got you thinking. I agree fully with the suggestion that John Connolly was subject to being twice for the same crime. There is no clear cut separation in the identity of the parties who are prosecuting him nor is there any reason for a second prosecution which was instituted by the federal government. All the people you mentioned went from Boston to Miami on the dime of the federal government. There’s no disputing what you are saying. I’d also add to your comment my assertion that under the Primacy Clause Connolly should not have been tried for acts he did as an agent.
      The problem with Connolly is that he has no good legal help, as I have suggested before. 100 FBI agents compared to the 35,000 who should be supporting him doesn’t help him. The media won’t pick it up because it is solidly against him. The Connolly situation cries out INJUSTICE but everyone smugly smiles and averts their eyes.

  12. This article states that another 24 yr old computer guru named Jonathan James was prosecuted by US Attorney Heymann in 2008. That young man also commited suicide. Jonathan believed the prosecutors had flipped his codefendant, released him early and tried to use that codedendant to pin everything on Jonathan. He always maintained his innocence. Jonathan wrote in his suicide note that he “has no faith in the justice system.” He also wrote, “The Feds play dirty.”


    1. Patty:
      The feds do play dirty. One of the sleaziest things the FBI does is when an informant is arrested. The agents approaches her and says they will only help her if she doesn’t disclose she was an informant. If she does, they’ll work against her. You saw Justice Jackson’s quote about the job of a prosecutor. The federal prosecutors are as far from that as one can be. It really is a pity.

  13. Matt, when Grieg fled in 1995, Whitey had not been indicted for any murder; there were no allegations of murder in the 1995 indictements. Grieg didn’t know he was a murderer or even an alleged murderer then. No one had officially made that allegation then. Otiz’s claim is bogus that Grieg was severely punished because she was harboring a murderer. Murder indictments don’t come down until four or five years later, around 2001. Where was the evidence that Grieg knew of the later indictments or believed the allegations. It seems she was never consciously harboring a murderer. Also, remember what happened to Ann Gianelli, the bookie’s wife, a registered nurse working at MIT, 52 years old. She was hit with 144 counts, threatned with a lengthy prison sentence, then plea bargained to an admission of 12 counts of money laundering and served one year of a recommended 18 months in prison. Tierney’s wife, however, gets a recommended sentence of probation from ADA Wyshak, and Judge Young sentences her to a mere one month in jail. Gianelli’s wife was accused of tangential involvement in her husband’s two million dollar money laundering scheme, while Tierney’s wife was the sole launderer of some eight million dollars. It looks like a political fix. Also, the attmpt to criminalize normal political activity by the probation department is another example of egregious behaviour by Wyshak and Ortiz. I’m reading Sandburg’s “Abraham Lincoln: the Prairie Years” and he mentions writing letters to the president and other government officials seeking jobs for constitutuents. He also mentions that campaign workers expect to get appointments to public offices. Tip O’Neil admitted that was a routine part of being a politician: helping constituents get jobs. The Swartz case, the Grieg case, the Tierney case, the Probation case and others confirm my opinion that John Connolly’s prosecution was also a travesty of justice. Overzealous prosecutors wreak great harm in society. Much of what I see coming out Ortiz’s office reminds me of the movie “In The Name of the Father” where innocent people are framed or otherwise ruthlessly and excessively prosecuted. Why don’t the federal judges intervene to stop this prosecutorial excess? otherwise they look complicit.

    1. Bill:
      I made many of those points that you reaffirm that there was no evidence Greig knew, never mind believed, Whitey had been involved in murders. I’m sure he never discussed his criminal life with her.
      There is no doubt there is a double standard under Ortiz. I do think you lessen Gianelli’s involvement in her husband’s business but I admit she was over indicted by the feds which is their common tactic. To think they indicted Aaron Swartz on crimes subjecting him to 35 years in prison but were making him an offer of 6 months if he confessed to being a felon tells how much they over indict for the purpose of squeezing out pleas. It works well with career criminals but for those who have led non criminal lives it is a travesty of justice which the federal prosecutors seem not to understand. No doubt Ortiz knew which way the wind was blowing when she had to deal with Tierney’s wife.
      The probation department pursuit was probably the reason Ortiz got the Globe Bostonian of the Year award. It is pushing her because it wants some Pulitizer consideration for its investigation of the probation department. Everyone knows patronage is as American as apple pie but Ortiz and company seek to criminalize it. We all got summer jobs when we were in school though our reps. All politicians help their friends and supporters. How many in Ortiz’s staff are there because some politician helped them. Do you think Raymond Sanger Wilkins the chief justice of the Mass Supreme Judicial Court had any involvement in getting his kid Herbie the same job? Don’t look for any help from the judiicary, it’s not in their nature.

    1. Pam:
      I suppose anyone who believes “stealing is stealing” and that it doesn’t make a difference in the punishment you receive whether it be for stealing a candy bar from a store or the country’s nuclear secrets then there is no limit to what you can expect from such a mindset. I really believe the sentence for Greig as if she somehow knew Whitey had murdered people without any proof of that fact far exceeded any concept of fairness.

      1. I totally agree about the Greig case. It makes me wonder how many others have been harassed by that office.
        One other thing about Greig’s sentence that bothers me is that the charges against her boyfriend haven’t been proven yet. He is not yet convicted, but was certainly presumed guilty for the purpose of her sentencing. It was disgraceful.

        1. Pam, I’ve found that in all the opinions relating to this case by other federal district court judges and the court of appeals that it is assumed that not only is Whitey guilty but that he committed every murder ascribed to him in the manner presented. I’ve been thinking lately that all of this comes from two sources, Judge Wolf’ findings and the media’s bias. I’ve also been wondering what if Judge Wolf is wrong in many of his findings, as he was when he said Trooper Naimovich had been convicted of corruption when he was actually acquitted. It’s something I have to examine.

  14. This is her comment at the time of the arrest:

    “Stealing is stealing,” Ortiz announced on the day two years ago that Swartz was indicted. “Whether you use a computer command or a crowbar, and whether you take documents, data or dollars, it is equally harmful to the victim whether you have stolen or give it away.”

    Really?!? This is her justification? Anyone who stops to think for a minute or two knows that hacking into a database to provide free access to documents may be technically stealing but it is by no means the same as hijacking a Brink’s truck, robbing a bank, or the myriad financial crimes that are taking place all the time. But, doesn’t the US Attorney’s office have better things to do than try to make a name for itself by prosecuting a computer genius. Ortiz and her office turned a blind eye to tips about Bernie Madoff. I think his victims have suffered far greater harm than JSTOR- which as you point out, had forgiven Schwartz.

    1. Blue Devil:
      I agree. No good could come from prosecuting Swartz the way she did. Unfortunately, she seems to be one of those prosecutors who are led around by the nose by the cops. She wanted to become a prosecutor to “ensure that the law was abided by.” That’s about the worst reason I’ve heard. That’s a cops job. Her job is to ensure that each crime is evaluated and prosecuted according to its impact on the victim or the community, the reason behind the crime, and the person committing the crime. I’d have no problem with indicting Swartz for a minor felony and have him do some community service. That would accomplish every possible purpose one could want to come about.
      She did mention something about justice but her actions show a person who thinks all violations of the law by every person, first offender or career criminal, must be treated the same, as you point out in your example where she says “stealing is stealing.” That’s not justice, it’s the opposite. It’s the attitude the British had when they hung a starving person who stole a loaf of bread. Even the most obtuse person recognizes the huge differences in types, amount, and purposes behind stealing.
      I have an idea she plays to power. MIT was offended, be tough on Swartz. The Boston Globe Spotlight series seeking a Pulitzer needed big charges in the probation case. The media’s hatred of the Bulgers punish Catherine Greig. The DEA wants to steal some property, go after a motel owned by an individual rather than one owned by a chain. (I’m sure there are chain motels where more than one drug violation occurs a year.)
      I hope she becomes a real prosecutor and looks at the person as an individual rather than a statistic and learns the best people are those who use their powers wisely and stand up to those who like to push others around. Thanks for your comment.

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