The controversy over the role of MIT and Massachusetts United States Attorney Carmen Ortiz in the prosecution leading up to the suicide of Aaron Swartz could lead to a healthy examination of the power of prosecutors. Politically tinged prosecutions by federal and state prosecutors may carry a risk of injustice as prosecutors who see their own legacies and/or political futures tied up in high profile cases.
We all want the “bad guys” caught and punished and so prosecutors are in a default position of being admired by the public. Prosecutors also have an advantage in controlling a good deal of their own press coverage. They gravely announce the indictment of some figure and the damage the alleged perpetrator has caused. The media infrequently displays a suspicious regard of the actions of prosecutors, certainly not to the extent they challenge other public figures. Aaron Swartz was obviously not a politician but he was a well-known figure who had engaged in a number of policy issues affecting the future of information dissemination.
It has often been said that a prosecutor could get a grand jury to indict a ham sandwich. Another potent weapon in the prosecutor’s arsenal is the plea bargain. No matter how good a defendant’s chances at trial, there is always the chance of conviction and the government’s sentencing recommendation after trial will be harsher than if a plea is negotiated. In other words the prosecutor can offer the near-certainty of a mild sentence in exchange for a plea of guilty. Many defendants are under such pressure to avoid the risk of a tougher sentence and the financial stress in defending the case that they accept the plea bargain. Even if they avoid prison time they go through life as a convicted felon.
This was apparently the situation facing Mr. Swartz, who faced over thirty years in prison if convicted after a trial but was offered six months by the government in exchange for a plea. Professor Lawrence Lessig of Harvard, a friend and supporter of Swartz, saw this as bullying by the government.
In a letter to the Boston Globe on Tuesday Northeastern University School of Law Professor Michael Meltzner wrote: “In the Aaron Swartz case, the US attorney apparently offered six months but threatened many years. Such a disparity has nothing to do with determining guilt and appropriate sentencing, and everything to do with protecting the overwhelming power of the prosecution and its interest in coercing the vast majority of defendants to plead guilty.”
Boston College Law Professor George Brown also published a letter in the Globe on Tuesday, saying of the U.S. Attorney’s office, “Despite its immense power, this office operates with little, if any, accountability to the public for its actions. Part of the scrutiny ought to include the political role of the US attorney, both as a regulator of state politics — through anticorruption prosecutions — and as a potential participant in state politics — as a candidate for high office.”
As I’ve written in CommonWealth Magazine, I have grave doubts about the “three felon speakers” narrative in this state because the first two were largely coerced into plea deals. Charles Flaherty was hounded for several years and gave up to avoid the risk of prison time and the continued financial drain of defending himself against a foe with nearly unlimited resources. Thomas Finneran faced a similar situation. As Attorney Harvey Silverglate has argued, Finneran had a very defensible case against the charges facing him, but when the government offered a plea deal with no prison time versus the recommendation of prison should Finneran be convicted at trial, the speaker was all but compelled to take the deal. The Finneran case and many others are detailed in Silverglate’s book Three Felonies a Day: How the Feds Target the Innocent.
Just as he harshly criticized Ortiz, Lessig also criticized MIT for its role in the Swartz case. MIT subsequently announced it has appointed Professor Hal Abelson to examine the university’s role in the case. Lessig called MIT’s action “extraordinarily important” and praised Abelson as “the best possible person in the world to look at what MIT did and to report back about whether it was right or wrong.”
As for Ortiz, Christine McConville of the Boston Herald reported on January 21 that “Ortiz’s spokeswoman, Christina DiIorio-Sterling, said last night the Swartz case won’t affect the office’s handling of other cases. ‘Absolutely not,’ she said. ‘We thought the case was reasonably handled and we would not have done things differently.’”
As James Q. Wilson wrote in Bureaucracy: What Government Agencies Do and Why They Do It, “When criticized, some organizations hunker down and others conduct a searching self-examination.”
MIT is conducting a searching self-examination. Carmen Ortiz is hunkering down. That won’t do.