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U.S. attorney: Criticism of Aaron Swartz prosecution is 'unfair'

Carmen Ortiz, who previously compared the late Internet activist to a common criminal, tells a Boston radio station that charges of overzealousness by her office are "unfair."

Carmen Ortiz, U.S. Attorney for Massachusetts
Carmen Ortiz, U.S. Attorney for Massachusetts
U.S. Department of Justice

Carmen Ortiz, the embattled U.S. attorney who charged the late activist Aaron Swartz with multiple felonies, has responded to critics by saying complaints about any prosecutorial overzealousness are "inaccurate" and "unfair."

Ortiz, 57, said in a radio interview that a wave of criticism -- which includes a congressional investigation, a court Web site hack, and a petition demanding her removal from office -- is off-base and uninformed.

"I have heard some of the claims in terms of being overzealous, or lack of supervision" of prosecutors in the office, Ortiz, who was appointed by President Obama and has previously denied any wrongdoing, told Boston's WBUR radio in an interview aired yesterday. "And I think they're actually very inaccurate. They're unfair. And they're unwarranted."

WBUR and Massachusetts Lawyers Weekly published a joint report into Ortiz's tenure that found "other prosecutions that parallel the Swartz case" that may "raise similar concerns about her hands-off leadership style, overzealousness, judgment and use of discretion at the grand jury and trial levels." In one case Ortiz's office brought, a federal judge threw out the charges against a defendant after declaring prosecutors' witnesses were so unbelievable that no jury would find them credible. In another, prosecutors accused a medical device company of defrauding surgeons but never talked to the alleged victims, who were prepared to testify for the defense.

"With respect to this notion that prosecutors pretty much run things here and that I don't make independent decisions -- that's completely absurd," Ortiz told WBUR. "We have a hierarchy of supervision. No AUSA in this office is able to bring a case, uh, just on their own." (An AUSA is an assistant U.S. attorney who reports to Ortiz.)

Swartz committed suicide on January 11 in New York. His family and friends have blamed Ortiz for filing 13 felony charges against the late activist for allegedly downloading academic journals he was authorized to access (but not access in such large quantities). "He was killed by the government," Swartz's father, Robert, said at his son's funeral.

Prosecutors accused Swartz of connecting a computer to MIT's network without authorization and retrieving more than 4 million academic journal articles from the JSTOR database. The advocacy group Demand Progress, which Swartz had helped create and which helped defeat the Stop Online Piracy Act a year ago, likened it to "trying to put someone in jail for allegedly checking too many books out of the library."

At the time the charges were filed, Ortiz compared Swartz to a common criminal in a press release. "Stealing is stealing whether you use a computer command or a crowbar," Ortiz said. Last month, less than three months before his criminal trial was set to begin, Ortiz's office formally rejected a deal that would have kept Swartz out of prison. Two days later, Swartz killed himself.

If Swartz had stolen a $100 hard drive with the JSTOR articles, it would have been a misdemeanor offense that would have yielded probation or community service. But the sweeping nature of federal computer crime laws allowed Ortiz and Assistant U.S. Attorney Stephen Heymann, who reportedly wanted a high-profile computer crime conviction, to pursue felony charges -- even though local prosecutors reportedly were content with a stern warning.

The Boston U.S. Attorney's office was looking for "some juicy-looking computer crime cases, and Aaron's case, sadly for Aaron, fit the bill," Elliot Peters, Swartz's attorney at the Keker & Van Nest law firm, told the Huffington Post. Heymann, Peters said, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."

Harvard law professor Larry Lessig, who knew Swartz and worked with him, gave a lecture this week titled "Aaron's Laws: Law and Justice in a Digital Age." In it, Lessig called for a reform of U.S. computer crime laws, saying that "obviously first we need to fix" them, but also: "We have to fix dumb copyright. We're here in part because of dumb copyright laws."

In the WBUR interview, Ortiz said she didn't want to discuss Swartz's case in detail because of the congressional investigation. But she did say, in response to criticisms that Swartz was facing the possibility of decades in prison: "I will talk to you about proportion because that is important. We don't take our responsibility lightly. We try to, you know, do the right thing. We strive to do justice."