The rigid and aggressive prosecution of internet activist Aaron Swartz — whose family blamed his suicide in part on federal prosecutors in Boston — was the most recent in a series of cases that have drawn both convictions and criticism.
The U.S. Attorney for Massachusetts, Carmen Ortiz, is a Democrat and an Obama appointee who was trained at Harvard by a legendary Watergate prosecutor, and whose resume includes reforming the Guatemalan criminal justice system. But a growing number of liberal critics say she has also emerged as a Javert-like figure in high-profile cases in which a prosecutor’s discretion often comes into play. Indeed, when the Boston Globe named Ortiz “Bostonian of the Year” in 2011, it flagged the “broad-based criticism” that she “still adheres too closely to a rigid federal sentencing framework in recommending punishments, despite a US Supreme Court decision allowing more leeway.”
In the Swartz case, Ortiz’s office charged the young activist with wire fraud, computer fraud, unauthorized access to a computer, and computer damage, ultimately offering a plea bargain that required 6 months in prison and an admission of guilt in a case whose nominal victim, JSTOR, had declined to press charges.
“It is that judgment that I worry about with Ortiz over and over again,” said Nancy Gertner, a former federal judge for the United States District Court of Massachusetts who now teaches at Harvard Law School. “She has a view of the law that any crime deserves the full brunt of the U.S. prosecution.”
Ortiz’s statement in a July 2011 news release has become a rallying point for critics of the government’s handling of the case. “Stealing is stealing 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 sell what you have stolen or give it away,” she said.
And while Ortiz has an appealing story — born in Spanish Harlem to Puerto Rican parents, she was the first in her family to go to college, and later raised two children mostly on her own — she has become an increasingly divisive figure in her home state. And what online activists have recently discovered is something that has long inflamed the local defense bar.
“The US Attorney’s office is flexing its muscles in totally inappropriate circumstances as it does time and time again. It has done so with a vengeance since Ortiz has become District Attorney,” said Harvey Silverglate, a criminal defense and civil liberties lawyer who calls the prosecution of Swartz “atrocious” and “very inappropriate.”
“This time it has finally touched the public anger much more directly and intensely because she picked someone who is in his own way iconic and it has resulted in the death of young man who is a national treasure,” he said.
The most high profile case to draw such criticism was her office’s conviction of Tarek Mehanna
in 2012 for supporting Al Qaeda and plotting to kill US soldiers in Iraq. Evidence was based on online communications and research, including translating texts online, watching “jihad” videos, researching the 9/11 attackers, and discussing views about suicide.
“The office sought an outcome that was hard to explain,” said the ACLU’s Matt Segal, who filed an amicus brief in that case, speaking generally of Ortiz’s office. “What resulted was a sprawling case against a guy who said lots of things that were certainly extreme, but didn’t do a whole lot.”
Ortiz has also won publicity and media attention from her tough-on-crime posture — hardly atypical for a federal prosecutor — and “has been the public face of the office more than any other U.S. Attorney,” said Gertner.
In the Swartz case, the U.S. Attorney’s Office is keeping quiet. “We want to respect the privacy of the family and do not feel it is appropriate to comment on the case at this time,” Ortiz spokeswoman Christina Sterling told BuzzFeed (and endless numbers of other outlets).
Ortiz also has deep roots in Democratic legal politics. Her best-known case may have been the Abscam government bribery corruption case of the early 1980s, which she worked on during an internship in the U.S. Department of Justice’s public integrity unit following her second year in law school.
Working alongside her was a young Eric Holder, who in 2009 appointed her to U.S. Attorney. She is the first Latina to hold the post in Massachusetts. In 2010 Ortiz created a civil rights initiative in the Massachusetts District Attorney office to take on federal cases, and sits on the Attorney General’s Advisory Committee Subcommittee on civil rights.
Holder’s office would not comment on Ortiz or the Swartz case.
Ortiz made a name for herself fighting political corruption.
“If you use your position to line your own pockets, you are not going to be above the law,” Ortiz told the Globe. Her most notable prosecutions were against former Massachusetts House speaker Salvatore DiMasi and former state senator Dianne Wilkerson, who pleaded guilty to eight counts of attempted extortion, cases that began under Ortiz’s Republican predecessor.
She worked at the Harvard Law School’s Center for Criminal Justice from 1989 to 1991, focusing on reforming the Guatamalan criminal justice system alongside Phillip Heymann, famed Watergate prosecutor and father of the assistant district attorney, Stephen Heymann also involved in the Swartz case.
Ortiz has been suggested as a candidate for statewide office, but earlier this month said she had no interest in the prospect. Now, she may have to fight to keep her job.
“Aaron’s death is…the product of a criminal justice system rife with intimidation and prosecutorial overreach, Swartz’s parents said in a statement naming her office on an online petition calling for her removal from her position, which has gained over 28,000 signatures.
Her local adversaries could ask for nothing more.
“I hope she ends up being driven out of office,” said Silvergate.
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