Not how the news was supposed to go for Carmen Ortiz

Yesterday and today were supposed to be spectacular news days for US Attorney Carmen Ortiz: yesterday morning, hundreds of state and federal police successfully executed a massive raid on violent gangs in Boston, arresting 27 well-known criminals and seizing loads of drugs, cash, and guns.  Only one person they were seeking remains at large.  Boston police commissioner Ed Davis says that he is “anticipating a much quieter summer because of the work that occurred this winter.”  The case was built over a long period of time in order to gather enough evidence to put these guys away for many years, rather than the piecemeal prosecutions that in the past had landed them in prison for only short stints.

That is all great news, and hearty congratulations are due all around.  Today, Ortiz, Davis, and others got a big and well-deserved front-page Globe story out of the arrests (not the Herald, though, which is more worried about stirring up anti-tax fervor).  That kind of thing – the kind of thing that makes people’s lives better – is exactly what law enforcement, including the US Attorney’s office, should be focusing their attentions on.

And yet, if you turn to the Metro section, or the Editorial page, the continuing fallout from the tragic death of Aaron Swartz continues to dog Ortiz.  Metro columnist Kevin Cullen points out that, last week,

prosecutors from Ortiz’s office stood in a Boston courtroom and allowed a former state representative named ­Stephen “Stat” Smith to plead guilty to a misdemeanor for rigging absentee ballots in three elections. Swartz’s lawyers asked for the same consideration, that Swartz be ­allowed to plead guilty to a misdemeanor. Prosecutors refused.

So, given that Ortiz will not explain herself, we’ll just have to presume she believes that illegally manipulating the outcome of elections, which are the essence of our democracy, is less serious an ­offense than downloading an online archive of obscure academic articles.

Also on page 1 of Metro, a news story reports on the fact that, at the very press conference in which Ortiz announced the drug arrests noted above, reporters were more interested in talking about Aaron Swartz.  Ortiz reportedly “became emotional” in discussing Swartz’s suicide while at the same time declaring that the case was “reasonably and appropriately ­handled,” and that she “support[s] the process that was done here.”  Even worse for Ortiz, the Globe’s editorial page – generally a fan of Ortiz – rather than lauding her success against Boston’s street gangs, loudly declared that Ortiz “went way, way too far,” and urged Congress to “reassess the legal statutes that make such eye-popping prison sentences possible in murky cases of unauthorized computer use.”

Elsewhere in the news, Peter Gelzinis at the Herald noted that “[w]hat began as a victory dance for Carmen Ortiz yesterday afternoon ended with tears welling in the U.S. attorney’s eyes as she choked off a press conference with a caustic: ‘Does anyone else have any questions, because if not, I’m done.'”  And former federal judge Nancy Gertner really tore into Ortiz on WBUR, questioning not only the Swartz case but the practices of the office generally:

“What happens with the press, you don’t talk about the cases which really reflect this kind of poor judgment. You talk only about the cases that succeed,” Gertner said. “This is the example of bad judgment I saw too often.”

When asked if she was referring to the bad judgement of Carmen Ortiz, Gertner responded, “That’s right.”

Gertner is unusually outspoken for a former judge; still, that kind of thing is pretty rare.

And while we’re here, it’s important to note that the “deal” Ortiz reportedly offered Swartz – pleading guilty to felony charges in exchange for a recommendation of a 6-month prison sentence – was no guarantee of a 6-month sentence.  As Ortiz acknowledged in her first statement on the matter, “[u]ltimately, any sentence imposed would have been up to the judge.”  So even if Swartz took the deal, he was still potentially looking at a very long time in prison.

Those who say Swartz’s conduct fit the statutes and therefore he was charged appropriately are, IMHO, missing the point.  First, just because a defendant can be charged in a certain way does not necessarily mean that he should be so charged – that, I take it, is Ernie’s point in this post, with which I basically agree.  Second, Orin Kerr (a very knowledgeable guy on this area of law), who indeed wrote that Swartz’s conduct fit the statute, wrote in a subsequent post the following:

I think it’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors filed a superseding indictment designed to scare Swartz even more in to pleading guilty (it actually had no effect on the likely sentence, but it’s a powerful scare tactic). Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics…. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring….

[Also,] the Swartz case does point to a serious problem with the Computer Fraud and Abuse Act…. Felony liability under the statute is triggered much too easily. The law needs to draw a distinction between low-level crimes and more serious crimes, and current law does so poorly.

The argument, stated otherwise, is that federal prosecutors routinely run up huge, scary indictments against defendants, not because it’s appropriate, but because the statutes allow them to, which gives prosecutors immense leverage in plea deals.  That’s really, really ugly.  And it appears to be exactly what happened in the Swartz case.

I think it’s fair to say that any political career that Carmen Ortiz may have been contemplating is, as Margery Eagan wrote yesterday, “done. Finished. Forever linked to bringing the full and frightening weight of the federal government down upon a 26-year-old computer genius — and a suicide risk.”  Perhaps Ortiz could overcome that eventually, but it will take many many years for her to do so.

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