Retired Federal Judge Joins Criticism Over Handling Of Swartz Case

BOSTON — A prominent retired federal judge is adding to the chorus of criticism of U.S. Attorney Carmen Ortiz following the suicide of Aaron Swartz last Friday.

Ortiz’s prosecution of the acclaimed Internet activist for hacking has drawn harsh comment from newspaper editorials, online users and a petition to the White House with 35,000 signatures.

For 17 years, Nancy Gertner sat as a federal judge here in Boston. She says she was troubled by much of what she learned and saw from the bench before leaving in 2011. And she says Ortiz should not have prosecuted Swartz.

“Just because you can charge someone with a crime, just because a technical crime has been committed, doesn’t mean you should,” Gertner said.

“At the time of the indictment, [Ortiz] said, ‘Stealing is stealing.’ I saw that all the time when I was on the bench,” she said. “This is a classic line. Stealing an apple if you’re hungry is different than Bernie Madoff. It is obviously different.”

Swartz allegedly logged onto the computer network at MIT as a guest, using an alias and downloaded four million journal articles from a website JSTOR. For that and various other alleged acts, like hacking into a protected computer, Swartz faced up to $1 million in fines and 35 years in prison.

“Thirty-five years is the maximum someone could get in the case if the judge applied the maximum,” Gertner explained. “And this never happens.”

Yet under the guidelines, Swartz was facing substantial time. His lawyer says the prosecution stated it would seek a seven- to eight-year sentence if Swartz was convicted.

“And in the world of punishment, the prosecutor has enormous power and he has the enormous power to make you plead guilty and give up your rights,” Gertner said.

This is where the judgment of prosecutors, and specifically the judgment of Ortiz, becomes a major issue, Gertner says. She learned on the bench that the power of prosecutors have increased because federal sentencing guidelines have decreased the powers of judges to exercise discretion.

“So the prosecutor determines the charges and the punishment,” Gertner explained. “Again, once they start the process, once the indictment is brought, the potential for enormous punishment is there and although a judge has some discretion in sentencing, often what the prosecutor wants is what the person gets.

“When that happens the prosecutor has enormous power and has to exercise that with some degree of fairness and judgment at that end,” she added.

And this is what Gertner says Ortiz lacked in the case of Aaron Swartz. If the government was willing to recommend four months in prison, Gertner asks, why not two years in a diversion program which would have suspended and dropped charges if he committed no crimes during that period?

“We don’t wreck your life with a criminal prosecution if we think this kind of attention drawn to what you did is all we need to do,” Gertner said.

Unlike judges, a U.S. attorney’s decisions to charge or not charge are not public and can’t be reviewed, except when cases fall apart, like Swartz’s. And Gertner has a critical take on the prosecutor The Boston Globe named “Bostonian of the Year” in 2011.

“If the U.S. attorney is going to take credit for every successful prosecution, not matter what the issues were, the U.S. attorney then winds up as ‘Bostonian of the Year’ for these prosecutions, then you know high-profile prosecutions are valued in the office,” Gertner said. “Mr. Swartz was a high-profile prosecution. Whether they are right is another question.”

Ortiz has not commented on the case since Swartz’s death, stating she wanted to show respect for his family. But on an unverified Twitter account with her husband’s name, picture and identification as an IBM executive, someone was tweeting in defense of Ortiz on Tuesday, and criticizing the family of Swartz for blaming her. One tweet read:

Truly incredible that in their own son’s obit they blame others for his death and make no mention of the 6-month offer.

The account has since been deleted.

Gertner says this case and the suicide of a troubled young man merits attention to the rest of Ortiz’s record.

“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.”

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  • benhar

    Thank you, David, for your reporting on this. Can anyone give a link to the petition?

  • http://hybernaut.com hybernaut

    I find it refreshing that Judge Gertner refers to a trial defendant as a “person”.

  • jefe68

    I agree, Carmen Ortiz needs to be held accountable for her actions in this case.

    I also think we need to scrap this kind of prosecutorial power as it’s clear that some of these prosecutors do not seem to understand the meaning of fairness when it comes to the law. I think Carmen Ortiz should be fired for this gross misuse of the publics trust.

    • http://profiles.google.com/twogunchuck Chuck Crane

      Jury nullification is the answer. If you are on a jury and the defendant is not a danger to society, or the punishment is too harsh, screw the judge and prosecutor and vote for acquittal. If we all start doing this, we can fix the problem and leave maggots like Carmen Ortiz looking like the fools they are.

      • ZAD

        Jury nullification! You mean what happens after you spend wades of cash defending yourself while under terrible stress during the process. Stress that kills you or your relationships with others

        • http://profiles.google.com/twogunchuck Chuck Crane

          Believe me, once prosecutors realize that juries will just acquit in these trivial cases, they won’t be able to threaten people anymore. This by the way is why England’s “black code” that made just about everything a capital offense was abandoned. Juries just stopped convicting people for trivial capital crimes. It works.

          • dougkinan

            Hey Chuck:

            It doesn’t work because lawyers are afraid to use jury nullification and even if they were, the judge could countermand that motion. Finally citizens do not have enough legal education to understand the concept and/or they would be too afraid.


          • S Doradus

            Actually, SCOTUS precedents from 1794 to (last I recall) 1972 show that the judge has no power to reverse jury nullification in the US.

          • sigmaalgebra

            Nonsense. A juror can vote any way they want for any reason they want and explain nothing. Don’t have to call their vote “nullification”. Instead, the jurors are asked to vote, and they vote. Done.

          • S Doradus

            True in the US (although “The Economist” lately ran a series of articles on how publicizing this could get you e.g. carted off to an asylum). But not true in the UK, because since long before jury nullification became an issue in the “Black Code”, judges had the power to make jurys return what’s known as a “special verdict” which only pronounces whether the facts before the court are true.

          • sigmaalgebra

            Judges can say or do whatever they want, but if I’m on the jury then I will vote it the way I see it and explain nothing about why. Period. For anything like an Ortiz case, I will just vote to acquit and explain nothing about why. My vote would be that Swartz is innocent. Done.

  • Fred217

    Thank you, Judge Gertner. Just what I was thinking. How many people did Ortiz terrorize into felony plea-bargains, or impoverish because they maintained their innocence? Let’s talk about character. Notches on a prosecutor’s belt vs citizens’ lives ruined.
    If Ortiz is a miscreant, get rid of her and her deputies. Then, can we reform the system, make prosecutors accountable for malicious prosecution, have some oversight which begins before the next defendant is driven to suicide? Judge Gertner, can you help?

    • NYlawyer

      The problem here is that Swartz clearly broke the law repeatedly. It’s terrible he committed suicide, but the prosecution was not breaking any new ground — it was applying the law. Orin Kerr has a good summary here: http://www.volokh.com/2013/01/14/aaron-swartz-charges/
      I agree that it would have been better to narrow the prosecution to a few counts, but it seems that from a practical standpoint he still would have faced serious time in prison. The six month offer from the prosecution was not unreasonable.

      • Pompus

        I suppose you stand up and cheer every time you read an article about a cop shooting someone’s dog….

      • Iminurbase

        What Swartz did was tantamount to trespassing, that’s what you’re not understanding.

        • sigmaalgebra

          No, not even “trespassing”. The MIT campus and its network are open, and Swartz, from Harvard, was a welcome guest. Even homeless people are welcomed as guests.

          Heck, once I walked onto the MIT campus, visited with a professor about deterministic optimal control theory (guess the professor), bought some books at the MIT bookstore, used a restroom, got lunch, and left. Lucky for me the DoJ was not after me!

          Swartz did absolutely nothing at all illegal or harmful. Nothing.

          At worst he was socially awkward and bureaucratically indifferent, and those are not legal matters.

      • Another NYlawyer

        The federal sentencing guidelines shift sentencing discretion from the court to an interested party– the prosecutor, who, consistent with what would be expected in game theory, plays that card for all it’s worth.

        NYLawyer’s observation that:

        “…the prosecution was not breaking any new ground — it was applying the law ”

        is inaccurate. An accurate statement would read:

        “…the prosecution was not breaking any new ground — it was applying the law without wisdom.”

        “Applying the law” occurs in Iran too.

      • http://profiles.google.com/twogunchuck Chuck Crane

        Did you read the article? The part where Gertner mocks prosecutors for saying “stealing is stealing”? In this case the “victim” specifically asked that the crime not be prosecuted. There was no economic harm. But Carmen Ortiz, maggot that she is, wasted our tax money prosecuting the case for her own self-aggrandizement. Let’s all hope she gets the boot and rots in hell.

        • Pompus

          You say “maggot” I say “murderer.”

          • http://profiles.google.com/twogunchuck Chuck Crane

            How about “piece of human garbage”?

          • Pompus

            Works for me.

        • xpdx

          She apparently doesn’t know the difference between copying and stealing either. How did she get to be a lawyer let alone a prosecutor? This is not complicated stuff. She needs to serve time for this.

      • S Doradus

        Actually, with respect to Orin Kerr, it’s far from clear Mr Swartz broke the law. Kerr doesn’t seem to realize Swartz actually had sufficient authorization to download the JSTOR documents in question. Although not a student at MIT he was permitted to download individual JSTOR documents as a library user there. So the obfuscation of his IP address and MAC address was not in furtherance of ‘unauthorized access’. The real reason for stress wasn’t the possibility of prison so much as the cost of defending even a false allegation – about one and a half million dollars, which he did not have.

        • dougkinan

          S. Doradus:

          You are correct. The “Mike Nifong” conduct and various standards operating out of the US attorney’s office is staggering. It takes years and a lot of money, which poor people do not have, to fight a frame up. When the Boston US attorney’s office wants to frame you, there’s almost nothing you can do about it.


      • David

        He didn’t hurt anyone and spent all his money on trial and was being forced to spend 6 months in jail for a crime that didn’t hurt anyone and if he didn’t. Accept the jail time would get longer. It’s sad that he was put into a super stressful situation and a berg good probability that it pushed him over the edge. It really makes me that he was subjected to 13 felonies for such a stupid charge of copying articles.

      • dougkinan

        It appear that this “NYlawyer” doesn’t understand well what he reads and he doesn’t have the courage to print his name. Judge Gertner has an impeccable reputation. Read what she said, NY lawyer. Based on my direct knowledge the US attorney’s office has a few bad apples who are complicit with official corruption and verified crime.


      • Rudya

        A 6 month offer AFTER the victim of bullying has committed suicide is a meaningless gesture.

        When someone is more interested in personal ambition than justice, this is the kind of result you can expect.

      • sigmaalgebra

        Wrong. Totally wrong. Swartz broke no laws at all. Moreover he caused no harm at all. Finally, he was in line for no financial gain at all.

        The MIT campus and its internet network are wide open, especially to a ‘guest’ from Harvard, which Swartz was. Even homeless people commonly use those facilities. Every computer connected to the MIT network has access to all the materials on JSTOR. Then using the MIT network, Swartz did a download. The only thing he did that was different was that he downloaded an unusually large number of articles, but this caused no harm at all. The expense to MIT and JSTOR was trivial, say, less than one US penny. He ‘hacked’ into nothing. Besides, if any such computer was ‘protected’ and he got in anyway, then it was not really ‘protected’. That is, from Multics, Kerberos, and RSA, MIT is the unique, all-time, undisputed world-class champion in computer security. There’s no way to ‘hack into’ an MIT computer that is really ‘protected’.

        Financial gain? All or nearly all the articles on JSTOR are available for free in any good research library in the world with paper copies available for pennies a page. Moreover, a large fraction of the articles are available at the academic Web sites of the authors. So, the articles are essentially a ‘free good’. For the money, the publishers have already been paid by the libraries. For JSTOR, they don’t really sell the articles but just provide a convenience that saves a trip to the library. To make significant distribution of the articles, Swartz would have had to program a Web site, get an Internet connection with a static IP address, get a domain name, find a way to index the articles and let users search for them, get publicity, and collect fees. Then Elsevier, Springer, IEEE, ACM, Nature, Science, etc. would have contacted him. That he stood to have financial gain is just laughable.

        You are totally confused. I am amazed at the willingness of lawyers to say things, just things, just say them, with no concern for accuracy. I guess that’s all part of the training to be a ‘lawyer’.

      • waynewerner

        So did MLK and Rosa Parks. Also George Washington, Thomas Jefferson, and Benjamin Franklin.

        Just because it’s a law, doesn’t make it right – or sane.

      • Shondell

        The six-month offer was not unreasonable, BUT the enormous potential penalty backing it up was outrageous, unconscionable, and ultimately corrupting. It was a club prosecutors use to routinely win plea bargains regardless of the merit of their cases. Innocent individuals are frequently advised by their own counsel to accept guilt rather than risk this common example of prosecutorial overreach. The game is rigged.

      • tc

        She and her minions. prosecuting him not for what he did, but for his suspected connections to wikileaks..

        They let the masters of the universe who wrecked our economy with securities fraud, and who launder money for drug lords and terrorists go scot free. Nothing but fines (that the criminals don’t pay, just the shareholders and taxpayers) and empty promises to not break the law so egregiously in the future. But anyone who releases information about the crimes committed by our government gets the book thrown at them. Nice empired we had here, before we became a banana republic.

      • Al Dorman28

        Another NY idiot trying to make a name for themself by justifying power. Six months for breaking TOS? Cretin!

  • Dino Romano

    Nothing is more dangerous in our screwed up world than a Latino woman with “crime fighting” credentials that has big political aspirations. Hope she enjoys the attention she will now get.

    • Ben

      I’m not sure what “Latino” has to do with this? I get the gist of your comment, but maybe you could avoid the specific racial/cultural modifier?!

      • Peter

        Add Gender to that too. Latino and Women are irrelevant. But you are right about the evils of big political aspirations. In my opinion, an appointment as US attorney should bar someone from consideration for the bench. As this case shows, people’s lives are at stake when all the prosecutor cares about is their credentials for future confirmation hearings.

    • Iminurbase

      You forgot to mention: “What was she doing outside the kitchen”

  • Pompus

    I am amazed that this woman’s husband thinks the six month plea offer somehow makes his thug wife look better. All that does is prove she KNEW she had no case and that she DELIBERATELY inflicted severe emotional trauma by filing grossly, absurdly inflated charges “strategically.” As far as I am concerned Carmen Ortiz is a thug and a murderer just as surely as if she had put a gun to his head and pulled the trigger.

    • Iminurbase

      I hope they throw her out of office and IBM throws this insensitive employee out of their business. I imagine if they don’t, they will start to lose business as a result.

      • http://profiles.google.com/twogunchuck Chuck Crane

        Agree, this makes me not want to do business with IBM. And yes, I do business with IBM.

    • Fred217

      Google “Caswell Motel forfeiture”
      and you will find Ortiz, again, seeking to
      seize a fourth-generation family business, depriving the owners of their sole
      income and life’s savings. The federal magistrate hearing the case was quoted
      in the Globe as saying she had “serious concerns about the government’s
      interpretation” of the federal forfeiture law being used. If the govt gets the motel, it gets to sell it (value $1.5M), splitting the proceeds with the Town of Tewksbury. Kind of story you expect to hear about in a totalitarian state, isn’t it?

  • Bertibus

    Unfortunately, Judge Gertner waited until her retirement to comment. If she saw what she regarded as prosecutorial misjudgement during her time on the bench, she had a duty to say so, whether publicly or not.

    • http://profiles.google.com/twogunchuck Chuck Crane

      Agree. What kept her from recusing herself while she was on the bench? Why didn’t she speak out? Why didn’t she make the prosecutor’s life a complete misery? Easy for judge to do that.

      Personally I think we all need to start taking jury nullification seriously. If you are on a jury and the defendant is not a danger to society, or the punishment is too harsh, screw the judge and prosecutor and vote for acquittal. We don’t need maggots like Carmen Ortiz wasting our time and money on their personal crusades.

  • http://profiles.google.com/sl0re10 S H

    We created these guides since judges were not dealing with real criminals… but now it has gone too far in the other direction… People are pleading guilty just out of fear of being sent to prison for years… for smaller offences… even if innocent.

  • MisJudged

    The prosecutor determines the punishment? Really Judge? Have you been off of the bench that long?

    • dougkinan


      Yes, really, but only if you know the manipulations that are played in the court.


  • teapartydoc

    Sooner or later prosecutors are going to start falling like flies.

  • George Haeh

    While I denounce the prosecution in this case, this prosecutor was just doing what prosecutors have been doing for decades. People, often innocent, being intimidated into abandoning their rights to trial by the threat of a heavy sentence happens all the time.

    Interestingly the real criminals quickly get into “let’s make a deal mode”, offer up a few names, innocent or not, get most charges dropped and end up with light sentences while ordinary folks who do not know the game get locked up for decades.

    If you do happen to be one of the very few percent to obtain acquittal and are not filthy rich, the penalty is bankruptcy anyway.

    • Paul Smith

      It is true that the prosecutor in this case was following the status quo. It doesn’t make it right. Prosecutors in these cases “throw the book” at defendants in order to set an example. The fact that the court of public opinion is now throwing the book at Ortiz is poetic justice, IMO. She may feel that she doesn’t deserve all of the hate. Aaron Swartz felt the same way, I’m sure. But, an example must be made.

  • http://profiles.google.com/twogunchuck Chuck Crane

    There is something we can all do about this sort of abuse: jury nullification.

    It’s easy. When you are called for jury duty, say that you will be fair and unbiased and apply the law as the court explains it. That’s what they want to hear.

    Then, when you retire to deliberate, ask yourself “Is this defendant a real risk to society?” and if so, “Is the punishment he faces proportionate to that risk?” If the answer to both questions is yes, then decide the case based on the instructions given you. If the answer to either question is “no”, then steadfastly vote to acquit and pay no attention whatsoever to what anyone else, judge or other jurors, may say. The prosecutor and judge are stupid enough to think they are doing a good job by blindly applying laws, however silly and useless they may be, and other jurors may believe the same. But they are fools.

    One Aaron Swartz is worth a thousand maggots like Carmen Ortiz.

    • wssjunk

      Jury nullification depends on the public from which the jury is drawn. I don’t want to entrust my life or my freedom to random members of the public any more than to all-powerful prosecuters who we just have to hope possess some basic humanity. This case represents the public’s failure not just the system’s. We need stronger controls on prosecuters.

  • Dave M

    Thank you judge. The whole thing makes me sick. The Ortiz quote ” stealing is stealing” shows how narrow minded Ortiz is and really makes me wonder how such a person could have such a powerful position to destroy people’s life for a victimless crime while the people on Wall Street raped our elders of retirement accounts and basically get a slap on the wrist and keep the money. Steven Heyman had another ” felon” kill himself in 1998. Does this guy have a soul? You’d think he’d learn but no. Now Ortiz tries to justify her office actions by saying it was only six months in jail. The point is he shouldn’t have served a day in jail. I didn’t know Aaron but really feel that his attorney told Mr Heyman that Aaron was at risk for killing himself and he chose to be insensitive and proceed telling him the time in jail would get longer the closer to trial date. If you want to call this a crime do be it but not one person was hurt emotionally or financially. I’m not saying Ortiz and Heyman killed Aaron but they might have pushed the door open a little more. He was a sensitive man something these two attorneys seemed to disregard and plow forward with 13 felonies. RIP Aaron

  • Chris Tompkins

    Glad to hear certain members of Congress (Issa, Lofgren etc.) are looking into this. If they manage to get Ortiz fired, it will be the rare case of Congress actually doing something worthwhile.

  • dougkinan

    Judge Gertner is 100% correct.

    Today’s comment in the Boston Herald by Ms. Ortiz, “We never intended full penalty for Swartz,” is stunning. Ms. Ortiz admits and knew she never intended to go for the full penalty, yet her office held the full penalty over Aaron Swartz’s head. Any reasonable person can only interpret her comment as bullying to achieve a result that the US attorney’s office wanted, by any means necessary. Isn’t that called bullying?

    As to Ms. Ortiz’ husband’s comments concerning Mr. Swartz and breaking the law, based on my firsthand knowledge, several rogue prosecutors and the Boston FBI office bent over backwards to cover up “truly incredible,” public corruption and verified crime at the Defense Contract Management Agency, subsidized by hundreds of millions taxpayer dollars.

    Some of the verified crime (verified by the US attorney’s office and the FBI) included retaliatory frame ups, promotion fixing, fraudulent promotional certificates, sexual harassment, rigged investigations, prosecutorial misconduct, well planned discrimination and other violations. With the complicity of the US attorney’s office, the perpetrators were well rewarded with quid pro quo promotions, jobs, bonuses and awards.

    As to my opposition in the retaliatory frame up of an elderly, sickly Hispanic female (and other violations), the chief counsel, Bruce Krasker’s response was, “We (the Legal Directorate) can do anything we want. It’s called gaming. We can deny, we can delay …dismiss. We can manipulate the system any way we want.”

    Despite 18 USC 4, which makes it mandatory to report official corruption and government crime, and FBI Director Mueller’s high priority on public corruption, on two separate occasions in 2010, the US Marshals Service visited me at my place of employment at the Massachusetts trial court and told me to stop reporting verified official corruption and verified high crime in government to the US Attorney, her subordinate public corruption officer, Brian Kelly and to members of the federal bench or else. On June 16, 2011 I learned that someone at the US attorney’s office placed me on a government “watch list.” Isn’t this bullying?

    Despite well documented public corruption outlined in my 30-page affidavit, Supervisory Special FBI Agent John T. Foley writes in his letter dated March 28, 2005, that he had no interest.

    Condolences to the Swartz family.


  • http://profiles.google.com/twogunchuck Chuck Crane

    Question: If all the federal district attorneys in the U.S. hanged themselves tomorrow, would anybody care?

    • xpdx

      Their families might. I don’t think I would tho.

  • Sinclair

    Retired Judge Gertner also served for several years when the U.S. Attorney was Michael Sullivan. Need I say more?
    Carmen Ortiz was doing her job enforcing laws that are relatively new and untested. She doesn’t write the law. There are thousands of clever hackers our there who continue to raise havoc around the world, whether it involves stealing money, causing destruction, creating viruses, or raiding confidential files for amusement, blackmail or identity theft while claiming the false pretense of testing security.
    Aron Swartz was mentally ill, living in a delicate balance between life, death and accomplishment. Tragic death was his ultimate personal statement; to punish those who were assigned to punish him.

    • didacticus

      You are either UTTERLY clueless about prosecutorial discretion or you pretend to be.

      The way prosecutors repeatedly justify calls for excessively broad and punitive statutes is precisely by arguing that prosecutorial discretion will prevent abuse. And then they fraudulently pretend they have no choice…

  • john stephens

    ortiz needs to resign immediately

  • john stephens

    papers were posting name and address of gun owners. Should they post name and address of the prosecutors who badgered this kid into suicide?

  • Sinclair

    Aron Swartz was mentally ill, living in a delicate balance between life, death and accomplishment. Tragic death was his ultimate personal statement; to punish those who were assigned to punish him. May he rest in peace.

  • disqus_cTYPCkCVDM

    From New Zealand Ortiz appears to be an ambitiously self-promoting,
    self-sustaining, ‘dont blame me’ apologist for nobody. And she either
    speaks mis-truths or has had appalling communications with her underlings
    for which she must go. The head must fall. I hope she enjoys her new
    work in the private sector.

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