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Ortiz Under Fire: Critics Say Swartz Tragedy Is Evidence Of Troublesome Pattern

This is a joint investigation conducted by WBUR and Massachusetts Lawyers Weekly. A two-part audio report (above) aired on WBUR-FM, while the full text report (below) appeared in MLW and has been reprinted, lightly edited, with permission.

BOSTON — Less than four years into her tenure as U.S. attorney for Massachusetts, Carmen Ortiz has found herself under the uncomfortable lens of a national microscope.

U.S. Attorney Carmen Ortiz was criticized for her office's prosecution of Internet activist Aaron Swartz, who killed himself in January. (Elise Amendola/AP)

U.S. Attorney Carmen Ortiz was criticized for her office’s prosecution of Internet activist Aaron Swartz, who killed himself in January. (Elise Amendola/AP)

Ortiz’s performance and fitness for the job are being questioned by a growing list of critics, which now includes congressmen, judges, lawyers and former federal prosecutors.

Her reversal of fortune came hard on the heels of the Jan. 11 suicide of an Internet activist. Aaron Swartz’s death — which occurred two months before the 26-year-old was due to go on trial on charges that he illegally downloaded millions of academic documents from a Massachusetts Institute of Technology computer — created a firestorm that prompted more than 52,000 people to sign a White House petition calling for Ortiz’s ouster.

It also led members of the U.S. House Judiciary Committee to accuse Ortiz of prosecuting a “ridiculous and trumped up” case.

Sometime in the next few weeks, Ortiz is expected to go before the U.S. House Committee on Oversight and Government Reform to answer tough questions about the way her office handled the Swartz case, a prosecution that has already done much to tarnish the image of the woman The Boston Globe named its “Bostonian of the Year” in 2011.

That honor, based in large part on the public corruption convictions of former Boston City Councilor Chuck Turner and former House Speaker Salvatore DiMasi, raised her public profile to the point that she was rumored to be a possible contender for U.S. Senate or governor of Massachusetts.

Then Swartz hanged himself in his Brooklyn, N.Y., apartment.

In a meeting with staffers just days later, Ortiz said it had been the worst week of her life, according to several sources.

Critics say other prosecutions raise similar concerns about Ortiz’s hands-off leadership style, overzealousness, judgment and use of discretion.

But for all the publicity surrounding the Swartz matter, a number of lesser-known cases handled during Ortiz’s reign have fallen under the radar. An investigation conducted jointly by Lawyers Weekly and WBUR has found other prosecutions that parallel the Swartz case and that Ortiz’s critics say raise similar concerns about her hands-off leadership style, overzealousness, judgment and use of discretion at the grand jury and trial levels.

“My concern with Carmen is that she is letting the assistants run her as opposed to her running the assistants,” said Tracy Miner, who chairs the white-collar defense group at Mintz, Levin, Cohn, Ferris, Glovsky & Popeo in Boston.

“It’s her responsibility to make the final call on whether to file a charge, because she was appointed and she is the ultimate decision-maker in that office,” Miner added. “She should not be simply delegating that authority. And I don’t think there is any question that that’s happening more with her than [her predecessors].”

In a Feb. 13 interview, Ortiz responded to the criticism against her and the office she runs, though she declined to answer questions about the Swartz prosecution because of the upcoming congressional hearing.

She addressed head-on the remarks by Miner, noting that she has met one-on-one with her to discuss some of her cases.

“The fact that Tracy would say that the AUSAs [assistant U.S. attorneys] are running amok or running me, I find that offensive and … a bit preposterous,” she said. “And while I like to run this office as a team, I think people respect my authority and everyone knows that when I need to make a decision, I make the decision.”

Michael Sullivan, who preceded Ortiz as U.S. attorney, said criticism about her leadership style does not match up with the Ortiz who worked under him as an assistant for eight years.

“Carmen Ortiz is no shrinking violet,” said Sullivan, who now practices in Boston. “I think she can stand up to the best of them in that office … but I’m just not close enough to the office to opine whether or not that is happening.”

Over the past few years, judges have come down on Ortiz’s prosecutors repeatedly, either by granting Rule 29 motions for acquittals or issuing opinions that are highly critical of the conduct of the U.S. Attorney’s Office.

For lawyers, the trend raises serious and troubling questions.

“Maybe it’s a coincidental bubble of bad results, but this pattern of cases, I think, would raise a question in most anyone’s mind about whether it’s really time to do some inventorying of what the office is all about and about the quality of the product coming out of there,” said Springfield lawyer John Pucci, an AUSA from 1984 to 1994, which included a four-year stint as a supervisor.

Pucci, who served on the selection committee that recommended Ortiz for the post, said it is fair to hold her feet to the fire.

“She sought the position. She sought the power. And with it comes the responsibility,” he said.

Ortiz, meanwhile, disputes that her office has been on the losing end of an unusual number of Rule 29 motions and called the sample of cases reviewed for this story too small.

“We do hundreds and hundreds of cases. We indict over 400 cases a year, and then we have all the pending cases in the pipeline,” she said. “To tell me that, in these handful of cases that resulted differently, considering the hundreds of cases that we handle, I don’t see that as a real pattern.”

The Case Of Lawyer John Nelson

Miner was not always an Ortiz critic. Like Pucci, she served on the 12-lawyer selection committee appointed by U.S. Sen. Edward M. Kennedy that recommended Ortiz as one of three finalists for the job.

But Miner said Ortiz’s run as U.S. attorney has proven to be a “disappointment” due in part to her lack of prior supervisory experience as an AUSA and Middlesex County prosecutor.

“She had a good reputation as a line agent, but it didn’t translate up,” Miner said. “Carmen does not make independent decisions.”

A former federal prosecutor who worked alongside Ortiz for several years and did not want to be identified for fear of reprisal said Miner’s assessment is spot on.

“She is totally hands off and defers to her staffers more than any other U.S. attorney I have seen,” the lawyer said of Ortiz. “There are some [AUSAs] who have been in the office for a long time who have developed these little fiefdoms and are basically able to push her around. That’s just wrong for a whole host of reasons.”

One of those reasons, according to Miner, is that line prosecutors have an incentive to return indictments to keep their numbers up and often lack perspective when assessing the strengths and weaknesses of their own cases. It is the job of the U.S. attorney and her hand-picked supervisors to question the decisions of the AUSAs and to set the tone for the office.

“You can ruin someone’s life by just charging them,” Miner said. “Was there a gain to the defendant or a loss to the government? Is this a crime society cares about? Not all crimes are created equal.”

It was precisely that judgment Miner found lacking in the case of one of her clients, John Nelson. Ortiz’s office charged Nelson, a lawyer, with 23 counts of wire fraud and six counts of unlawful monetary transactions in 2010.

“There was no question that fraud was going on, and mortgage fraud is something we should go after,” Miner said. “But instead of taking the hard case against banks, [the U.S. Attorney’s Office] tried calling the banks the victims and they picked the closing attorney” to indict.

It was clear from the documents that the prosecution against Nelson could not be supported, according to Miner. But she said speaking with the prosecutors in the case was like talking “to a wall,” a phrase a number of others interviewed for this story (including some of the lawyers involved in the Swartz matter) used to describe the experience of dealing with Ortiz’s office.

The Nelson case went to trial last September, with the Quincy practitioner facing the possibility of a lengthy prison sentence.

During cross-examination, Miner asked the government’s cooperating witness to identify the other participants involved in the alleged scheme, by first and last name.

“He wasn’t going to rat on his friends. He told me in front of the jury: ‘That’s my world, honey,’ ” Miner recounted. “I looked at the jury and thought: You know what? They’re not going to believe a word this man says.”

Miner never got to find out what the jurors believed. Before the case reached them, U.S. District Court Judge Joseph Tauro granted a rare Rule 29 motion for acquittal. What made the ruling even more surprising was that it was based on a credibility finding, with Tauro concluding that no rational jury could believe the witness.

“For a judge to say the witnesses are so bad no one can believe them is extraordinary,” Miner said. “That’s the only case I’ve ever seen.”

Ortiz said Miner’s recollection of the case is off and that Tauro never specified his grounds for granting the motion.

Regardless, the notion that a prosecutor would spend nearly two years preparing a case for trial and still put a witness like that on the stand is mind boggling, said Pucci, a self-described “very close observer” of the U.S. Attorney’s Office for more than 25 years.

“Part of the preparation is anticipating those questions, putting them to the witness, getting the answers, and understanding how they play out and fit into your case,” Pucci said. “If the witness in prep won’t answer the questions, you’ve got a significant problem on your hands, and you got to solve it. But the solution isn’t to go to trial and let him get on the stand and refuse to testify. That’s not justice, and that’s not the answer to that problem.”

Stryker Biotech And Questions Of Trial Prep

Like the Nelson case, the 2012 prosecution of Stryker Biotech raised questions about trial prep at the U.S. Attorney’s Office.

The government alleged that Stryker, a Hopkinton-based medical device company, and several of its salesmen had defrauded seven surgeons.

Stryker’s lawyer, Brien O’Connor of Ropes & Gray in Boston, told jurors in his opening last January that the government’s legal team had committed a “gross injustice” by failing to interview even one of the doctors prior to trial.

“Ladies and gentlemen, they may not have talked to [them], but we did,” O’Connor said at the start of what was expected to be a six-week trial. “And because of that, you’re going to get to hear [their] side of the story.”

It never got to that point.

In a case that is still being talked about by members of the state’s tightly knit federal criminal defense bar, the trial fell apart the day after O’Connor’s opening. Susan Winkler, chief of Ortiz’s Health Care Fraud Division at the time, dismissed all but one misdemeanor count against the company.

O’Connor, a former federal prosecutor himself, declined to comment for this story, but he told Lawyers Weekly last year that the case was unlike any other:

I honestly never expect to see what happened here ever happen again in my lifetime. You had a case that had been worked up for over three years by the government, where there had been a ton of back and forth over every little detail. Yet it all came crashing down right at the start, in part because the prosecutors left themselves open and very vulnerable by not doing their homework.

Two months later, Winkler was replaced as chief. An internal email sent to Ortiz’s prosecutors stated: “After seven remarkably successful years as chief of the health care fraud unit, Susan Winker has decided to return to what she loves best about her work here. Prosecuting complex, challenging cases as a line AUSA.”

Northeastern University School of Law professor Daniel Medwed said it is shocking that a federal case could get out of the grand jury, let alone go to trial, without the prosecutor speaking to the alleged victims. The episode raises concerns about whether there are adequate checks and balances in the office, he added — something many critics of the Swartz prosecution noted as well.

“One of the jokes in New York is that they would indict a ham sandwich,” he said. “Well, here in Massachusetts, it seems a federal jury doesn’t even need the protein. It seems it would take only a couple of loaves of bread, given how flimsy and un-nutritious these cases were.”

Ortiz said that when the Stryker case was brought to her attention, she acted quickly to rectify the matter, a point on which many of the defense lawyers involved in the case agreed.

“I made what I thought was a very difficult decision, but a fair and right decision, which was to dismiss the charges,” she said. “I could have [said], and I think others in my seat would not have been wrong to say, ‘Let the jury decide.’ ”

Going After GlaxoSmithKline Attorney Lauren Stevens

Before Stryker Biotech, there was Lauren Stevens, an in-house attorney for GlaxoSmithKline accused of obstructing a Food and Drug Administration inquiry into whether the company improperly introduced an off-label drug into interstate commerce.

Ortiz’s office alleged that Stevens, who was represented by O’Connor, made false statements and withheld information in her dealings with the FDA.

The case against Stevens was initially dismissed based on an improper instruction provided to the grand jury. Ortiz’s lawyers responded by re-indicting and moving for trial in Maryland.

But in a strongly worded decision, U.S. District Court Judge Roger Titus granted a Rule 29 motion, concluding that Stevens never should have been charged. Titus added that attorney-client privileged documents turned over by a magistrate judge in Boston were improperly provided to the prosecution.

“I take my responsibility seriously,” the Maryland judge said. “I practiced law for a long time and made a number of Rule 29 motions. … In my seven and a half years as a jurist I have never granted one. There is, however, always a first.”

Ortiz said her office knew the case was challenging but has no regrets in bringing it.

“We felt that, given this was a lawyer in the company who had given false information, … we should bring this,” she said. “I think that case should have gone to the jury, and then we would have had a better understanding as to what would’ve happened in that proceeding.”

But Stetson University Law professor Ellen Podgor, who has written about the Stevens case, said Ortiz’s decision to go after an in-house lawyer for something short of a large-scale fraud was concerning.

“This case took everybody aback in the sense that why were they prosecuting this and going after a corporate counsel?” she said. “I considered it to be something like a discovery violation that should be resolved in the civil arena.”

Solomon Wisenberg, a Washington, D.C., lawyer who served as an independent counsel in the Whitewater/Lewinsky investigation, said the Stevens case caught his attention when he learned that U.S. Attorney Rod Rosenstein in Maryland refused to sign the indictment.

“It’s Massachusetts attorneys, but they are bringing it in Maryland for whatever reason,” Wisenberg said. “And for the U.S. attorney in Maryland, who is extremely well respected, to not sign it said quite a bit to me.”

A Rosenstein spokeswoman said the office had nothing to do with the Stevens case and referred requests for comment to the U.S. Department of Justice. A DOJ spokesman declined to confirm whether Rosenstein refused to sign the indictment.

Wisenberg, a former chief of the Financial Institution and Health Care Fraud Unit in the U.S. Attorney’s Office for the Western District of Texas, said part of Rosenstein’s hesitation stemmed from the fact that Stevens is a lawyer who was operating on the advice of counsel and providing information to the government on a voluntary basis, not under subpoena.

“Those were signs that should have given somebody pause that was thinking of indicting her, that this was not a winner of a case,” Wisenberg said. “The fact that the powers that be in Massachusetts didn’t arrive at that conclusion is quite telling, particularly in light of the questions being raised in Swartz.”

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