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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  • http://www.facebook.com/bkort Barry Kort

    “This is an adversarial system. This is a tough business.” ~Carmen Ortiz

    The product of an adversarial system is adversity.

    The product of the system is supposed to be justice, but the system is producing instance after instance of injustice — injustice so troubling and egregious that a seasoned judge has excoriated the USAO for repeated lack of good judgment.

    Two of the most prominent law schools in New England are those of Harvard and Yale.

    If you look at the crest of Yale University, you will see two Hebrew words: Urim v’Thummim.

    Urim v’Thummim are the essential constituents of good judgment.

    Urim, [literally "lights"], means brilliance, insight, mindfulness, thoughtfulness.

    Thummim, [literally "perfections"], means empathy, compassion, mercy, grace, beneficence.

    These two qualities are essential requirements of a powerful government leader who is obliged to exercise good judgment.

    • matt p.

      Mr. Kort needs to look up what adversarial system actually means. It shares some of the same letters as adversity but does even come close to what adversarial system means. Don’t cherry pick letters out of a sentence to make an inaccurate point. The other part of the Yale University logo is lux et veritas, meaning light and truth. That’s Ms. Ortiz’s job. And she does it very well. She puts everyone without discrimination to the fire…

  • callmebc

    The problem may go beyond Ortiz: there seems to be an overall pattern of fumbling, or even punting, when dealing with tough prosecutions against well-lawyered and wealthy adversaries, and then trying to compensate by overly aggressively going after the not so well-lawyered and wealthy. While there has always been an imbalance in how the same laws affect the wealthy and the poor when it comes to civil matters, it seems to have gotten substantially worse the past decade or so. Indeed a report from 2011 by the World Justice Project compared nations on accessibility of civil justice, and the U.S. ranked 11th out of 12 countries in North America and Western
    Europe. Among high-income nations worldwide, the U.S. ranked 20th of 23.
    Among its high-income peers, the U.S. beat out only Italy, Croatia and

  • Reasonable?

    The prosecutors job is to pick select case and win them.

    The judge’s job is to determine whether the law is being applied fairly.

    If the prosecutor has such a wide selection of ‘legal tools” that the application seems capricious, the problem is too many tools. Limiting the the legal tools that can be used the job of the legislature.

    It seems we are framing a system problem (too many laws that serve as valid basis for prosecution, but seem “unjust”) as an individual issue (an overly aggressive Attorney’s office).

    We should not expect the prosecutor’s office to exact the functions of a judge or legislature. What about the rule of law?

    • http://www.facebook.com/bkort Barry Kort

      The Rule of Law is inherently dysfunctional at its roots.

      If we want to craft a peaceable and orderly society, the Crime and Punishment Model is functionally incapable of yielding that outcome because the primary tool of law enforcement is state-sponsored violence under the color of law.

      The machinery of the government tends to be iatrogenic, perpetually reseeding and amplifying the very problems that governments were originally designed to solve.

      • Reaesonable?

        If the rule of law of dead, we have a much bigger problems than the prosecution of the Federal Attorney’s office.

        Ortiz is a scapegoat for our laziness as citizens.

        It’s far easier to blame an individual than repairing the system that we the people are responsible for.

        • http://www.facebook.com/bkort Barry Kort

          Scapegoating one or two high-profile individuals in the DoJ isn’t likely to solve the problem of pervasive systemic injustice.

          Injustice is but one of ten big unsolved problems in our culture. The other nine are conflict, violence, oppression, corruption, poverty, ignorance, alienation, suffering, and terrorism.

          All ten of these hellish problems have something in common. They tend to reseed themselves, round-robin, from one instance to the next, in a never-ending cycle of recursion.

          Systemic problems call for a systems approach to problem-solving. That’s not going to happen until we elevate our problem-solving skills to near-genius levels.

          I would like to see President Obama convene a national problem-solving congress, staffed with the best and the brightest systems thinkers our society has to offer, to systematically address, analyze, and solve the interlinked systemic problems of conflict, violence, oppression, injustice, corruption, poverty, ignorance, alienation, suffering, and terrorism.

          Nothing short of that will restore my long lost faith in the system.

          • http://www.facebook.com/dennis.boylon Dennis Boylon

            “I would like to see President Obama convene a national problem-solving
            congress, staffed with the best and the brightest systems thinkers our
            society has to offer”
            No offense. You make a sensible case about the problems. The solution is to look withing our system to solve our systemic problems? I’m pretty confident this solution will only lead to more dead and jailed poor people.

          • http://www.facebook.com/bkort Barry Kort

            Perhaps you failed to apprehend my proposal. Convening a problem-solving congress with world-class systems thinkers is an idea that lies outside of our existing system of government, with the possible exception of NASA. You will note that NASA operated as a high-functioning organization that had nothing to do with arresting people and putting them in jails.

          • http://www.facebook.com/dennis.boylon Dennis Boylon

            You are asking the president to convene it which means it would be instantly politicized and used to kill and jail more poor people. NASA hasn’t done anything worthwhile in decades. If they ever did.

          • http://www.facebook.com/dennis.boylon Dennis Boylon

            You are asking the president to convene it which means it would be instantly politicized and used to kill and jail more poor people. NASA hasn’t done anything worthwhile in decades. If they ever did.

          • http://www.facebook.com/bkort Barry Kort

            Evidently you failed to apprehend the concept of a conclave of systems thinkers addressing and solving a systemic problem. The systemic problem at hand is the epic malfunction of our traditional system of justice.

            Our existing system of justice operates on the second through fourth rungs of Kohlberg’s Ladder. That’s why it’s failing. We need to advance our system to the fifth rung, which would eliminate the dysfunctional practices that you and I both agree are anachronistic, abhorrent, atrocious, and scientifically indefensible in this day and age.

          • http://www.facebook.com/dennis.boylon Dennis Boylon

            I understand what you are getting at. I just don’t see the president of the United States allowing a “conclave of systems thinkers” to address a systemic problem. When was the last time a systemic problem was solved because our political leaders in DC acted in the country’s best interests. Throwing people in jail is largely a popular thing. Can you imagine the opposing political party response? He wants to put more criminals on the street!

            In nearly every case the status quo is comfortable for our politicians. It gives them easy sound bites to trumpet during election season. Health care? The War on Terrorism? Politics trumps reality in all the big problems of our day. From a statistical standpoint how many Americans have died from “terrorism” in the last 20 years. The CDC collects data and puts out a report on the causes of American deaths. Terrorism is no where to be found of course. From a statistical standpoint the threat of terrorism is practically non existent. Heart disease, Cancer, Accidents (mostly vehicle involved), Prescription drug overdose, drug resistant infections, poor hospital care, etc… have killed millions. The fact that an enormous amount of resources (financial and human) is being focused on a non existent problem really makes me wonder what the point of it all is. Is our system of government designed to solve problems or is it designed to exploit and fleece the general masses.

  • http://www.facebook.com/futo.buddy Futo Buddy

    how come she could not find any bankers to charge with crimes?

    • CPO_C_Ryback

      Yeah, why doesn’t Eric Holder (D) go after this bum (D)?


      Is it because EH (D) and OweBama (D) — after jacking-around Bob Woodward — are preparing for the first of 20+ special prosecutors?

      And will one of those special prosecutors investigate how Harvard (D) hired fake American Indians (D), to grab more taxes (D)?

  • gorilla monsoon

    Her or her staff’s harrasment of Swartz is a disgrace. Maybe they should be charged with murder.

  • clodene

    The extreme attack on this person is embarrassing considering the way Wall Street and the big banks keep getting slaps on the wrist.

    • Concerned Citizen

      I agree, I know USAof MA and she is not a headline grabber or a zealot. She is not out for political gain or fame. There are checks and balances in the system and if a judge feels a case should be dismissed they option exists.

    • gorilla monsoon

      But this lady witch is here and hurting people in our own communities. Lock her up and throw away the key.

  • X-Ray

    Would the prosecutor’s zeal be applied to Politicians who not only lie,
    cheat and steal to line their own pockets, but they degrade and destroy the
    fabric of our society.

  • public_servant_watch

    Carmen Ortiz has plenty of people she can prosecute who have committed computer crimes—they work in the federal courts and they use the computers provided to them by the tax payer to enter bogus documents and obstruct justice in collusion with corrupt outside attorneys. Ortiz claims that she is a strong advocate of people with disabilities but she took no action against CORRUPT Magistrate Judge Leo T. Sorokin who fraudulently dismissed a case of which he had no legitimate jurisdiction and purposefully blocked the case from the US District Judge; he even went so far as engaging in identity theft of a US District Judge by scanning the fraudulent opinion before entering it into the PACER system to mask the PDF properties that would show the document signed with the US District Judge’s name did not come from the US District Judge. Ortiz also had no problem with corrupt court staff and corrupt attorneys switching files in the Electronic Filing System. She also had no problem with corrupt court staff over at the First Circuit using computers provided by the tax payer to obstruct justice by entering fraudulent docket text denoting a judicial panel assignment at a time after they had already rendered a fraudulent judgment essentially stealing a disabled person’s filing fee through dishonest service fraud. Because of no action taken by the DOJ the same corrupt maneuver that happened with the Writ happened again with the appeal. THE PROSECUTION OF AARON SWARTZ WAS RISK MANAGEMENT SO THAT CORRUPT PRACTICES COULD CONTINUE IN THE FEDERAL COURTS! Aaron’s PACER download and advocacy in making the PACER documents free to the public where all the bogus crap entered by corrupt court staff would be exposed was a problem. Further, Carmen Ortiz needs to take a look at her own staff and explain why a millionaire’s criminal case has been dragged on for over ten years with a bogus document rendered allowing for a new trial (2nd time) which was appealed by the USA but not even an order by USCA1to file briefs with the case stagnant since 10/2011. What an aggressive US Attorney!! The USA believes a crime was committed and the case goes stagnant. Hmmm!!! Just sayin and mere allegations until proven in a court of law of course but hey corrupt attorneys, corrupt AUSA and corrupt court staff never get charged so therefore there will never be a court of law. Have fun with tax day coming up fellow SERFS as the corrupt carry on with their private money making party in OUR federal courts!!! http://www.scribd.com/tired_of_corruption

  • suzyf921

    Now THAT is journalism!! thank you to both Davids for picking up this story and doing such a great job. Luckily we still seem to have a free and dogged press corps!

  • BernardKingIII

    The fact that US Attorneys are not talking to the victims shouldn’t come as a surprise to anyone – half of the crimes they prosecute, e.g. drug crimes, have no victim at all.

    This is all part of the path that every socialist/interventionist government takes, as Hayek famously noted, on The Road to Serfdom. Until law enforcement returns to a role that is focused on defending citizens against injury from fraud and violence (and not social engineering), the misguided judgment of attorneys like Carmen Ortiz will continue growing in both frequency and perversity.

    • http://www.facebook.com/bkort Barry Kort

      How can the System of Law protect society from the depredations of deception and violence when the process of legislation is rife with deception (included copious self-deception), and the process of law enforcement relies, as its principle tool, on the systematic application of violent force and punitive sanctions under the color of law?

      • BernardKingIII

        From a logical perspective the answer is simple: restrict the power of the government in accordance with the non-agression principle; from a political perspective, however, implementing this solution is (for the moment) virtually impossible.

  • Mike Johnson

    She was probably Peter-principled out 15 years ago as an administrator. Swartz was bullied and harrassed..to death. If I was a family member I’d already have filed suit.

    • http://www.facebook.com/bkort Barry Kort

      At least one expert has privately characterized the Swartz case as an example of Legal Abuse Syndrome (a variety of PTSD).

  • Ranjelin
  • Accused

    It is a screwed up system. Large number of cases decided by ” Plea deals”. Innocent people accepting conviction under Prosecutorial threats of lengthy prison terms and defendents piling up large legal bills. Many cases of Ortiz’s office of harrasment of people and businesses of the Bay State have come to light. She and all her staff need be tried.

  • http://www.facebook.com/jeffrey.v.andrade Jeffrey V. Andrade

    What a great story! It fleshed out the miscarriage of justice in the handling of the Swartz case with other questionable overreaching in other cases to show a pattern of prosecutorial abuse by Ortiz and her minions, abuse that even the DOJ in Maryland couldn’t support. Why is this woman still employed by the DOJ?! Not even a reprimand?
    She complains that this is the worst week of HER life? What about Aaron Swartz’s life? Do you think MAYBE just MAYBE it was worse for him?

    • http://www.facebook.com/bkort Barry Kort

      These cases illustrate more than an occasional miscarriage of justice. They illustrate a deeper and more systemic problem — the malfunction of the system of justice.

      • http://www.facebook.com/dennis.boylon Dennis Boylon

        Ortiz probably isn’t unique.

        • http://www.facebook.com/bkort Barry Kort

          In an article on Ars Technica, yesterday, Timothy B. Lee writes:

          “[Attorney General Eric] Holder is correct that the government’s treatment of [Aaron] Swartz was not unusual. The government routinely uses the threat of a long prison sentence to pressure defendants to waive their right to a trial. If [Senator John] Cornyn wants to avoid a repeat of the circumstances that impacted Swartz leading up to his death, he will need to champion a sweeping reform of the criminal justice system.”

    • gorilla monsoon

      I will say again, lock her up and throw away the key. She is a loathesome,conceited fool. And she has the nerve to say she had a bad week.

  • Peter Combs

    Abuse of power plain and simple…its all about proportionality and common sense. This is pretty clearly a case of a prosecutor with a very convoluted view of the Justice system..reminds me of the cases in Texas years ago where they gave out 20 year sentences for possession of a single joint..

  • Monica G.

    She had the worst week of her life? She should ask Aaron’s parents and girlfriend about their weeks since Jan.11…
    Maybe I am not getting it right, but I think the main purpose of the justice system is to protect the society from harm, rather than punish people. So I’m wondering who were they protecting when they indicted Aaron?

  • http://read-write-blue.blogspot.com/ RWB

    The FBI’s files concern Swartz’s involvement in accessing the Public Access to Court Electronic Records (Pacer) documents. In pursuit of their investigation, the FBI had collected his personal information and was surveilling an Illinois address where he had his IP address registered.


  • http://read-write-blue.blogspot.com/ RWB


    Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process — the decision whether to charge a defendant, and with what — is almost entirely discretionary. Given the plethora of criminal laws and regulations in today’s society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in. This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.


  • http://www.facebook.com/bkort Barry Kort

    David Boeri’s 2nd report in his series features the term of art, “breaking a butterfly upon a wheel.”

    That’s a literary reference from Alexander Pope which appeared last month in commentary by Charles P. Pierce writing for Esquire. The phrase is a colorful synonym for “excessive over-kill” amounting to a wasted effort.

    Alexander Pope, who was writing in the 18th Century, could not have known that the butterfly metaphor would one day become associated with the modern branch of mathematics known as Chaos Theory. The irony here is that the butterfly is a creation of an excessive application of some rule (technically a recursion law) over and over in a systematically repeated pattern.

    “Troublesome patterns” like the one highlighted in this story recur in many contexts. In my view, they are often characteristic of deeply rooted systemic problems.

  • http://www.facebook.com/bkort Barry Kort

    Here is the talk (audio and visuals) of Larry Lessig’s brilliant and compassionate presentation to his colleagues at the Harvard Law School on the life and legacy of Aaron Swartz.

    Aaron’s Laws: Law and Justice in a Digital Age

  • Misconduct

    Is the alleged prosecutorial “overzealousness” particular to US Attorney Carmen Ortiz’s office? Or a widespread problem among US and District Attorneys/law enforcement officialsin general?

  • Misconduct

    Also, at what point in US Attorney Carmen Ortiz’s investigation did she offer Aaron Swartz (supposedly) a much-reduced prison sentence of 6(?or more/less?) months?

    Why was Ortiz unwilling to remove the “felony” charge against Swartz? Being a felon supposedly was what Swartz felt so strongly against, regardless of any reduction in prison sentence.

    Who led the Swartz investigation under Ortiz?

  • IskenderElRusi

    God, what a disgusting, shameless hypocrite! Just to think that our state could end up with Carmen Ortiz as the Governor… this woman, as well as her hangman Stephen Heymann should be removed from the legal system and never be allowed even close to it. Carmen, you should keep the company of Mike Nifong and other equally honorable jurists!

  • Forrest Cahoon

    This is a fascinating report, and seems to point to real problems. What I want to know, though, is how Ortiz stacks up to other federal prosecutors. Is her office the maximum in percent of Rule 29 dismissals? If so, by how much? Some baseball-card like stats here would help put her office’s performance in perspective.

  • http://www.facebook.com/dennis.boylon Dennis Boylon

    “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.’ ”

    Yes. She is certainly good at making firm decisions. LMAO

  • http://www.facebook.com/bkort Barry Kort

    From The Volokh Conspiracy today:

    From: Barry Kort
    To: Orin Kerr • an hour ago

    See this report from Massachusetts Lawyers Weekly, as reported on WBUR …

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

    From: Orin Kerr <Conspirator>
    To: Barry Kort • 33 minutes ago

    Yes, I saw it. Poor journalism, in my view, but I realize that I am not starting with my conclusion and reasoning backwards.

    From: Barry Kort
    To: Orin Kerr • 4 minutes ago

    I understand Ms. Ortiz will be appearing before Darrell Issa’s committee. Perhaps that event will also produce some atrocious journalism as well.

  • http://www.facebook.com/people/Ronald-Miller/1603161194 Ronald Miller

    As someone who has dealt a great deal with government attorneys, talking to a wall is the norm. U.S. Attorney’s Offices are filled with folks that have forgotten that their job is not to win, it is to make sure justice is done. Look at the office in Anchorage and its handling of the corruption investigation involving Sen. Stevens. And look at the D.C. office and how it did with the actual case agains Stevens. Many lives are ruined each day by these people who seem to be only looking for a headline to advance their career. FYI: there is no punishment for a government atty who intentionally provides a court with false testimony or intentionally withholds evidence, beyond having the case tossed out. Why?

  • Rudravrata

    She needs to be tried and hanged for murder before she destroys more lives that are more productive and precious than hers.

  • James Lookretis

    Unqualified,political nepotism.

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