Sunday, February 10, 2013

The Death of Aaron Swartz

A few weeks ago, a young man named Aaron Swartz committed suicide. Ordinarily, a 26 year old's death by his own hand would not garner much attention, but Swartz was both a promising young computer programmer (he helped develop RSS feeds) and a criminal defendant in the matter of U.S. v. Swartz [1], accused of illegally connecting a laptop computer to the computer network at the Massachusetts Institute of Technology and illegally downloading more than 4 million documents, which, according to the indictment, Swartz intended to upload to peer-to-peer file sharing networks. The service from which Swartz took the files, JSTOR, charges a fee of upwards of $50,000 to users (typically universities and colleges) for access to the network. Some of the fees collected are returned to the original copyright holders while allowing limited access to the network for MIT students and guests.  

The indictment listed 13 felony charges and Swartz potentially faced decades in prison and $1 million in penalties. In the aftermath of his death, his advocates pointed to the heavy handed tactics of the U.S. Attorney's (USA) office in Massachusetts, suggesting that the stress and pressure applied by the USA drove Swartz to kill himself. Others suggested that the tactics employed by the USA were politically motivated and that the office sought to make an example of Swartz.  While Swartz's death was certainly tragic, the lily gilding done by those who rose to his defense in the wake of his suicide conveniently omitted some critical information.

First, Swartz was not an impoverished defendant relying on a wet-behind-the-ears public defender. His lead counsel was Elliot Peters, a former Assistant U.S. Attorney and partner at Keker & Van Nest,  who counted among his other clients disgraced cyclist Lance Armstrong and the Major League Baseball Players Association. Peters' honors and awards are numerous, including being named one of the Top 100 lawyers in California [2]. Peters had an arsenal of legal tools at his disposal to defend Swartz, among them, a lengthy pre-trial motion to suppress critical evidence in the case that was pending at the time of Swartz's death [3]. 

Second, Swartz was offered, and turned down, a generous plea bargain. Namely, a sentence recommendation of between 6 and 8 months in prison in exchange for a guilty plea on the 13 charges. Now I will admit, in plea bargains it is far more common for the prosecutor to knock down many charges to one or two, but if one is pleading guilty, is the number of counts really that big a deal? Would the 6-8 months been any different had Swartz pled guilty to one felony instead of 13? 

Third, even if he went to trial, according to his own attorney the U.S. Attorney's office was only going to seek a sentence of 7 years, far less than what they could have asked for [4]. Oddly, Peters lamented the fact that the sentence recommendation if Swartz pleaded guilty was lower than what it would have been had the case gone to trial (such discrepancies are precisely why pleas are offered); regardless, while the charges against Swartz could have landed him in prison for decades, if his own lawyer is to be believed, the government was not going to ask for a lengthy prison sentence even if they prevailed at trial. 

What we do know is that Swartz had a well-paid and highly experienced criminal defense lawyer who had negotiated what most defendants would view as a good deal. That some think it would have been offensive for Swartz to have pled guilty to crimes he did not think he committed, or that because MIT decided not to pursue Swartz through civil litigation the government should have dropped the case, are frankly beside the point. The criminal justice system has its checks and balances. If Swartz believed in his innocence, he had the means to advance that point, and through an attorney with a stellar resume; pre-trial motions afford the defendant to argue that the government has not met its burden in charging him with any (or all) of the charges against him.  Even after a case starts, a defendant can seek dismissal of certain counts (or the entire case) if s/he thinks the government has not met its proofs. A judge rules on these motions and bases those decisions on the law and fact as presented to her. This is the way our judicial system works and to argue that those rules should have been suspended or modified because a bright young computer programmer was being charged is simply not the way things work. 

Swartz retained, as every criminal defendant does, his right to confront his accusers; however, had he done so, he also would have had to accept he might lose and be found guilty- it's something we call "litigation risk" and every person involved in either a civil or criminal case must weigh it when deciding how to proceed. Indeed, litigation risk is largely why 90% plus of both civil and criminal cases settle (civil) or result in a plea (criminal). While the conduct of the U.S. Attorney's office may have not been what we consider a model of prosecutorial discretion, the reality is that a grand jury heard testimony and returned a lengthy indictment related to the theft of millions of documents (and yes, I'm aware some were later made available at no charge) that did not appear, at least to this reader, to be demonstrably different than what shut down music services like Napster. Weeks before his death, Swartz was offered a plea deal that would have resulted in a very modest prison term (and likely at a minimum security prison) in return for a guilty plea. He turned it down. 

This is not to minimize Aaron Swartz's death. It was tragic and my heart goes out to his family and loved ones; but to assign blame for his death on people whose job it is to charge and prosecute people alleged to have committed wrong doing is also unfair. 


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