Carmen Ortiz, Aaron Swartz Prosecutor, Releases Highly Questionable Statement

Carmen Ortiz, the federal prosecutor on Aaron Swartz' case, is suddenly one of America's most hated attorneys. She released a statement explaining her role in the case, but she probably only made things worse for herself.

Carmen Ortiz, the federal prosecutor in charge of Aaron Swartz case, was no better known than any other federal prosecutor before Aaron Swartz hung himself, and Ortiz is not taking to the spotlight well. After Swartz’ suicide, attention turned immediately to the case Ortiz was prosecuting: Swartz was under trial for having hacked into the scholarly databse JSTOR from the MIT campus and making all of their articles publicly available. Now, Carmen Ortiz has released a statement, offering sympathy and explaining herself. Here is Ortiz’ statement:

January 16, 2013


As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.

I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably... [Rest of paragraph reprinted below]

As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.

This sounds reasonable. A simple “this is a tragedy, but I was just doing my job.” The problem is with this next section, which I pulled out of the second paragraph:

The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.

Ortiz claims here that she felt Swartz crime did not warrant as harsh a sentence as she could have asked for, because he did not personally benefit from it. Even better, right? She didn’t just sympathize with Swartz, that sympathy was strong enough that she sought a shorter sentence, perhaps just six months in a low security setting. So what’s the problem? The problem is that Ortiz is, at best, bending the truth. Ortiz was obviously closer than anyone to the case, so it feels odd to challenge her word here, but consider this article from July 2011, on the Department of Justice’s website:

AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

United States Attorney Carmen M. Ortiz said, “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.”

Carmen Ortiz’ sentiment on Swartz’ crime here is the opposite of what she wrote in her statement. To be fair, those two statements are a year and a half apart, and sentiments can change. But did they? Or is Carmen Ortiz trying to dig herself out of being the country’s most hated federal prosecutor, and in the process, only making the hole deeper?

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