U.S. Attorney Carmen Ortiz Defends Herself

U.S. Attorney for Massachusetts Carmen Ortiz has finally  broken the silence her office kept in the days since internet activist Aaron Swartz’s death. In a statement, issued late Wednesday night, she extended sympathy to Swartz’s friends and family, but defended her office fully. She writes:

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. 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.

Swartz’s family and his many supporters have criticized Ortiz’s office for seeking a punishment disproportionate to the crime. A petition on the White House’s website calling for Ortiz’s dismissal has passed the 25,000 signatures needed to merit a response. When Ortiz’s husband tweeted out a defense of the prosecution, he was met with vitriolic replies and quickly deleted his account.

That’s not to say Ortiz is utterly alone in her defense of her prosecutors. GW Law Professor Orin Kerr wrote a lengthy post this week arguing that the charges brought against Swartz aligned with a reasonable reading of the law. In the Globe, columnist Joan Vennocchi echoes Kerr in defense of the prosecution:

When a citizen takes actions that break standing laws, there can be consequences, no matter how wrong the laws may be. Remember “Letter from Birmingham Jail,’’ composed by Martin Luther King Jr. after his arrest for protesting racial segregation laws? King wrote: “One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty…”

Those are both just seeming blips in a vast canvas of family, friends, admirers, and opinion-makers suggesting the U.S. Attorney’s office got ahead of itself, but it does seem that Ortiz and her defenders are digging in.