We The People

SONY DSCBroken trust leads to feelings of betrayal. Betrayed is the vague feeling I have sought to identify as I have read and thought about the incredibly tragic recent suicide of 26-year-old Aaron Swartz and the speculation that his suicide was the result of an over-zealous prosecution.

Aaron Swartz was a criminal defendant in a federal case because he downloaded massive numbers of academic research articles from JSTOR’s database using MIT’s network. JSTOR declined to press charges, but prosecutors moved the case forward. The main legal grounds for the federal indictments were violations of the Computer Fraud and Abuse Act of 1984 (CFAA).

Many writers have argued and analyzed whether the government ever would have won this case, in other words, whether the actions of Swartz, if proved at trial, would constitute a violation of the CFAA. Many other writers have explained how Swartz was a genius hero, writing computer code at a very young age, developing ways to share that information, and advocating for social justice, in part through providing free access to information. He saw the internet as a way to educate and empower people around the world and was a leader in defeating SOPA/PIPA, the Stop Online Piracy Act and Protect IP Act. Although I am no techie and never heard of Aaron Swartz before his suicide, I am saddened by the possibility that the Law failed him.

Aaron Swartz apparently understood and operated at the frontier of the internet, a place new to the law and lawyers. And lawyers are stewards of the Rule of Law. Our republic is rooted in the trust we the people relegate to our stewards of the Rule of Law. Prosecutors in particular are special stewards of the law with ethical obligations to seek justice, not merely convict. If and when they violate this duty, they break the bonds of trust implicit in a government by the people and for the people. I was struck by this realization again in reading the superseding indictment filed September 12, 2012. The caption reads: “United States of America vs. Aaron Swartz.” We are the United States of America. The prosecutors represent us.

That is why prosecutors are held to a higher ethical standard than lawyers who are not representing the people. The Rules of Professional Conduct set out special responsibilities of a public prosecutor, and the comment to the American Bar Association Model Rule of Professional Conduct 3.8 states, “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” The United States Supreme Court, in a 1935 opinion described the duty of a federal prosecutor:

“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed.” Berger V. United States, 295 U.S. 78, 88 79 L.Ed. 1314, 1321, 55 S. Ct. 629, 633 (1935)

My takeaway from all of the words that I have read on this topic over the past few weeks is that the people do not have confidence that the prosecutor’s obligations were faithfully observed. When that happens, we all are harmed.

Perhaps the bright spot in all of this is that lawyers are advocating for an investigation of the Justice Department’s prosecution. In addition, there is a movement to amend or scuttle the CFAA in favor of laws that better recognize the competing interests of protecting protectable rights, including free speech and copyright law, and reconsider the definition of crimes in the context of our ever-changing technologies. These are tough issues, Gordian knots. And we as lawyers and as concerned members of society must and can figure them out. That is a faithful exercise of our obligation, laid out in the Preamble to the Model Rules of Professional Conduct, to seek improvement of the law and the administration of justice.

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Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

6 thoughts on “We The People

  1. This case is another example of prosecutorial misconduct that has become rampant. I believe it has originate with the “war on drugs” where all techniques were fair in going after drug dealers. Now, those techniques have been mainstreamed in all prosecutions. If one changes the facts and imagines Swartz as a low level drug dealer this would be typical of the technique used to try to force the defendant to flip on a higher-up. Now it’s just standard operating procedure in every case–except for Wall Street and the Housing Bubble.

  2. Dennis Rendleman, I appreciate your response. Your sentiments seem to be trending among those making calls to action to make changes for the better. Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform committee, and ranking minority leader Elijah Cummings (D-Maryland) have sent a letter to the Department of Justice demanding a briefing on why the department chose to so fervently pursue charges against Aaron Swartz. Thanks for sharing your perspective.

  3. Seeing as the one “harmed” declined to press charges, direct harm is mute. Follow the money. Who wanted precedent and high profile?

  4. I don’t know too much about Swartz’ case, but as a prosecutor with over a decade of service, I’d like everyone to keep a few things in mind. The fact that JSTOR didn’t want to press charges is largely irrelevant to whether or not prosecutors were correct in pursuing charges. As Ms. Reardon correctly notes, the case was not “JSTOR v. Swartz,” (in which case, that consideration would be dispositive), but “The People v. Swartz.” In my years representing The People, I have prosecuted a good number of cases in which the victim did not want to proceed, but justice simply demanded otherwise. An easy example that most will be familiar with is the victim of domestic violence who reports the crime, but then becomes uncooperative with efforts to hold the offender accountable.

    The consideration that should matter most to the prosecutor, in deciding whether or not to pursue charges against a person, is whether or not a crime, in fact, has been committed. In every stage, the SA or USA has an obligation to seek out the truth by every lawful and ethical means possible, and if she finds enough evidence to charge, then she should do so; if he does not, then he should not. Other factors, such as how serious the crime was, how much injury caused, how dangerous the defendant is to others and the community, the likelihood of the defendant re-offending, the deterrent needed, etc. are all relevant as to how to resolve the matter after it gets charged. I guess my only criticism of the article is that these issues are barely touched upon, if at all, and these are the most important issues to address in assessing if the AUSAs acted appropriately. At most, they are dealt with in the form of vague speculation and indications that some have questioned the motives and the propriety of the charges.

    Nevertheless, Justice Sutherland’s words are famous in prosecutorial circles for good reason. That sage summation of the prosecutor’s role in the justice system is both a distinction and a duty. Prosecutors need to be ever-aware of the power they hold. For example, the simple act of charging a person with a crime can change that person’s life forever, regardless if the charge gets dropped later. If there is not enough evidence to pursue criminal charges, then a prosecutor should not do so. If a prosecutor abuses that power, or acts unethically in other ways at any point in the process, he should be held accountable (the Duke lacrosse case comes to mind). If, on the other hand, there is enough evidence to pursue charges, then the prosecutor has every obligation to do so, with the same earnestness and vigor of which the good Justice speaks.

    Ultimately, it’s possible for a prosecutor with the best of intentions doing the best job possible to be criticized for his/her decisions (he/she went to hard on this guy or too soft on that guy). Our obligation is to enforce the law, regardless if some believe the law shouldn’t be that way (that’s a different branch of government) and bring justice to every case. That’s why it’s important for prosecutors to always have sincere truth-seeking at the forefront of their minds and to always be cognizant of ethical obligations we have.

    1. Thanks Rod, for your thoughtful comment. Prosecutors have a very difficult and important job. I appreciate your taking the time to share your perspectives, including articulating some of the unique challenges and re-inforcing the importance of truth-seeking and ehtical obligations.

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