With backing from the late Ted Kennedy, Carmen Ortiz became the first Latina US attorney in Massachusetts. She was sworn in by Eric H. Holder Jr., the nation’s first black attorney general, before hundreds of applauding judges, dignitaries, and lawyers.
Today, those throngs of delighted supporters are gone as Ortiz faces harsh scrutiny for prosecuting Aaron Swartz, a 26-year-old Internet activist who died last month from an apparent suicide. A House committee is investigating whether prosecution of Swartz for allegedly using computers at MIT to gain illegal access to scholarly papers went too far, as family members charge.
Kennedy died in 2009, and no one else in the Bay State power establishment is rushing to defend the beleaguered Ortiz. But this controversy is bigger than Boston, anyway. To survive, Ortiz needs Holder, the man she met years ago as a law school intern, to stand behind her. How much she can rely on him is uncertain, given the political heat the AG has already taken for some of his own judgment calls.
Massachusetts Governor Deval Patrick went from dropping her name as a potential gubernatorial candidate to ducking comment about the controversy that embroils her. Elizabeth Warren, the Bay State’s newly minted senior senator, described Swartz as a person who “wouldn’t hurt a fly” and said his acts demonstrate a “powerful commitment” to a better society.
Two Bay State congressmen — John Tierney and Stephen Lynch — sit on the House committee that is looking into the Swartz prosecution. Tierney is an unlikely ally, given that the federal prosecution of his wife for aiding the filing of false tax returns nearly cost him his seat last November. Lynch, who just announced he is running in the special election to fill John Kerry’s Senate seat, also has little to gain from backing the prosecution.
Swartz, a prodigy, was part of an international activist moment that believes that information on the Internet should be free. His cause is embraced by a powerful circle of friends and influential defense lawyers who are aligned against Ortiz.
Reasonable people can disagree about overreach and whether Ortiz pushed too hard in this case. She certainly could have done a better job of defending herself. But given all the celebration over her appointment, the extent to which she has been vilified seems unfair.
In comments at a Washington memorial service, US Representative Darrell Issa, the California Republican who chairs the House committee, charged that Swartz’s prosecution “had to do with ambition.” If true, it surely wouldn’t be the first time self-interest figured into a prosecutor’s case.
Swartz’s family members are urging passage of legislation that would soften some Internet laws, and that makes sense. Meanwhile, the attacks against Ortiz basically ignore the law as written and the sentence frameworks already passed by Congress. Prosecutors take the law as they find it and execute it. Granted, they have great discretionary powers. But is it fair to make Ortiz the scapegoat for a decades-long pattern of federal prosecutorial sentencing authority, granted to them by the same elected body that is now investigating her?
The attacks against Ortiz also overlook Swartz’s mental state. For all his brilliance and promise, Swartz suffered from depression that he documented in blog posts that predate the criminal case against him. Of course, his death is a tragedy, but to say the government “killed” him is extreme.
It must be confusing for Ortiz. One moment, the Globe is naming her “Bostonian of the Year” for bringing former House Speaker Salvatore DiMasi to justice, and praising her role in “successfully pushing for lengthy prison sentences and aggressively defending prosecutors’ motivations.” Today, commitment to those same principles motivates harsh criticism of her.
If she does survive politically, there are lessons to be learned. One concerns the fickleness of the media and the proliferation of fair-weather friends. The more important lesson is the need for career prosecutors like Ortiz to understand the implications of their actions.
The power invested in the government makes it easy for prosecutors to swing a heavy sword. When it swings back at them, as tragically as it did in this case, they feel the pain and suffer the slings or silence from their peers.