I’ve been following some of the discussions about the prosecutorial conduct that may have lead to Aaron Swartz’s suicide, but I haven’t posted anything about it because it didn’t seem all that unusual, except for the suicide, which is not really all that unusual either. I didn’t initially understand why so many people are heaping verbal abuse on US Attorney Carmen Ortiz for doing what a lot of prosecutors are doing. It took me a while to realize that many of these people were encountering this kind of thing for the first time.
That’s actually pissing off criminal defense lawyers like Gideon at a public defender, who is wondering where all this outrage suddenly came from:
To all of you who’ve been engrossed by the above; shocked by it, angered, even, I say: welcome to the real world. Welcome to the world that’s existed around you for decades, but that you’ve been too blind to see.
Because Aaron Swartz wasn’t special. Not in that sense. He was just like every other criminal defendant that walks through the doors of every courthouse in America: a conviction waiting to happen. He was an opportunity for someone to flex their muscle over; for someone to teach a lesson to; for a system to fail to live up to its promise. Aaron Swartz is no different that the guy who sat in jail for 5 years waiting for a trial, or the guy who was arrested 20 years after the crime and the Supreme Court changed substantive law just to ensure that he was prosecuted, or the guy in whose case the judge texted the prosecutor questions to ask, or the man who refuses to give up his First Amendment rights and keeps getting arrested or the inmate who loses his appeal because his lawyer didn’t file the right paperwork and the courts don’t care, or Ronald Cotton or Cameron Todd Willingham, or maybe tomorrow: you. In the eyes of the law, there was no difference between any of them: their crimes may have been disparate; their rights all the same to eviscerate.
And over at Simple Justice, Scott Greenfield makes a different point about those who want to name-and-shame Ortiz the way she handled this case:
The naive and uninitiated think this is about Carmen Ortiz’s efforts to enhance her political career. There may be an element of self-aggrandizement in here, but it’s puny compared to the bigger issues of overcriminalization, prosecutorial overreaching, fundamental fairness in the criminal justice system. It reduces a problem that has been growing for 50 years, touched tends of thousand of people, made America the largest incarcerator in the world and caused enormous harm to society, to a triviality.
Scott’s got a point here. The problems with our criminal justice system do not begin and end with the prosecution of Aaron Swartz, and Ortiz is not the only only person doing terrible things to people in the name of justice.
On the other hand, this isn’t the only bad thing Carmen Ortiz has done. At the risk of promoting the one-bad-apple myth, I just found out that Ortiz is also the villainous prosecutor in another case I’ve been following. She’s the US Attorney who was trying to steal the Motel Caswell:
At the $57-a-night Motel Caswell in Tewksbury, Massachusetts, just the right amount of wrong is what the federal government says it needs to take the business from the family that has operated it for 57 years.
That amount, it turns out, is tiny. During a recent trial before a U.S. magistrate judge in Boston, a federal prosecutor cited one heroin overdose and 14 incidents in which guests or visitors were arrested for drug crimes at the motel from 1994 through 2008—a minuscule percentage of the 200,000 or so room rentals during that period—to show the business is a “dangerous property” ripe for seizure.
The government is arguing that the hotel’s 69-year old owner, Russell Caswell, knew or should have known about the drug dealing on his property. Of course, as is typical, they’re not actually charging him with a crime. That would require hard work to meet a substantial burden of proof. Instead, they’re just trying to take the motel.
(By the way, for those of you who are unfamiliar with civil forfeiture proceedings: Yes, it really does work that way. They don’t have to prove you’re guilty to take your property. I am not making this up.)
Under federal law, property used to “facilitate” a drug crime is subject to forfeiture. In 2000 Congress added a safeguard aimed at preventing exactly the sort of injustice Caswell faces: An owner can stop a forfeiture if he shows, by “a preponderance of the evidence,” that he did not know about the illegal activity or that, once he discovered it, he “did all that reasonably could be expected under the circumstances to terminate such use of the property.”
Caswell, whose father built the motel in 1955, has not been accused of any wrongdoing, and the local Motel 6, Fairfield Inn, Walmart, and Home Depot have had similar problems with drug activity. But the government argues that Caswell was “willfully blind” to drug dealing and could have done more to prevent it.
So why the focus on the Motel Caswell? Because it’s valuable enough to steal:
This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration who said he read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an “equitable sharing” deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.
Fortunately, Ortiz lost:
In a major triumph for property rights, a federal court in Massachusetts dismissed a civil forfeiture action against the Motel Caswell, a family-run motel in Tewksbury, handing a complete victory to owners Russell and Patricia Caswell. In one of the most contentious civil forfeiture fights in the nation, Magistrate Judge Judith G. Dein of the U.S. District Court for the District of Massachusetts concluded, based on a week-long bench trial in November 2012, that the motel was not subject to forfeiture under federal law and that its owners were wholly innocent of any wrongdoing.
Unfortunately, Ortiz may appeal:
U.S. Attorney Carmen Ortiz said her office is weighing an appeal against a Tewksbury motel owner who criticized her for prosecutorial bullying last week after he won his battle in the feds’ three-year bid to seize his business, citing drug busts on the property.
Of course, this sort of abuse isn’t unique to Ortiz either. And for every millionaire hotel owner they go after, forfeiture operations probably take dozens of homes and hundreds of cars from poorer people. Ortiz did not invent the abuses she is currently being pilloried for. But doesn’t she still have it coming nonetheless?
Update: And now this story is spreading about another case handled by Ortiz’s office:
In the latest setback for Boston’s beleaguered U.S. attorney, red-faced feds admit they may have arrested the wrong man during a massive gang and drug takedown two weeks ago because he looked like someone they wanted, after they were forced to tell a judge there was “sufficient doubt” that he was the suspect.
Again, arresting the wrong person is not that unusual, but that’s still no excuse.
(Hat tip: Reason)