I promise I won’t take too much more time with the MIT review panel’s report on the Aaron Swartz case. But I do want to highlight one section that strongly supports the notion that Swartz was pursued by an overzealous prosecutor. In all the coverage of Swartz’s legal troubles and ultimate suicide—including my long February profile of Swartz, “The Idealist”—lead prosecutor Stephen Heymann has consistently been portrayed as intractable and somewhat vindictive, a man who was set on seeing Swartz go to prison. The MIT review panel’s report just reinforces that impression.
Many people have criticized the report for not unequivocally condemning MIT’s failure to speak out against Swartz’s prosecution, and I understand their criticisms. But I think it’s worth noting the report’s contention that MIT’s silence was at least partially motivated by the sense that a statement might aggravate Heymann and end up making things worse for Swartz.
This wasn’t a small concern. About midway through the report—which you can download here, and which is worth reading in full—the authors spotlight an admission by Heymann to MIT that prompted a legitimate double take when I first read it. In a phone call with MIT’s outside counsel on Aug. 9, 2012, Heymann essentially admitted that his hard-line stance derived in part from the feeling that he had been shown up by Swartz:
The prosecutor said that the straw that broke the camel’s back was that when he indicted the case, and allowed Swartz to come to the courthouse as opposed to being arrested, Swartz used the time to post a “wild Internet campaign” in an effort to drum up support. This was a “foolish” move that moved the case “from a human one-on-one level to an institutional level.”
Nobody should be surprised that prosecutors sometimes let their personal feelings guide their official behavior. But I am surprised that Heymann became so upset over something so minor. In an email today, David Segal, executive director of Demand Progress, an advocacy organization that Swartz co-founded, told me that what Heymann characterizes as a “wild Internet campaign” was actually just a press release and a petition. “Aaron, a friend of his, and I issued a press release telling Aaron's side of the story, and launched an online petition that people could sign to assert their support for Aaron,” Segal told me. The press release was strongly worded, but it hardly rises to Anonymous levels of protest. And while the online petition eventually got 50,000 signatures, a person would still have to be particularly thin-skinned to let an Internet petition get him so upset.
But perhaps Heymann wasn’t upset with the way Swartz contested the indictment so much as with the fact that he was contesting the indictment at all. Here’s another telling excerpt from the review panel’s report:
MIT’s counsel noted that no one at the Institute was looking forward to the time, disruption and stress involved in testifying at hearings and trial. The prosecutor’s response was that it disturbed him whenever a defendant “systematically revictimized” the victim, and that was what Swartz was doing by dragging MIT through hearings and a trial.
What Heymann’s essentially saying is that a defendant’s decision to vigorously contest the charges against him equates to revictimizing the original victim. This is absurd. Mounting a competent defense for your client isn’t some wild, renegade legal strategy. It’s a requirement.
I’m sure it would make prosecutors’ jobs easier if all defendants just threw up their hands and pleaded guilty right from the start, but that’s not the way the justice system works. It is inappropriate for a prosecutor to target a defendant just because that defendant won’t cringe on command. More and more, it’s looking like that’s what happened in the case of Aaron Swartz.