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Government Misconduct Blog – Holder Defends Prosecutors’ Misconduct

by Joshua L. Solomon

At a Senate Judiciary Committee hearing last week, Attorney General Eric Holder defended the prosecutors’ conduct in the prosecution of Aaron Swartz, calling the manner in which plea negotiations were handled a “good use of prosecutorial discretion.”  The questioning of Holder arose, of course, from the widespread criticism of the way in which the prosecution was conducted by the Office of United States Attorney for the District of Massachusetts Carmen Ortiz.  The prosecution forced internet activist Swartz to choose between a guilty plea and exercising his constitutional right to a trial, which would have exposed him to the possibility of a lengthy prison sentence if convicted.  Swartz ultimately committed suicide, avoiding that choice.  Holder justified his subordinates’ conduct on the ground that the plea offers called for prison time of only up to six months, claiming at one point that there was “never an intention for him to go to jail for longer than a three, four, potentially five month range” (Holder’s testimony has been posted by C-Span, with the exchange concerning Swartz starting at around 39 minutes into the video).  Holder even went so far as to criticize media coverage that raised the possibility of decades in prison.

Compared to the widespread coverage of the Swartz case generally, this disturbing defense at the highest level of the Justice Department was relatively lightly covered.  But more concerning than the fact that Holder is standing by his prosecutors in this matter is his willingness to do so by distorting what happened.  “Never an intention for him to go to jail” for more than a few months?  Here’s a line right from the press release that Ortiz’s office put out following the Swartz indictment:  “If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million”.  Is there really any doubt that an official statement about facing 35 years in prison gives the government unfair leverage in plea negotiations?  The constitutional right to go to trial is unquestionably burdened when prosecutors publicly threaten the severest of consequences should a defendant chose to exercise that right rather than accepting a guilty plea.

Holder’s defense of the government misconduct here also fails to appreciate that cases do not end with plea offers.  If a defendant wishes to put the government to its proof, the plea offer, of course, goes away.  A defendant who chooses to exercise his constitutional right to go to trial cannot count on a judge doing what Judge Woodlock recently did.  Contrary to Holder’s testimony, a truly “good use of prosecutorial discretion” would involve not just refraining from such inappropriate threats, but often also involves a decision not to charge or to charge something less than what broad, vaguely worded felony statutes with severe penalties permit.