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Aaron Swartz prosecutor accused of 'professional misconduct'

Lawyers claim he hid evidence and abused plea bargaining

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The legal team acting for now-deceased internet activist Aaron Swartz has filed an official complaint with the Department of Justice alleging two counts of professional misconduct by Assistant US Attorney Stephen Heymann in his handling of the case.

Heymann knowingly suppressed evidence that could have been used to dismiss the case against Swartz, the complaint claims, and broke sentencing guidelines by attempting to coerce Swartz into giving up the right to a jury trial and accepting six months in jail – under the threat of a seven-year sentence request if he refused.

Swartz, who as a teenager helped write the RSS standard and later cofounded Creative Commons and the Reddit online community, was arrested on January 6, 2011 after he was found using MIT's computer network to download 4.8 million research papers from the JSTOR archive. The academic papers are from publicly-funded research and the government recently announced they are to be made freely available to the public in the future.

Neither MIT nor JSTOR was interested in pressing charges over the matter, but the DOJ wasn't so sanguine and prosecuted the case, adding charge after charge until Swartz was facing 13 separate counts that could have put him behind bars for 35 years and left him with over a million dollars in fines. Swartz, who had battled with depression most of his life, hung himself in January before his case came to court.

"Aaron's death is not simply a personal tragedy," his family said in a statement at the time. "It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts US Attorney's office and at MIT contributed to his death."

The new complaint says that at a hearing in December to dismiss the case, Swartz's lawyers argued that the Secret Service waited 34 days after seizing Swartz's laptop and memory sticks before getting a search warrant and checking out the contents. This would make any evidence gathered inadmissible, they argued.

Heymann told the court that the computer equipment in question was in the hands of local police for most of that time and unavailable to the Secret Service, but it appears that its investigators told the prosecutor in an email the day after Swartz's arrest that it was ready to start work on the computer and storage devices.

The complaint states that Heymann said he had forgotten about the email, and this led to the disclosure of many more documents and emails relating to the investigation which indicated Heymann was involved in Swartz's case before he was even arrested.

The second complaint alleges that Heymann broke sentencing guidelines while attempting to browbeat Swartz into accepting a plea bargain that would have seen him accept guilt on all charges in exchange for serving four to six months in prison. If Swartz risked a jury trial and lost his case, Heymann promised he would push for at least a seven-year sentence.

"The difference between an offer of four months and a threat of seven years went far beyond the minimal reduction in sentence that should properly have applied for 'acceptance of responsibility' under the Sentencing Guidelines," the complaint states. "Heymann's extreme offer was an inappropriate effort to coerce a plea that went beyond the appropriate bounds of prosecutorial conduct."

The complaint asks for a formal investigation into Heymann's conduct by the DOJ's Office of Professional Responsibility. But based on statements by his boss Attorney General Eric Holder to the Senate Judiciary Committee last week, Heymann has already been cleared of any hint of misconduct.

The Swartz investigation was "a good use of prosecutorial discretion," Holder claimed, and the charges against him were sound. At no point did the prosecutors seek to put Swartz behind bars for more than five months, Holder claimed, saying that the media had blown the case up beyond all proportion.

El Reg contacted Heymann's office for comment on the allegations, but has received no response at time of going to press. ®

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