In January, I wrote about the belatedly provided secret service e-mail that contradicted Heyman's response to the motion to suppress.

Just last week, both sides filed briefs over the prosecutor's disclosure of an email he received in June, 2011 from the Secret Service Agent on the case, that he claimed to have somehow "overlooked" and was turning over now. The e-mail directly contradicted what the Government had previously told the court on a suppression issue.

Aaron was seeking to suppress evidence seized from his laptop, hard drive and a usb drive, which state police had seized without a warrant. One of the issues was the delay in seeking a search warrant. The feds didn't seek a search warrant for 34 days. Then they let that warrant expire without executing it, and sought another one, resulting in the search not occurring until 48 days after the computer and drives were seized. The Government was forced to admit that an earlier representation to the Court was not factually accurate.

Heyman had written in his initial response to one of the motions to suppress:

The Secret Service did not seize [Swartz’s] laptop, hard drive, or USB drive on January 6, 2011; the Cambridge Police Department did. Nor did the Secret Service possess this equipment before obtaining the warrants; the Cambridge Police Department did. Thus, the United States did not affect Swartz’s possessory interest in his equipment until it executed warrants. … Swartz cannot simply morph allegations that local police held evidence too long in a local prosecution into a claim that federal law enforcement officers did so in a subsequent federal case.

A defense motion describing the search warrant timing issue and the belatedly disclosed Secret Service e-mail is here. The email stated:

The laptop and external hard drive have been logged into evidence with MIT police. Cambridge Police will take the laptop and hard drive to process them for prints this morning. I am prepared to take custody of the laptop anytime after it has been processed for prints or whenever you feel is appropriate. As far as I know no one has sought a warrant for the examination of the computer, the cell phone that was on his person or the 8gb flash drive that was in his backpack. (My emphasis)

As to the pressure to plead guilty, I opined on the likely effect of the Government's delay in providing discovery and the coercive nature of the plea offer on Aaron here.

For a defendant, even a mentally stable one, the interminable delays, particularly over seemingly minor issues like discovery disputes, can be torturous. For many, there is a cumulative buildup of stress and anxiety over the uncertainty of the case outcome and frustration that the case is dominating all aspects of their lives. If they have retained counsel, the legal bills keep mounting. They just want the case over with. Many want to give up and take the plea being offered, fair or not.

The threat of the loss of liberty is huge for every defendant. It affects everything you do, every day, and all your relationships. You can’t make plans for the future. Your friends and loved ones can empathize, but they can’t feel what you are feeling. You can’t just say, “I won’t think about it today.” It’s a threat that lurks in the recesses of your mind all the time. For someone like Aaron, with a history of depression, who is unable to see any light at the end of the tunnel, it can become unbearable. According to Elliot Peters, the last Government refusal to budge off its insistence of a felony plea and jail time was Wednesday. Friday, Aaron was dead.

In their letter to OPR, Aaron's lawyers write:

AUSA Heymann's attempts to coerce Mr. Swartz into waiving his right to a trial also constituted overreach and an abuse of prosecutorial discretion. The US Attorneys' Manual Section 9-27.400 instructs that "[p]lea bargaining, both charge bargaining and sentence bargaining, must honestly reflect the totality and seriousness of the defendant's conduct and any departure to which the prosecutor is agreeing, and must be accomplished through appropriate guideline provisions." The commentary to the Sentencing Guidelines further explains:

A defendant who enters a plea of guilty in a timely manner will enhance the likelihood of his receiving a reduction in offense level under §3El.l (Acceptance of Responsibility). Further reduction in offense level (or sentence) due to a plea agreement will tend to undermine the sentencing guidelines.

AUSA Heymann's plea offer to Mr. Swartz completely disregarded these maxims. He offered to recommend that Mr. Swartz serve four to. six months in prison if Mr. Swartz agreed to plead guilty to thirteen felony offenses. But if Mr. Swartz chose to exercise his right to a jury trial, and was found guilty of those very same offenses, AUSA Heymann threatened that he would seek for Mr. Swartz to serve seven years in prison. Mr. Swartz, who had no prior record and was only twenty-six years old, naturally felt extreme pressure to waive his rights and accept the plea bargain.

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. AUSA Heymann's extreme offer was an inappropriate effort to coerce a plea that went beyond the appropriate bounds of prosecutorial conduct.

I wrote in one of the earlier posts cited above:

I think the Government’s over-reaching here was not so much in the initial charge, but in the hardball it played when it realized Aaron wouldn’t cave in. Unfortunately, this is not an atypical prosecutorial response – it’s actually fairly routine. What makes this case different is that, while we don’t know for sure, it seems like the Government filed the superseding indictment for the purpose of racheting up the pressure to plead guilty, ignoring the warning that he was a suicide risk. If it wanted to send the message that the more he resisted, the worse things would get, it succeeded -- Aaron is dead, it can’t get worse than that for him. But it seems as unnecessary as using a hammer to kill an ant.

While an OPR review would be welcome, for the reasons I listed here, I think an independent review would be better. Unfortunately, Aaron's case is not an exception. Which is why I'd like to see a independent review of DOJ's use of the “hammer” nationally. I think people would be shocked at the number of cases in which the prosecutor tells the defense:

• Take the deal now, or the offers will only get worse
• Take the deal now, or we’ll supersede with more charges. (In drug cases, it is often, plead now, or we’ll file an enhancement notice for your prior drug conviction and double the mandatory minimum sentence from 10 years to 20 years.)
• This offer is only open until the motions due date. If you file motions, all offers are withdrawn and there will be no future offers.
• If you don’t plead before the pre-trial motions hearing, you are going to trial.
• No offer unless you cooperate
• Here’s the offer, but you have to waive your right to appeal
• Here’s the offer, but you have to agree to a sentence of X and you can’t request a lesser or non-guideline sentence.
• If you take the offer, we’ll agree not to prosecute your wife (or husband or child or parent). If you don’t, they are fair game and we aren’t threatening them, but we think we have a good case against them.

I still can't figure out why proseuctors were demanding a plea to all the charges, when they were also recommending such a light sentence. It seems to me:

The sentencing guidelines encompass all relevant conduct and in the event of a plea, the Government wasn't objecting to a sentence within the range of one misdemeanor count. Here is AG Holder's 2010 Memo on Charging and Sentencing ( which revoked the 2003 memo of John Ashcroft and memos by Deputy AG James Comey.) Holder invokes the phrase “individualized assessment” four times and “individualized justice” once in the memo. He also says, “equal justice depends on individualized justice, and smart law enforcement demands it.” And, Holder points out:"Charges should not be filed simply to exert leverage to induce a plea."

Eric Holder told Congress he didn't find any improprieties in the handling of the Aaron Swartz case. If the Aaron Swartz plea offer was business as usual, and it may well have been, then business needs to change.