CalFed, you don’t think the email raises any questions?

Comment by Steve57 (4c041b) — 1/18/2013 @ 4:23 pm

Yeah, I think the email raised questions…and I think the Government answered those questions in their answer to Peters’ motion to suppress.

We know, as you point out, that Pickett didn’t take custody of the laptop when the fingerprint exam was completed but the USSS did not attempt to take custody but rather let the local authorities hold onto the hardware as physical evidence in the Mass. case.

Comment by Steve57 (4c041b) — 1/18/2013 @ 4:23 pm

This is incorrect …Pickett DID take custody of the laptop when the fingerprint examination was complete. Within a few days of its completion, Pickett executed a search warrant on the Cambridge PD and secured the laptop.

Who made that decision? You keep avoiding that central question.

Comment by Steve57 (4c041b) — 1/18/2013 @ 4:23 pm

I disagree. The central question in a infringement of possessory interest matter is who actually possessed the item in question. In this case, that item was in the possession of the local authorities and was being held as evidence of Swartz’s involvement in state crimes for which Swartz was ultimately indicted.

It really doesn’t matter what the Federal Government could have done, what matters is what they didn’t do, which is to take possession of the items that Swartz claimed he had a possessory interest in.

BTW, the laptop was found under a desk at MIT, where Swartz abandoned it. Swartz never made a request for its return, nor would he have. The computer was an instrumentality of his crime and contained the fruits of that crime. No competent lawyer would have had Swartz admit that the computer was his as he would have had to have done to exercise his possessory rights to the computer.

It would be akin to a bank robber ditching his gun in a dumpster outside the bank, and then claiming that the police should have returned it to him when the found it there.

The key here is that until the Federal Government had a reasonable amount of time to collect and analyze facts before deciding to go forward in Federal court with this matter. That is what the Government argued and I find their argument persuasive.

In no ambiguous terms.

It’s a simple declarative sentence to which we’re referring.

I am prepared to take custody of the laptop anytime after it has been processed for prints or whenever you feel is appropriate.

There’s nothing ambiguous about it.

I believe it highly unlikely that an AUSA, who may not have yet seen any reports on this matter and may have only been briefed in telephone calls, was “in charge of the investigation”, which is what you have claimed, Steve.

I’m not claiming anything. The lead federal investigator told the federal prosecutor he was prepared to take custody of the laptop whenever the Cambridge PD completed the fingerprint exam or at any other time the AUSA said it was appropriate to do so.

We know, as you point out, that Pickett didn’t take custody of the laptop when the fingerprint exam was completed but the USSS did not attempt to take custody but rather let the local authorities hold onto the hardware as physical evidence in the Mass. case.

Who made that decision? You keep avoiding that central question.

The email tells a different story.
Comment by Steve57 (4c041b) — 1/18/2013 @ 1:44 pm

I do not believe the email is dispositive.

Again, according to the documents filed in this case, the Secret Service was not brought into this investigation until 1/04/2011—3 days before the Pickett’s email. Swartz was identified and arrested at approximately 2:00 pm on 1/06/2011. Pickett’s email is date/time stamped at 3:25pm he following day.

I believe it highly unlikely that an AUSA, who may not have yet seen any reports on this matter and may have only been briefed in telephone calls, was “in charge of the investigation”, which is what you have claimed, Steve. I’m betting at this early stage, facts were still being sorted out and the question as to whether this case would even be pursued in Federal Court was still being considered. I do not know at what point that Federal authorities decided that this matter should be tried in Federal Court, but I doubt that it was within a mere 25 hours of the defendants arrest for activities that had been going on for months.

At any rate, the filings show that the laptop was found by MIT staff, and was given to the MIT Police. Aaron Swartz was charged by the Commonwealth of Massachusetts in a criminal complaint alleging breaking and entering into MIT’s property with intent to commit a felony, and was subsequently
indicted by a Massachusetts grand jury for the same charge along with stealing JSTOR’s electronically processed or stored data, and accessing a computer system without authorization. So the laptop was in the custody of local authorities and was being held as evidence to support local charges that were filed by those same local authorities.

The Federal prosecutors have argued that the laptop was in the custody of the local authorities as evidence to support charges which they had filed against Swartz, all of which is true. They also stated that while the State authorities pursued their own investigation, the United States Attorney’s office began their own investigation. So when you assert that the AUSA was “in charge of the investigation”…which investigation are you talking about? You certainly can’t mean the State case, in which Swartz had been charged and in which the laptop was being held as evidence.

What do you really have? An email, with a rather ambiguously worded statement by a Secret Service agent about what he is prepared to do. What you do not have is any solid evidence that the AUSA had actual control of the laptop in question, which is what Elliot Peters claimed in his motion.

Should the AUSA have turned over the email sooner? Sure, but they stated that as soon as they found it and realized its significance, they had it hand delivered to Peters. I have no evidence that this is not true.

110. What bothers me is that the prosecutor’s responses implied the feds had nothing to do with Swartz’s lack of access to his computer, hard drive, etc. — while they were holding onto an email that showed the opposite, and that the prosecutor knew it.

It just doesn’t strike me as being totally forthright with the court.

Comment by Patterico (8b3905) — 1/18/2013 @ 7:14 am

Obviously that’s what bothers me (in my more long-winded way). But even more to the point, it appears to me the prosecutor stated in no uncertain terms that the federal government had nothing to do with delay. After recounting the timeline of who had custody of the equipment on what dates, at the end of the first paragraph the prosecutor said:

Thus, the United States did not affect Swartz’s possessory interests in his equipment until it executed warrants.

I’ll rephrase that in my own words. “As a consequence (of the foregoing), the federal government did not influence Swartz’s right to possess and control his property until 24 February 2011 (the date I believe the feds executed their search warrants).”

That doesn’t seem to me to imply anything. That’s coming out and saying it.

Also, I don’t see how anyone can read that and conclude the prosecutor was avoiding the issue entirely. The issue Swartz’s motion to suppress raised was one of control. The response to the motion avoided the issue of control entirely. Events just happened. No one shaped them.

The email tells a different story.

Just to get a win? I would hope not, but it is a standard prosecutorial tool. From what I understand plea-bargains are reached in 90%+ of cases so it is obviously a tool that is frequently used, justly or not. Obviously I personally feel that plea-bargains are frequently unjust as they remove most legal protections from the defendant and lead to a situation that juries seem to assume anyone they see must be guilty.

Sorry, Michael, but imho, the opposite is usually the case…prosecutors fairly charge a defendant and then give away the store to get a guilty plea.

Murder becomes manslaughter, aggravated assault becomes simple battery, etc.

The answer to that question is determined by whether there is sufficient probably cause to believe that a crime has been committed and whether the item to be seized is evidence or fruits of that crime. As I mentioned, it is possible that the Prosecutor was waiting for the results of the fingerprint exam to bolster the probable cause to support the warrant. I would need to know the results of the fingerprint exam as well as whether, if positive for Swartz’s fingerprints, the results were contained in the affidavit supporting the search warrant.

I did not see that offered as a justification in the response.

Look: the motion might have been meritless, and the prosecutor’s delay might have been justified. What bothers me is that the prosecutor’s responses implied the feds had nothing to do with Swartz’s lack of access to his computer, hard drive, etc. — while they were holding onto an email that showed the opposite, and that the prosecutor knew it.

It just doesn’t strike me as being totally forthright with the court.

It is no surprise that prosecutors would use the law like a hammer to destroy peoples lives over unauthorized downloading, regardless of actual damages, given the political advantage and rewards some of them get by doing so. That is how political careers are built by using positions of public trust for self serving careerist ends.

I think prosecutors should be barred from seeking public office for 10 years after they leave their positions as prosecutors. Maybe we’d have less politically career minded and motivated selective prosectutions designed to burnish election chances and more application of actual justice.