Tragedy Focuses Attention on the Power of Prosecutors

prosecutorial-misconduct“The death of Internet activist Aaron Swartz has generated a lot of discussion about the power of prosecutors — particularly federal prosecutors. This is a good thing. The conversation is long overdue. But the discussion needs to go well beyond Swartz and the Computer Fraud and Abuse Act,” Radley Balko of the Huffington Post wrote.

The death of Aaron Swartz, who hanged himself after hopes for a deal with federal prosecutors fell apart, has drawn enormous attention.  Two years ago, Mr. Swartz, who was an advocate for free information online, used a computer network at MIT to download nearly five million articles from JSTOR (short for Journal Storage), a database of academic journals that charges a large fee unless one is associated with a university.

Prosecutors, some now being charged with having political ambitions, were threatening to put him in prison for more than three decades.  Mr. Swartz was threatened that he needed to plead guilty to each and every count and that the government would insist on prison time.

U.S. Attorney Carmen Ortiz said, “Stealing is stealing, whether you use a computer command or a crowbar.”

JSTOR, in fact, told prosecutors that they were not interested in pursuing charges against Mr. Swartz.

“We are deeply saddened to hear the news about Aaron Swartz,” JSTOR would say on its home page following Mr. Swartz’ death.

Glenn Greenwald (no relation) writes, “Whenever an avoidable tragedy occurs, it’s common for there to be an intense spate of anger in its immediate aftermath which quickly dissipates as people move on to the next outrage. That’s a key dynamic that enables people in positions of authority to evade consequences for their bad acts.”

But he notes, “As more facts emerge regarding the conduct of the federal prosecutors in the case of Aaron Swartz – Massachusetts’ US attorney Carmen Ortiz and assistant US attorney Stephen Heymann – the opposite seems to be taking place: there is greater and greater momentum for real investigations, accountability and reform. It is urgent that this opportunity not be squandered, that this interest be sustained.”

Mr. Greenwald notes, “Clearly, the politically ambitious Ortiz – who was touted just last month by the Boston Globe as a possible Democratic candidate for governor – is feeling serious heat as a result of rising fury over her office’s wildly overzealous pursuit of Swartz. The same is true of Heymann, whose father was Deputy Attorney General in the Clinton administration and who has tried to forge his own reputation as a tough-guy prosecutor who takes particular aim at hackers.”

This case, in fact, is not an isolated incident.

“Prosecutors have enormous power. Even investigations that don’t result in any charges can ruin lives, ruin reputations, and drive their targets into bankruptcy,” Radley Balko writes.  “It has become an overtly political position — in general, but particularly at the federal level. If a prosecutor wants to ruin your life, he or she can. Even if you’ve done nothing wrong, there isn’t a whole lot you can do about it.”

This, in fact, is not limited to the federal government.  We face similar problems in Yolo County.

Last week, at the city’s MLK event, Bernita Toney, who has been twice wrongly accused of crimes, spoke out about her own situation.

Bernita Toney was providing care for a frail African-American diabetic.

As Jann Murray-Garcia described in a column, “When Mr. John had a stroke and needed extended nursing home care, Bernita continued to do his laundry, incontinent as he was in an understaffed facility; drove him to doctors’ appointments; made sure his bills were paid so he could return to subsidized housing; and set up and attended ‘family’ meetings at the facility to ensure optimal treatment. When Bernita was out of town, she’d prep me to stand in for the meetings and appointments, as Mr. John had no family in the area.”

However, what Ms. Toney did not know was the IHSS (In-home Support Services) should not have been charged for some of the services and support she provided this individual.

“When she was told, she immediately set up a repayment plan. IHSS employees deemed the oversight as ‘overpayment’ versus fraud, well acquainted with Bernita’s meticulous and patient care of Mr. John,” Ms. Murray-Garcia writes.

What did Bernita Toney do when confronted with the possibility that she had improperly received money – something easy enough to do with the complex web of laws surrounding IHSS?  She paid back the entire balance.

Still, as Ms. Murray-Garcia notes, “the D.A.’s Office pursued prosecution over the next 12 months, expending our taxes in the face of dire county budget deficits.”

As Bernita Toney told the audience at MLK Day, she was a victim of “being wrongfully accused and needing to spend months in the past, it has been years, to protect my innocence and to remain outside of prison.”

She described the difficulty of attempting “to provide for my family in a limited situation where it’s very difficult to obtain a job when you find yourself in a 21 month period, in court 19 times.”

She had to appear in court 19 times in a 21- month period before being acquitted on one of the cases.

“Situations like this will have a profound effect on a family, on a single parent family,” Ms. Toney said.  “I believe this is nationwide.”

She faced 11 felony charges for what the state called an overpayment that she repaid.  And yet, the prosecution took the case to the last possible day.

Bernita Toney’s case went up to jury selection day.  Suddenly, the prosecutor offered to reduce her 11 felony counts to a single misdemeanor charge if she would plead to the misdemeanor.

Ms. Toney, however, would refuse.  When she did, the DA’s office dropped all of the charges, but retained the privilege to retry her.

Writes Jann Murray-Garcia: “This is the third time the Yolo County District Attorney’s Office has dragged Bernita through an extended court process when its officers must have known she was innocent.”

She writes, “Bernita was charged in 2005 with leaving her young children unattended in a car, based on a Davis police report that the D.A.’s Office knew was false before the trial. Spilling over into Reisig’s administration, it took two years, two public defenders, thousands of public dollars and more than 20 court visits for Bernita to be acquitted by a jury in less than three hours. Reisig’s office sent Bernita a bill for the public defender.”

The power that a prosecutor has to disrupt the lives of individuals is tremendous.

As Radley Balko notes in his article, prosecutors have “perverse incentives.”

“At the state level, prosecutors are reelected, move on to higher office, or win prestigious jobs at high-powered law firms for racking up large numbers of convictions — and for getting high-profile convictions,” he writes.  “They’re rarely publicly praised or rewarded for declining to prosecute someone in the interest of justice.”

While he notes, “I’m sure it happens,” he quickly adds, “But it isn’t the sort of thing even a well-intentioned prosecutor is going to boast about in a press release.”

Moreover, as he adds, “USA Today recently found that federal prosecutors who commit misconduct en route to wrongful convictions are rarely if ever sanctioned. Other studies have come to similar conclusions about state prosecutors.”

The study conducted by the Innocence Project and Maurice Possley found, for example, that while prosecutorial misconduct is relatively frequent, prosecutors are rarely sanctioned.  Indeed, in more than 1000 cases overall that they could clearly identify as containing prosecutorial misconduct, only six resulted in the prosecutor facing sanctions from the state bar.

“It isn’t difficult to see how we might get unjust outcomes when incentive points toward building an impressive volume of convictions, and seeking out high-profile, publicity-seeking cases that tend to be more driven by politics than justice, while there’s rarely penalty for breaking the rules or going too far,” Mr. Balko said.

And that is precisely the problem we face.  Bernita Toney may have the threat of sanction lifted, but she does not get to get back her life.  And for others, the danger is far worse.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. hpierce

    “Whenever an avoidable tragedy occurs, it’s common for there to be an intense spate of anger in its immediate aftermath which quickly dissipates as people move on to the next outrage. That’s a key dynamic that enables people in positions of authority to evade consequences for their bad acts.”

    Sorry, could have been avoidable… he did HAVE to kill himself….

  2. JustSaying

    “Whenever an avoidable tragedy occurs….”

    Labeling this tragedy “avoidable” takes a level of presumptuousness that only can be generated by someone intent on using it to advance some political cause. Where do people from afar come off pointing the blame to others for such an act? Even those closest to people who’ve committed suicide are hard-pressed to come up with the rationale (given the deadness of the one actually responsible) and tend blame themselves to some degree for not interceding. I’d say make your case on something about which you have evidence.

  3. JimmysDaughter

    “JSTOR, in fact, told prosecutors that they were not interested in pursuing charges against Mr. Swartz.”

    I think this was an avoidable tragedy. Perhaps a threat of a lesser charge would not have put this young man over the edge. Or community service to teach others how to protect their systems from hackers.

  4. medwoman

    While I think we could probably agree that we do not know all of the factors that caused Mr. Swartz to commit suicide, I think it is also reasonable to believe that the threat of many years in prison would likely be a significant stressor, and possibly enough to push a troubled individual over the edge. I think that many of us would also agree that this is an unnecessarily harsh punishment and that some alternative activity such as such suggested by JimmysDaughter would be more productive and far less costly both to the individual and the society as a whole.

  5. curious

    If JSTOR did not want to press charges, I believe there was no crime…as there was no victim. The prosecutors office should now be held accountable for the mental anguish that man endured. 30 years would make me consider suicide if I had no control over my future

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