Is justice served when prosecutors pile on charges to ensure a conviction?

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The federal government charged Internet activist Aaron Swartz with 13 counts of fraud and other offenses before he committed suicide.
  • The federal government charged Internet activist Aaron Swartz with 13 counts of fraud and other offenses before he committed suicide.
The Internet’s Own Boy: the Story of Aaron Swartz isn’t a movie designed to leave audiences ambivalent about its subject. We mourn our martyrs, and we shake a fist at the powers-that-be that drive them to martyrdom. Swartz hanged himself 18 months ago at the age of 26, and director Brian Knappenberger wants that fist shaken. Swartz's cause was the untrammeled flow of information on the Internet, and he died awaiting trial on federal charges that he’d illegally downloaded millions of articles from JSTOR, an academic database. Swartz believed the information in these articles should be public property.

The one-sided argument waged by the documentary is between Swartz’s champions, who believe he did nothing criminal, and the federal government, which charged him with wire fraud, computer fraud, and two other criminal counts and threatened him with up to 35 years in prison, but offered him just a few months behind bars if he’d plead guilty. He wouldn’t.

The Internet’s Own Boy solicits our visceral sympathy, and there was a point in the movie, which I saw last week at the Gene Siskel Center, when I gladly gave it. It's when the government amends the indictment—now charging Swartz on 13 counts that could imprison him for as many as 50 years. Three months later Swartz kills himself.

Piling on is a tried-and-true tactic of prosecutors determined to slam the jailhouse door on bad guys. There’s an old saying that in the hands of a relentless prosecutor, a grand jury will indict a ham sandwich. Accuse a suspect of enough ham sandwiches and chances are the trial jury will convict him of at least one of them. Jurors try to be reasonable people. Reasonable people compromise.

As Swartz's legal predicament went from bad to worse on the screen, my thoughts drifted to last winter's NATO 3 trial. This was the terrorism trial in Cook County Criminal Court that, if you casually followed it in the papers, you might have thought the government lost.

For instance, when the trial ended the Sun-Times carried this headline:

NATO 3 defense hails 'huge victory'— prosecutor insists 'this is not a defeat'

The Sun-Times reported that defendants Brian Church, Brent Betterly, and Jared Chase, charged with a state law passed in the aftermath of 9/11, were acquitted of conspiring to commit and abet terrorism during the 2012 NATO summit in Chicago. If convicted, they'd have faced up to 30 years in prison.

"Their attorneys were ecstatic that the most damning charges were dismissed," said the Sun-Times.

The Tribune story began, "Cook County prosecutors' first-ever terrorism case collapsed Friday." A defense attorney praised the jury for seeing through the prosecution’s scheme. "This was a political prosecution in every sense of the word," he said.

That was the dominant angle in the media—the prosecution overreached and its case fell apart. But the NATO 3 were convicted of mob action, and a few weeks later they went back to court and were handed sentences that ranged from five to eight years in prison. Five years isn’t a weekend. Was the silver lining that it could have been 30 years? Or was the silver lining knowing that the actual prison terms would be shorter since they’d already spent two years in jail awaiting trial?

Or maybe there was no silver lining.

I wonder if a change in legal procedures would be a good thing: prosecutors can charge a defendant with as many counts as they want. But they should be careful—if they can't make the most serious charge stick, then the two-bit charges go too.

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