Prosecutorial bullying--an abuse of authority

To the Editor:

Although written in the third party, this continues to document my ongoing legal dilemma. The assistant federal prosecutor in Burlington recently met w/ my attorney Dave Sleigh to inform him they did not want to pursue an indictment but rather gain agreement on a plea arrangement. My answer to this proposal was no.

The recent suicide of Aaron Swartz, an open-Internet activist, accused of downloading documents from MIT computers has once again put focus on the all too common practice of prosecutorial overreach. Despite the provider of the academic research documents, JSTOR, dropping all charges, the Boston U.S. Attorney's office decided to pursue 13 felony counts anyways. Swartz, faced with up to 50 years in prison, committed suicide two days after JSTOR decided to make 4.5 million documents publicly available online.. Mr. Swartz's friend, Harvard Law School Professor and free speech activist Lawrence Lessig, wrote that Mr. Swartz was "driven to the edge by what a decent society would only call bullying". The bullying Mr Swartz refers to is prosecutorial overreach.

Sadly, such conduct is not uncommon. Prosecutors blatantly or subtly overstep professional bounds all too frequently. Numerous studies by various public and private entities, to include The Center for Public Integrity, have repeatedly cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences. Even when courts label prosecutorial behavior as inappropriate, convictions are upheld. An article in the Wall Street Journal, 23 July 2011 edition, discusses the proliferation of criminal laws and highlights the absurdity of many federal prosecutions.

The Caledonia County State's Attorney office has evidently decided to also follow this "bullying" behavior. A five month old state criminal allegation recently became a federal allegation. The egregious "allegation" which evidently warrants Federal involvement--violation of a Restraining Order where no contact or communication between the two involved parties occurred. Per the FBI's website "In law enforcement, "concurrent jurisdiction" may exist, where a crime may be a local, state, and federal violation all at the same time. Task forces typically focus on terrorism, organized crime, narcotics, gangs, bank robberies, kidnapping, and motor vehicle theft." It certainly appears to be a "stretch" to take on the allegation in question. Coincidentally, the elevation of charges occurred shortly following the submission of an article to various newspapers critical of the prosecutor's behavior and requests for public information to the St Johnsbury, Vt. police department. Whenever prosecutors become more focused on "getting" a particular person than pursuing a substantiated allegation the mission of the office is degraded and invites excess.

Due process is involved when people suspected of a crime deal with the police and when people are charged with a crime. However, the actual decision to charge a person with a crime is almost completely unconstrained. Because they represent "the government," prosecutors exercise a power and authority, as well as having access to resources, available to few others in our society. The ultimate decision to initiate a prosecution carries the potential for enormous abuse if not exercised with great care and restraint. At a minimum, it can damage careers, reputations, cost significant money to dispute, or worse--the suicide of Aaron Swartz.

The true tragedy of the previously cited Caledonia County States Attorney "bullying" behavior is the unintended consequences of dubious decisions. Federal assets, in this case Albany, N.Y. FBI agents assigned to the Burlington, Vermont office were diverted from pursuing their clearly stated priorities of National Security and significant Criminal Activities.

The Federal investigation resulted in the execution of a search warrant on 12 April 2013 involving approximately 10 agents. The terrorist bombing of the Boston City Marathon occurred 3 days later. The question which will never be answered is whether or not additional focus on the FBI's number one National Security Priority--Protect the United States from terrorist attack--could have made a difference. Not all terrorist attacks will be stopped, regardless of the resources employed, but to employ them in a capacity so far removed from their stated priorities is certainly not prudent; it could be considered reckless.

During testimony before the Senate Judiciary Committee, Attorney General Eric Holder's reply to the question of whether the Swartz case involved prosecutorial overreach or misconduct, his reply was "No, I don't look at what necessarily was charged as much as what was offered, in terms of how the case might have been resolved". It would appear that, indeed, the charges are less important than the outcome. In a better world, prosecutors, would be humbled rather than emboldened by the authority placed in their hands. Too often, they're not. Although some prosecutors believe they "can do no wrong," they can and do make serious mistakes. When they do, people suffer and our system of justice is damaged.

Thomas Sitsch

Monroe, N.H.

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