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Prosecutorial Excess: A Pattern of Abuse

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Aaron Swartz

I continue on break from the UMN Markingson story as I try to make sense—although there appears none to be had—of the tragic death of Aaron Swartz. I am haunted and infuriated by the senselessness of his death and his persecution by overzealous prosecutors. I am also reminded of other witch hunts that were equally misguided and also led to perverse and Kafkaesque results.

In an emergency, what is your duty to care?

One case is that of Dr. Anna Pou, who was attacked by a grandstanding prosecutor, Charles Foti, in New Orleans. She was the heroic physician who stayed in a New Orleans hospital to care for her patients during Hurricane Katrina. She was exonerated of irresponsible accusations of homicide. While hers was not a federal prosecution, it sent a chilling message to healthcare workers—in a disaster, consider if your duty to care for your patients trumps that of your other duties and is worth the risk of the destruction of one’s reputation and career, not to mention crippling legal defense bills and even a prison sentence.

In Hurricane Sandy, we again saw many heroic people who stayed to care for others, putting themselves at significant risk. There was considerable government support this time, however, unlike during Katrina. Perhaps that accounts for the difference in outcome. There needs to be some legislative protection for the good people who stay to help. Otherwise, the lesson from Katrina is that it is too dangerous to do so.

Patriot Act warning to researchers


Another example is that of Dr. Thomas Butler, who I wrote about some years ago. He was a leading researcher who, before the government attacked him, was studying treatments for plague, bearer of the “Black Death,” a bacteria that might be weaponized and used for bioterrorism. When he reported vials missing from his lab, federal agents descended on his Lubbock, Texas lab, and he was charged–and ultimately acquitted–of 69 felony counts related to bioterrorism. He served 2 years on minor unrelated, “fishing expedition” charges.

What was little mentioned at the time was that Dr. Butler is also the leading researcher responsible for developing “oral rehydration solution,” an inexpensive powder that has saved millions of lives in developing countries. This treatment, which replaces intravenous therapy for severe dehydration “is credited by the World Health Organization for saving between 2 and 3 million lives of under-4-year-olds each year around the planet,” according to Dr. William Greenough, professor of medicine at Johns Hopkins University.

Dr. Butler’s trial was apparently intended to serve as a warning to researchers that the Patriot Act concerns extended to them and would be ruthlessly applied. It has done that. It has also resulted in many researchers losing their willingness to study agents of concern, lest their lives be similarly destroyed.

I would recommend John Mangel’s thoughtful series, Plagued by Fear, in the Cleveland Plain Dealer for an excellent review of this tragic story.

Destroying the Life and Career of a Valued Physician-Scientist Who Tried to Protect Us from Plague: Was It Really Necessary? reflects the analysis by many of Dr. Butler’s colleagues, including:

“Reactions in favor of Butler and expressions of concern about the handling and impact of the case have been strong, including comments from the Human Rights Committee of the National Academy of Sciences (NAS), the Institute of Medicine (IOM), the National Academy of Engineering, and the New York Academy of Sciences. The presidents of the NAS, the IOM, and the European Society of Clinical Microbiology and Infectious Diseases, as well as many prominent scientists and physicians, wrote to then Attorney General John Ashcroft to express their concern about the impact of the prosecution of Dr. Butler (the presidents of the NAS and the IOM had written only once before to an attorney general, Janet Reno, and their letter was concerned with the prosecution of Los Alamos National Laboratory scientist Wen Ho Lee).

Four academy members who are Nobel Laureates wrote, on behalf of themselves, that “this respected colleague has been subjected to unfair and disproportionate treatment.” . . .many other news sources have run stories suggesting that Butler may have been a victim of the widespread fear about (bio)terrorism and may have been singled out, presumably to serve as an example, as part of a flawed strategy to fight bioterrorism.

We think it makes very little sense to have removed from action such a knowledgeable and active clinician and clinical investigator who was working to protect us from plague–such removal is akin to shooting ourselves in the foot…

Dr. Tom Butler, a physician-scientist and member of the IDSA, respected by all colleagues who know him and his work, has been stripped of his professorship, tenure, salary, and medical license and has spent his life savings and retirement to defend himself. . . He and his family have no sources of income. His situation is a cautionary tale to all of us, especially those who work with biological agents with potential for use in bioterrorism, even if in collaboration with governmental laboratories and scientists.”

Yet Andrew McCarthy, a former federal prosecutor, saw nothing wrong with the prosecution, opining, “I don’t think it’s remotely heavy-handed. This is a time when it’s important to get the message out to the world that we’re serious about dealing with components of weapons of mass destruction.”

Dr. Butler’s colleagues have gotten the fed’s message.

Dr. Peter Agre, was a co-recipient of the 2003 Nobel Prize in chemistry, and is a member of Duke University’s faculty, recently said, “many scientists are reluctant to study these organisms because their best attempts to know and to obey applicable regulations still might land them in prison, might cost them their faculty positions, their licenses to practice medicine, or their right to vote.”

Dr. Stanley Falkow, an expert microbiologist from Stanford University, echoed Dr. Agre’s concerns, noting, “In my letter to Ashcroft, I said I couldn’t imagine why I would let my students work in this area when a simple mistake can lead to incarceration,” and “they took one of the only experts on plague in the U.S. and totally muzzled and incapacitated him.”

When I first wrote about this mockery of justice in 2006, Dr. Butler was working in a Lubbock warehouse, tagging clothing for sale, instead of continuing his valuable research or developing other life-saving therapies, as he had in the past.

“He now has no medical license and no job, and in the eyes of the US government—but not of his colleagues—he is a convicted felon. All of this because he was able to organize and complete a field trial with colleagues at the University of Tanzania that addressed the vital question of which antimicrobials would keep you alive if you were to contract plague.”

Dr. Butler has since gone back to teaching and research—in Dominica—but remains under the eyes of the feds, although acquitted of all the national security count. In 2010, the Miami International Airport was evacuated and he was detained overnight by TSA for carrying a suspicious canister—looking remarkably like a stainless steel thermos to me. Nothing sinister was found and he was eventually released. Some have considered this to have been harassment, rather than an innocent mistake on the part of the government.

One of the fallouts from the Butler prosecution—or persecution, depending on your perspective—is that of dissuading researchers from studying bioterrorism. There is now an extensive list of infectious agents classified as “select” agents. In order to study these, special permissions and precautions must be taken under the “Patriot Act.” Ironically, some of these agents are also found in natural settings, like plague or Q fever.

Do you feel any safer now?

Prosecutorial excess


There are common threads in these cases, particularly the two involving federal prosecutors. One striking one is that both Aaron Swartz and Thomas Butler were charged with numerous felonies—69 in Butler’s case and 13 in Aaron’s, and both individuals refused to plea bargain and accept an unjust felony conviction. Both were harassed and driven to financial ruin. Aaron faced multiple “felony counts, each of which ‘carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony’, meaning ‘the sentence could conceivably total 50+ years and [a] fine in the area of $4 million.’ That meant, as Think Progress documented, that Swartz faced ‘a more severe prison term than killers, slave dealers and bank robbers’.”

Remember—What was Butler’s crime? Filling out paperwork incorrectly and naivete. And Aaron’s crime? Downloading too many articles with the intent of making them freely available to the public.

Both Dr. Butler and Aaron were extraordinarily bright and had worked tirelessly to better the plight of others—Butler for saving millions of lives from diarrhea due to poverty, lack of clean water and sanitation, and Aaron through making information and education available to all.

Neither had any profit motive. Perhaps that was their fatal error. After all, Carmen Ortiz’s office chose not to pursue prison terms for corporate officers although their actions caused actual harm to patients. Ortiz was quoted in the case of one pharmaceutical company as saying, “Forest Pharmaceuticals deliberately chose to pursue corporate profits over its obligations to the F.D.A. and the American public.” And the cases of both Forest and Glaxo, also involved in a settlement, involved drugs that had serious side effects. St. Jude Medical makes cardiac devices that have been plagued by problems with defibrillator leads, some leading to deaths. And yet, where clearly more harm has been done, there has been no criminal prosecution nor accountability for the responsible executives. Why the selective prosecution of this brilliant young man?

Some, as Professor Jonathan Turley, rips Ortiz’ comparison to Inspector Javert, unable to show any discretion (let alone compassion or sense of proportionality). As Aaron’s friend and mentor, Lawrence Lessig noted, “I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

Others cite Ortiz’ and Assistant US Attorney Stephen Heyman’s pattern of bullying. Heyman was involved in the case of a hacker, Jonathan James, who also felt driven to suicide.

Ortiz has shown a pattern of selective prosecution. In a recent example, she is going after a small motel owner in Tewksbury, seizing his property because drug crimes were committed there.

“U.S. Attorney Ortiz said through a spokeswoman last week that the government wanted to send a message by going after the motel. But just up the street from the Caswell, the Motel 6, Walmart and Home Depot have all experienced a similar rate of drug crimes on their properties over the years, according to Caswell’s attorneys.

And attorney Salzman says there’s one good reason Ortiz didn’t go after them.

“Mr. Caswell is a small business,” Salzman said. “A single family owned this property, didn’t have the resources to defend himself, and the U.S. Attorney’s office, looking to make an example, picked on the smallest kid on the block.”

There is a certain bitter irony that these federal attorneys are immune from prosecution or civil suits for their actions. For a damning post on how prosecutors can target people, rather than actual crimes, and how they abuse plea bargaining by bringing excessive charges, see Reynold’s “Ham Sandwich Nation: Due Process When Everything is a Crime.”

Others have noted that Ortiz’ prosecution of Swartz was not sound:

“The flaw in Ortiz’s posture has been laid bare by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals. In United States v. Nosal, he dismissed the theory Ortiz used to go after Swartz, saying it would potentially criminalize ‘everyone who uses a computer in violation of computer use restrictions — which may well include everyone who uses a computer.’”

So we have prosecutors with extraordinary discretion as to who to target, and how aggressively to go after defendants and yet having no accountability for their actions. There’s something fundamentally wrong when prosecutors focus on easy, helpless targets so they gain easy wins to advance their careers.

On reflection, I believe in some prosecutorial discretion—the difference being that I regard brilliant, kind, selfless people like those profiled here as national treasures. They can help make our country scientifically and technologically great and help millions of people. And these courageous souls provide something our country sorely needs—a moral compass that can never be met by the military industrial complex and corporate greed. They remind us of what we have lost through the Patriot Act, the increasingly pervasive surveillance and prosecutorial excess and, most importantly, that absolute power corrupts absolutely.

Suggested reading:

Prosecutor as bully – Lawrence Lessig

The Tragic Case of Aaron Swartz: Unequal Justice for Web Activists vs Health Care Corporate Executives – Roy Poses

Edward Tufte’s defense of Aaron Swartz and the “marvelously different” -Dan Nguyen

Plagued by Fear – John Mangel

Note: The section on Thomas Butler largely appeared in 2006 on my blog.


Molecules to Medicine banner © Michelle Banks
Aaron Swartz – Fred Benenson
Gavel & scale – DES daughter
Patriot Act – Matt Colyer

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Judy Stone About the Author: Judy Stone, MD is an infectious disease specialist, experienced in conducting clinical research. She is the author of Conducting Clinical Research, the essential guide to the topic. She survived 25 years in solo practice in rural Cumberland, Maryland, and is now broadening her horizons. She particularly loves writing about ethical issues, and tilting at windmills in her advocacy for social justice. As part of her overall desire to save the world when she grows up, she has become especially interested in neglected tropical diseases. When not slaving over hot patients, she can be found playing with photography, friends’ dogs, or in her garden. Follow on Twitter @drjudystone or on her website. Follow on Twitter @drjudystone.

The views expressed are those of the author and are not necessarily those of Scientific American.

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  1. 1. dbtinc 11:00 am 01/24/2013

    Coming from a police family of over three generations I can tell you that prosecutorial overzealousness is nothing new and the police are willing participants. Equal justice under law looks good on the Supreme Court building but the reality is the size of your bank account dictates the type of justice you will receive. Prosecutors are interested in winning cases to demonstrate how hard they are on crime. One final piece of advice is never ever talk to the police under any circumstances whether guilty or innocent.

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  2. 2. meyerf55 12:01 pm 01/24/2013

    the feds have recently gotten involved in retalitory prosecutions where the state was unable to get the verdict wanted or fell short of what the public wanted. Judge Richard Baumgartner resigned his job, lost his license forever over a pill scandal. the public was incensed that he kept his pension after 20 years service. the feds decided to charge him with misprision of a felony and was able to get a jury to convict. now he is going to prison and loses his pension. Courtnee Brantley of tampa fl was charged with misprision after the state failed to prove she had anything to do with the murders her boyfriend committed. the feds got a conviction of misprision. these charges are absurd.

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  3. 3. SenorDante 12:10 pm 01/24/2013

    Ultimately, we need to remind and educate the citizenry that it is our responsibility to check the powers of prosecutors. Grand Juries should serve as a check on overzealous indictments. Trial juries should be reminded of their roles and educated on the principal of jury nullification.
    Sadly, we have judges issuing instructions stating that juries “must” issue verdicts based strictly on factual findings.
    We need laws requiring judges to include jury nullification principals in their instructions.

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  4. 4. sethdayal 1:16 pm 01/24/2013

    First they came for the Jews…….

    Who would dare comment in the Fascist States of Amerika.

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  5. 5. rtbinc 3:19 pm 01/24/2013

    I’m sorry, but I don’t buy this. Aaron Swartz committed suicide because he suffered from depression. Turning his tragedy into a martyrdom for some noble cause makes his suffering into a travesty. His pain is meaningless, his mental illness transformed into a political statement. When we ignore the person suffering and focus on the political symbol instead we objectify instead of understand.

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  6. 6. Acoyauh2 3:57 pm 01/24/2013

    While I generally agree with the message in this article, I would in no way put Swatrz’s case in the same category as Dr. Pau or Dr. Butler. Apples and oranges!

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  7. 7. julianpenrod 6:17 pm 01/24/2013

    This may cause this not to be printed or to be removed, but it’s not curprising that this should be about Aaron Swartz. If someone with no connection to the “science” world is abused by such “overzealousness”, you don’t see their cases outlined here. They can suffer at least as much, maybe more so for not having as high a profile and likely as large a collection of supporters. But Aaron Swartz is connected with the internet and that automatically grants him approval and compassion by this blog. In the end, it’s less about ethics than solidarity of “science’ against everyone else. And, incidentally, it still hasn’t been ascertained that the conditions don’t fit those of autoerotic strangulation gone bad. All that happened in that area is “science” devotees demanding, “How dare you make a suggestion like that?”

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  8. 8. Judy Stone in reply to Judy Stone 6:27 pm 01/24/2013

    I suggest you try reading the article. It addresses a motel owner that Ortiz’ office is also targeting. Also, two MDs who had nothing to do with the internet. The article is not just about Aaron, whose death was tragic and a loss to society, but about the pattern of abuse, particularly against those without the means to fight.

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  9. 9. dwbd 8:26 pm 01/24/2013

    rtbinc claims: “..Aaron Swartz committed suicide because he suffered from depression..”

    A ridiculous statement. 10′s of millions of Americans suffer from depression. According to rtbinc’s logic they should all be committing suicide. And on top of that fanatical corrupt prosecutors trying their damnedest to send some poor fellow to prison for much of his life tends to lead to depression – don’t ya think?

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  10. 10. PatriciaJH 8:29 pm 01/24/2013

    The links are edifying. Thank you for this thoughtful and concerning article.

    I’m glad to see in today’s Boston Globe that the Tewksbury motel case was solidly rejected by US Magistrate Judge Judith Dein.

    ‘The judge, in her 59-page ruling filed in US District Court in Boston, said she found it “significant that neither Mr. Caswell, nor anyone in his family, nor anyone over whose behavior he had any control, was involved in any of the drug-related incidents.”

    The court noted that the idea of forfeiture laws was to deter crime.’

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  11. 11. dwbd 8:47 pm 01/24/2013

    Another “suicide” by hanging, last week. Kamran Faisal, An official in Pakistan who was investigating recent corruption allegations against the Prime Minister. Marks on body consistent with a struggle & restraints. I guess he was also “depressed”.

    Seems to me a bright and knowledgeable person such as Aaron Swartz would have taken the vastly more common & easier route of good drugs to commit suicide than such a vicious & painful, potentially totally ineffective & maiming route as hanging.

    When it was leaked that a Call Girl service in Washington had a long list of the political & business elites, first one of the girls who threatened to name customers, died by “suicide” by hanging. And a few months later the madam of the service, who was going to write a tell-all book, showed up on a talk show, adamant that she was upbeat and “no-way she way going to hang herself” and then a few days later she was found dead, “suicide” by hanging.

    And then this nurse in England who was duped into the Australian DJ hoax perpetrated on the Royal Family while Kate Middleton was in hospital. And she was found with “injuries to her wrist” and she “committed suicide by hanging”. And this in spite of easy access to good drugs to do the job pleasantly. Women RARELY commit suicide by hanging. They usually just OD on prescription drugs.

    So the prosecution pulls out all stops to prosecute this poor fellow, but refuse to consider EVEN INVESTIGATING the graft, corruption and illegal transactions of super-elites who caused the financial meltdown, causing untold suffering & even death to millions worldwide. $trillions of wealth from the poor & middle class, especially pensions, disappeared. How many kids died because of those cretins? No charges for that however:

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  12. 12. Judy Stone in reply to Judy Stone 10:30 pm 01/24/2013

    Thanks for the kind words and also for the good news about the Tewksbury case. Restoring my faith–a little. Appreciate both!

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  13. 13. Judy Stone in reply to Judy Stone 11:00 pm 01/24/2013

    Patricia, more details can be found at Boston Biz Journal, Quite a slapdown.

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  14. 14. rtbinc 12:06 am 01/25/2013

    Dwbd stated “A ridiculous statement. 10′s of millions of Americans suffer from depression. According to rtbinc’s logic they should all be committing suicide.”

    Aaron Swartz noted on his website ( about depression

    “The economist Richard Layard, after advocating that the goal of public policy should be to maximize happiness, set out to learn what the greatest impediment to happiness was today. His conclusion: depression. Depression causes nearly half of all disability, it affects one in six, and explains more current unhappiness than poverty. And (important for public policy) Cognitive-Behavioral Therapy has a short-term success rate of 50%. Sadly, depression (like other mental illnesses, especially addiction) is not seen as “real” enough to deserve the investment and awareness of conditions like breast cancer (1 in eight) or AIDS (1 in 150). And there is, of course, the shame.” on Dec18th 2012 noted that depression had surpassed asthma as the leading form of disability of American and Canadian teens. It is the 10th leading cause of death overall, 4th for 5-14 year olds, and 3rd for 15-24 year olds. All according to the American Foundation for Suicide Prevention website.

    So I join Aaron in asking is depression real enough to deserve investment, or should we only worry about Prosecutors who are too aggressive.

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  15. 15. dwbd 9:35 pm 01/25/2013

    rtbinc, I’m well aware of the seriousness and impact of depression. I get that every winter – SAD. And saying “I’m depressed” is like saying “I have the sniffles” – It DOES NOT necessarily mean clinical depression. I get depressed every Monday morning. According to you, anyone who ever makes a statement “I’m depressed” is automatically seriously clinically depressed and may commit suicide.

    Your very attitude is a disservice to all depressed persons. According to you any person who is found dead, and someone else or themselves ever claimed they were depressed, well no need to investigate the death, no need for forensics – they must automatically have committed suicide.

    Perhaps Aaron was clinically depressed and committed suicide in this bizarre & very unlikely way. Or perhaps he was murdered and made to look like suicide. You claim no investigation needed. I claim this smells bad and I would have a VERY THOROUGH forensic examination done. Political overtones ALWAYS implies a need to regard this as SUSPICIOUS CIRCUMSTANCES of death. So did he have marks on his wrists consistent with restraints or handcuffs as in the case of the Pakistani official and the British Nurse? These things should be investigated with the utmost seriousness, not just ignore suspicious circumstances, because “he might have been depressed, maybe”. What a terrible crime you wish to perpetrate on all the depressed. Let their despicable murderers go free. While poo-pooing demented, sociopathic prosecutors who try to destroy the lives of individuals of MUCH HIGHER moral character than themselves, because they want to set an example, are just being a-holes or want to advance a $million political/business career.

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  16. 16. dwbd 2:31 pm 01/26/2013

    The Ruling Super-Elites had reason to get rid of Aaron Swartz, and make an example of him, which is why they went to draconian anti-democratic means to imprison him for life, while they could care less about child killers & mass murderers. Anonymous has uncovered a treasure trove of damning information on devious & despicable acts by the US Federal Gov’t:

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  17. 17. FrenchToaster 8:51 pm 01/26/2013

    Aaron Swartz was a thief.

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  18. 18. dwbd 12:38 am 01/27/2013

    @FrenchToaster: Yep he downloaded some boring files from “scientific and literary journals” and he DIDN’T PAY THE SUBSCRIPTION FEE – WHOOOO – A real demon he is. According to French Toasted he deserves 35 yrs in prison for that and a $million fine. But frenchtoaster could care less about the Wall St. Banksters who ripped off the poor & middle class for several $trillion, caused massive unemployment, suicide, children going hungry, and worldwide economic catastrophe. According to toaster they deserve to go scott-free.

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  19. 19. nahid3 1:22 pm 01/28/2013

    Please sign the Whitehouse petition to make the DOJ pay for Aaron Swartz death.

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  20. 20. davarinovantucson 1:44 am 01/29/2013

    One of the primary sources of prosecutory zeal is the fact that prosecutors are compensated based on their “levels of success”.

    England had a reasonably good protection for the rights of the defendant back in the not so distant past when the prosecution of crimes was dealt with by lawyers randomly chosen from the general pool of lawyers.

    If one’s livlihood and professional success is not dependant on utilization of state resources to crush the weak, the crushing of the weak becomes far less attractive, even to a high-energy lawyer.

    Abolition of the system of professional prosecutors is worthy of consideration when we note that the primary purpose of the prosecutor (at least in Anglo-American law) is the pursuit of legal justice rather than the pursuit of “successful” prosecutions.

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