In most respects, U.S. Attorney Carmen Ortiz’s statement about the Aaron Swartz prosecution is unremarkable. It’s more or less the standard fare that one expects from government officials who unexpectedly find themselves on their heels.
The most striking thing about the statement is the writing itself, which is terrible. Ortiz begins:
As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man.
What is the first clause doing here? Presumably it is either intended to establish empathy or sympathy. Empathy seems odd because Ortiz extends “sympathy” two sentences later. But sympathy doesn’t require mentioning Ortiz’s own family, unless she means to syllogize: “I would be upset if one of my family members killed himself. Aaron killed himself. Therefore I imagine that Aaron’s family is upset.” Much better is to avoid the token contrivance and say something like:
I want to extend my heartfelt sympathy to everyone who knew and loved Aaron Swartz. All of us at the U.S. Attorney’s Office deeply regret that Aaron chose to take his own life.
I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.
This isn’t that bad. It sort of feels like it’s missing a sentence at the end. The bigger problem is that “somehow led” is too snarky. Ortiz is basically saying that anyone who believes that Aaron’s suicide was related to his prosecution is an idiot. The problem is that most people do believe that these events are related, which seems quite reasonable absent evidence to the contrary. Ortiz is pushing back on causation where she should be pushing back elsewhere instead. The weak line is “We didn’t do anything that caused Aaron to kill himself.” The strong line is “We did everything right. It sucks that Aaron killed himself. Not our fault.”
Ortiz’s second paragraph begins as haphazardly as the first one ended:
I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case.
This sounds weak and defensive in the worst way. If you didn’t do anything wrong, why not take ownership and avoid the passive voice? She continues to wax Rumsfeldian:
The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably.
At one level, she is defending her prosecutors. On another level, it seems like she is throwing them under the bus. Also, no one wants to hear how hard your job is when you mess up (or if you are perceived to have messed up).
Ortiz then spends the rest of the paragraph aimlessly listing off some facts that she hopes readers will find mitigating. Why she doesn’t use an unordered list is beyond me. (The federal government, after all, knows how to use bullet points.) Before we get there, though, consider whether something like the following would make a better second paragraph:
I have been involved with this case since its inception. I have reviewed the record at length over the past few days. My conclusion is clear: I am absolutely certain that our conduct was appropriate in bringing and handling this case. Prosecutors make odd scapegoats in situations such as these. Our job is to enforce valid laws fairly and effectively. In this case, that meant bringing charges against Aaron. We do not pass judgment on the wisdom of laws that Congress chooses to enact. And, unfortunately, we cannot prevent the small percentage of criminal defendants who elect to commit suicide from doing so.
Ortiz’s fact section is her worst writing of all. Consider the following excerpt:
That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge.
That is atrocious. I don’t think it needs any more explanation than that. If you disagree, you are wrong. If you think that this horror show is necessary legalese, you are wrong. This is not a real estate contract. It does not need to read this way. Whether it’s bad enough to do any damage is unclear, but it is certainly not persuasive writing. AUSAs are typically pretty good lawyers who write well. I seriously question whether Ortiz had any of her people read her statement before releasing it. (Another possibility, as @DanGoldin suggests, is that too many people worked on it. Either Ortiz has zero proofreaders or an army of them.)
In any case, here is how one might retool the facts section:
- We recognized that there was no evidence that indicated that Aaron acted for personal financial gain.
- We recognized that Aaron’s crimes did not warrant the maximum punishments authorized by Congress.
- We never sought—or told Aaron or his attorney that we intended to seek—the maximum penalties in this case.
- When we discussed settlement options with Aaron and his lawyer, we told them that we would recommend a sentence of six months in a low security facility if Aaron agreed to plead guilty. Aaron declined.
- Judges, not prosecutors, decide sentences. All prosecutors can do is recommend a particular sentence. Note that even under a plea bargain, Aaron’s counsel would have been free to recommend and advocate for an even lesser sentence than six months.
The statement ends with:
As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.
That’s not so bad. But could she have ended stronger?
While anger is understandable in the wake of tragedy, anger at prosecutors, at least in this case, is misplaced. If people believe that the law should be changed, certainly they should contact their representatives in Congress. In the meantime, as federal prosecutors, our mission is to enforce the law as fairly and responsibly as possible. That is what we did in this case, and we will continue to do just that.
I don’t mean to suggest that my edits make the statement appropriate. I did them in 20 minutes on the Caltrain this morning. What I do mean to suggest is that there is lots of room for improvement. Since this was surely a statement worth getting right, I can’t help but wonder what went wrong.