Pretrial Services and Suicide: The Story of Aaron Swartz

Before I get into the personal story of my own suicide attempt and the suicide of Aaron Swartz, I need to explain something very few people, and even very few criminal defense lawyers, understand or even try to understand, and that is the atrocity called “Pretrial Services”. When you are indicted for a crime, you are immediately assigned what is called a pretrial officer from the Pretrial Court Office. This person is to make a recommendation to the judge and prosecutor if you should be denied bail, and if released on bail, what restrictions you must comply with while you are awaiting trial. The first thing that is apparent when dealing with a pretrial officer who has your fate in their hands and has met you for maybe a half hour and knows nothing about you, is that any presumption of innocence you thought you might have prior to being convicted by a trial and/or guilty plea is completely and utterly gone. To the Pretrial officer, because you were indicted, you are guilty and thus treated as such.

Supposedly, the purpose of the pretrial officer and department is to perform three functions:

  1. To collect and analyze defendant information for use in determining risk of the defendant fleeing and/or committing another crime while on bail.
  2. To make recommendations to the court concerning conditions of release should the defendant be released on bail.
  3. And finally to supervise defendants who are released from secure custody during the pretrial phase before trial and/or a guilty pleas.

The reality is that the pretrial services system is an unabashed disaster. The pretrial stated purposes above, and what actually occurs, could not be more divergent. Firstly, the pretrial system is embedded with an inherent CYA (cover your ass…) mentality amongst pretrial officers.

From the perspective of justifying their existence and continued job security, it is much safer for the pretrial officer to recommend remand pending trial rather than bail. If anything goes wrong whilst the defendant is on bail, it ends up on the pretrial officer’s desk and their job could be on the line. Thus, the pretrial officer has no job security upside in recommending bail. Remember, these are government employees. They want to clock their forty-hour work week and get their pension. They do not want to take the risk of anything bad possibly happening on their watch.

Secondly, the sad reality is that if bail is recommended, poor people can rarely afford it, so they are stuck possibly for years in prison prior to their trial. The concept of the constitutional right to a speedy trial in the U.S. is nothing but an illusory myth. There are just too many defendants waiting in line to bring defendants to trial quickly. Thus, the preponderance of defendants, especially poor defendants, languish in prison pending trial. The sad facts are that for the most part, poor minorities sit in prison awaiting trial while rich privileged defendants, except for ones that are accused of heinous crimes, are released on bail.

If you haven’t already watched the amazing expose of the insanity and corruption and debilitating effects of the pretrial system, I implore you to watch HBO’s masterpiece, The Night Of, in which an innocent, dark-skinned male is arrested and indicted and left to rot in Rikers Island for years. In order to survive he has no choice but to learn to become a criminal and when he is finally found innocent he is a drug addicted hardened criminal. His life is over, and he wasn’t guilty of anything other than bad police work and, as usual, an overzealous prosecutor acting not for justice but for political self-promoting motivations.

There is also a delusion in the pretrial system, the idea that bail keeps people from fleeing if they are released pending trial. That is nothing but a naïve insanity. If someone wants to skip out on their bail they will, and the amount of bail has nothing to do with it. People don’t show up for trial because of bail and the money they would lose if they flee, they show up because really, there is nowhere to go or hide. The government has taken your passport, so unless you are some kind of secret agent or uber wealthy and able to afford escape on a private plane and be set up with a new identity or immunity wherever you go, there is nowhere really for a defendant to run to that he won’t be caught. That is why defendants show up for trial. It has nothing to do with the prospect of losing the assets they pledged for their bail release.

If the defendant is released, the pretrial officer is supposed to keep tabs on the defendant to make sure they are doing ok. However, that does not happen. I could rarely even find my pretrial officer and, at best, I saw her once a month where her biggest and only concern seemed to be whether I was going to my weekly drug testing. Considering that my crime was not for drugs and I did not have a drug dependency, why this was her major concern was baffling. I had an amazing conversation with her that, if it weren’t for the fact that it is true, would not be believable.

I told her that the stress and pressures of a 5-year investigation, having the government seize my assets, non-stop court appearances, having my lawyers quit because I could no longer pay them, and being stuck with an incompetent court appointed lawyer had taken its toll on me and I was in a massive state of depression and could not see any light at the end of the tunnel. I told her that I was seriously considering suicide in order to end the daily unrelenting attacks from the prosecutors and their incessant barrage of press releases. Amazingly, my pretrial officer completely ignored what I was saying and said her only concern was that I continue with my weekly drug testing. Her response was an abhorrent non sequitur when I was sitting in her office basically crying for someone to help me through the daily pressures of be attacked by the non-stop machinery of the U.S. government. The bottom line was that I was visibly falling apart, and the pretrial officer couldn’t care less as long as I went to my ridiculous weekly drug tests.

With that background, I would like to bring up the government induced tragedy of Aaron Swartz. For those of you who don’t know the story, Aaron Swartz was one of the greatest prodigies of the online world. As an unknown teenager he was a co-designer of online tools like RSS and Markdown and of online services like Reddit that shaped the evolution of the world wide web. He also wrote most of the code underpinning Creative Commons, an online system that uses copyright law to give ordinary people control over how their digital creations can be used by others.

Over the years, Aaron Swartz morphed into one of the most technologically gifted political activists of his time in history. He looked for instances of unfairness in the online world and developed software to remedy it. One of many examples is that he discovered that the provision of court transcripts in the U.S. was essentially a commercial racket, he teamed up with other activists to ensure that the law was readable by all regardless of their economic status.

His downfall came when he turned his attention to JSTOR, a digital library of academic articles hidden behind a paywall. He devised a method of downloading large numbers of articles from JSTOR, using a computer hidden in a closet at MIT. He was arrested in January 2011 and pursued by federal prosecutors with a vindictive zeal, eventually being indicted on a raft of charges which carried a potential jail sentence of 35 years.

According to Tim Wu, a law professor at Columbia, Aaron Swartz’s act of hacking into JSTOR was harmless. Wu said that “There was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim but of no lasting consequence.”

Nonetheless, the U.S. Attorney in Massachusetts mounted a vindictive prosecution of Aaron Swartz despite MIT refusing to press any charges for the hacking. It was yet another case of a politically ambitious federal attorney anxious to make a name for himself. The authorities had noted how effective Swartz had become as a technology world wide web activist, and they were determined to make an example of him.

Thus the U.S. government hounded Aaron Swartz relentlessly. Finally, emotionally and mentally beaten by a vindictive and politically ambitious U.S. Attorney, on January 11th, 2013, at the age of 26, one of the greatest geniuses of our time, hanged himself.

I never met Aaron Swartz but from afar and based on all the news reports I could read. However, my situation and my suicide attempt were akin to Aaron’s. Certainly, I was not a genius as Aaron Swartz was, nor was I as remotely as famous, but the unrelenting and irrational persecution by overzealous prosecutors in Aaron’s case and mine were, in my opinion, exactly parallel.

Like me, Aaron Swartz did not take his life because he was depressed, in my opinion. Like me, based on everything I have read about him by the people closest to him, Aaron committed suicide because of exhaustion, fear and uncertainty caused by an unrelenting persecution and prosecution that had been going on for years and had drained all of his and his family’s financial resources.

Aaron Swartz’s death and my suicide attempt were caused by a criminal justice system that prioritizes power over mercy and vengeance over justice. Our criminal justice system punishes innocent people for trying to prove their innocence. It wantonly punishes defendants if they refuse to accept a guilty plea. Worst of all, it marks those that plead guilty as criminals in perpetuity. Paying for your sins financially or by going to prison will never cleanse the stigma of a guilty plea or verdict. Prosecutors are simply incentivized and have the power to destroy the life of anyone they want in order to pursue their own career and publicity ambitions.

In my opinion, like in my case, the sole cause of Aaron Swartz’s suicide was his criminal case and overzealous prosecutors looking to make a name for themselves, and a pretrial officer and system that simply didn’t care nor take the time to investigate or listen. Aaron’s death was the product of a criminal justice system rife with intimidation and prosecutorial overreach. The U.S. Attorney’s Office in effect killed Aaron Swartz (and almost killed me), by choosing to pursue harsh charges to punish an alleged crime that had no victims. Charging him with crimes that had a maximum jail sentence of 35 years was insane and those charges, and the intimidation to get him to plead guilty, in my opinion, was the direct cause of his death.

To be clear, I am not saying that Aaron Swartz had a right to hack into the JSTOR computer and that in some appropriate way he should not have been punished. What I am saying is that there were numerous civil remedies that could have been pursued in which the punishment would have fit the crime, and most importantly, I think it’s time we rethink whether prosecutors should have full immunity allowing them to act in wanton disregard of a defendant’s rights without ever having to worry about repercussions from their heinous behavior.

I was much luckier than Aaron Swartz. Although we both were pursued by overzealous prosecutors for victimless crimes where no restitution would be do, as there were no victims and no plaintiff complaints, Aaron was successful in his suicide, and I wasn’t.

In my case, my wife, out of sheer luck, had the time to call 911, and the EMT’s came quickly enough to get me to the emergency room in time for the doctors and nurses to pump my heart and stomach in time to reverse the effect of the opioids I had taken and saved my life.

I guess I was in the ICU of the hospital a few days. My wife sat by my side the entire time. My lawyers never came to visit or called me other than to call my wife to say I missed a hearing I was supposed to be at. The fact that I was a moment away from death in the ICU and had tried to kill myself was of no import to my court appointed lawyer at all. My suicide messed up their schedule and that was an inconvenience to them.

You might ask why I am telling you all this and what it has to do with the judicial system. The real answer is that my suicide had nothing to do with the justice system other than the part that the prosecutors and my court appointed lawyers were actually pissed off that I survived my suicide attempt. My suicide attempt created an array of legal and ethical issues for the prosecutor and my court appointed attorneys that they did not want to face nor deal with. They now had to deal with the issue of whether a technical infraction of the SEC disclosure laws with no victims was worth me killing myself. In the end, the prosecution believed his victory was worth my death and that is a sad fact of our judicial system. Prosecutors want convictions and prison sentences at any cost, and court appointed defense lawyers simple don’t care other than for their client to plead guilty so they can move on to the next case.

So yes, I tried to kill myself. It was not a cry for help or some form of theatre. I wanted to be dead. The fear of prison and the humiliation from the press put me in the darkest place a human can ever be, wanting to take their own life and end the pain. I wonder if the U.S. Attorney was happy that I tried to kill myself. He already put out all his press releases and had a guilty plea. He had the glory and another conviction. He was a happy guy.

My next blog will deal with the capricious decisions made by the Bureau of Prisons in prison designation (what prison you get sent to) and the surreal life changing experience of self surrender to prison.

Lawrence Goldfarb’s new book, From Hell to Eternity, will be released in 2018. Sign up to receive news, information and updates.

Lawrence Goldfarb's new book, From Hell to Eternity, will be released in 2018. Sign up to get the latest updates.

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