Last week, Carmen Ortiz, the top federal prosecutor in Massachusetts, announced a big indictment.
At 6:30 in the morning, Tim Sullivan, an aide to Boston Mayor Marty Walsh, was arrested at his home and accused of conspiring to withhold permits from a music festival until its organizers hired union stagehands. Pressuring a company to pay union wages and benefits, Ortiz contends, is quite literally a federal crime.
That argument might surprise many people in Boston, a heavily unionized city where organized labor's role in municipal decision-making is often mandated by law. The city law that created the Boston Employment Commission is one example: The commission’s seven members must include representatives of organized labor. And Boston, like the federal government and many other cities and states, requires its private contractors to pay the locally “prevailing wage,” which effectively means a wage comparable to what a union would demand. That diminishes the incentive for those contractors to seek non-union labor.
There's a public safety element, too. Concert work can be surprisingly dangerous and exhausting, not to mention low-paying. Big concert producers are currently driving down wages in the industry through the use of temps and "independent contractors." Using union labor is one way not just to prop up pay and working conditions in the field, but to help make sure trained stagehands are doing the risky work.
What wouldn't surprise Boston is that Ortiz, the U.S. attorney for Massachusetts since 2009, is once again bringing the full force of the law down on semi-high-profile people for minor or legally ambiguous crimes.
And once again, those alleged misdeeds seemingly worthy of prosecution are not the acts of hardened criminals, but were committed in the pursuit of progressive social goals. "You'd like to think the focus would be on those organizations like human trafficking rings, drug smuggling rings, the kind of organizations that in and of themselves represent a threat to safety, public safety," said Martha Coakley, a former Massachusetts attorney general. But with many of Ortiz's prosecutions, she said, "there's a competing social interest, sort of civil disobedience context."
[Ortiz] has a long history of what I consider to be highly questionable prosecutions, particularly against political figures. Defense attorney Harvey Silverglate
Many less-aggressive prosecutors might not have pursued Sullivan or Kenneth Brissette, another mayoral aide indicted in May on the same charges, at all. Neither one had direct control over issuing city permits. And there is no allegation that either man asked for anything for himself or was interested in anything other than encouraging the festival to hire some union workers. As FBI Director James Comey demonstrated Tuesday, not every mistake must bring charges from a reasonable prosecutor.
Under the federal statute that Ortiz is invoking, "the term 'payment' is specifically mentioned," wrote Jon Keller, a local CBS News political analyst, last week. "But there is no mention in the indictment of Sullivan or his co-defendant receiving anything for themselves."
"They are accused only of pursuing wages and benefits for others, i.e. union workers," Keller wrote. "Is this now illegal?"
To Ortiz, the answer seems to be yes. The "imposed, unwanted, and unnecessary and superfluous services and wages and benefits" that event organizers paid to hire eight union stagehands and a foreman were a heavy-enough cost to justify criminal charges.
The pursuit of Walsh's aides isn't the first time that Ortiz has prosecuted progressives for minor offenses. Her past targets include technologist and activist Aaron Swartz, a politically sensitive oral history archive at Boston College, an official who didn't rush to deport an undocumented immigrant, and a bevy of public officials engaging in the give and take of political access.
It would be fair for Ortiz's bosses at the U.S. Department of Justice to inquire how she is choosing her targets, said Coakley. DOJ, she said, could ask, "What is the focus of this? And not only what are you choosing to investigate and indict, but how are you handling that process in terms of your obligations as prosecutors -- and fairness?"
The U.S. Attorney's Office declined to comment on the latest case. But the region's most powerful media outlet, The Boston Globe, has her back on this one, running story after story casting shade on the Walsh administration's ties to organized labor.
Nancy Gertner, a federal judge in Massachusetts from 1994 to 2011, told HuffPost that the indictments are "an abuse of power."
Ortiz “has a long history of what I consider to be highly questionable prosecutions, particularly against political figures,” said Harvey Silverglate, a veteran criminal defense attorney in Boston who's a fierce critic of federal prosecutors in general, and Ortiz in particular. “I consider this to be one of them.”
A Pattern Of Abuse
Lorraine Henderson seemed to be an upstanding public servant -- until the U.S. Attorney's Office decided she wasn't.
Henderson took a job as a receptionist in 1975, shortly after graduating high school, for what was then known as the U.S. Customs Service. "By dint of hard work and native intelligence, Henderson, although not a college graduate, rose steadily through the ranks," the judge in her case later wrote.
After the Sept. 11, 2001, attacks, the Customs Service was reorganized into the new Department of Homeland Security, and Henderson eventually gained authority over some immigration matters. So the feds were concerned when they learned -- thanks to a tip from a colleague who had lost out on a promotion to Henderson -- that every two weeks or so, a woman living in the country without papers cleaned Henderson's condo.
The feds compelled the woman, under the threat of deportation, to wear a wire and ask Henderson for advice about her undocumented status. Henderson, not an expert on immigration law, erroneously thought that the woman's U.S. citizen child made her a legal resident. When Henderson learned it didn't work that way, she told the woman not to leave the country, lest she be barred from returning, and promised to look into how the woman could apply for legal status. That was enough for prosecutors. Henderson was arrested and charged in December 2008 with "encouraging" or "inducing" an undocumented immigrant to remain in the United States.
Ortiz's predecessor had launched the investigation, but Ortiz pressed forward with the case after she took over in 2009. Henderson was convicted in March 2010. She appealed her conviction, and by 2012 the judge overseeing the matter had had enough.
In an extraordinary 50-page opinion, U.S. District Judge Douglas Woodlock wrote that he viewed the ongoing pursuit of the case as "overkill " -- the "improvident invocation of federal criminal felony process when alternative administrative sanctions more closely tailored to the significance of the misconduct are available and adequate. And I am puzzled by the dogged consistency which causes this prosecution to continue."
Woodlock tossed out Henderson's conviction. He noted that Ortiz was within her authority to try Henderson again, but his opinion left little doubt that he wouldn't allow a jury to convict again.
The arrest had made national news -- and earned Henderson the label of "worst person in the world" from MSNBC's Keith Olbermann -- but when Ortiz finally dropped the case in 2013, there was barely a media blip.
"Both the indictment and the leaks do take a certain tone to them and in the end, obviously, you're innocent until proven guilty, but by then it might be too late," said Coakley. "One judge I used to appear in front of said, 'The indictment is always on page one, but the acquittal or dismissal is on the last page, several years later and a lot of expense for everybody.'"
In his opinion the previous year, Woodlock had cited a well-known but too-little-heeded warning about unchecked prosecutorial power from a future Supreme Court justice.
“The prosecutor has more control over life, liberty and reputation than any other person in America,” then-Attorney General Robert H. Jackson told a conference of U.S. attorneys in 1940. “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.”
The Death Of A Boy Genius
When it came to Aaron Swartz, Ortiz seems to have taken Jackson's words less as a warning and more as a road map.
Swartz, a programming prodigy who helped develop the RSS feed as a teenager and co-founded Reddit.com, had chosen not to cash in on his extraordinary talents by moving to Silicon Valley. Instead, he became a prominent Internet activist and co-founder of the progressive group Demand Progress.
In July 2011, Ortiz had Swartz indicted for committing fraud by allegedly violating a digital library's terms of service. Swartz had developed a simple (for him) script that allowed his laptop to download millions of academic journal articles housed in that digital library JSTOR. Although JSTOR charged a fee for many articles, they were free for users inside the MIT library, where Swartz plugged in his laptop.
Prosecutors came to believe that Swartz planned to make all the articles he'd downloaded available online for free, according to individuals involved in the case. Whether or not that was his intent, Swartz handed over the hard drives containing the JSTOR data when he was caught, and JSTOR declined to press charges.
But Ortiz continued to pursue the case, comparing Swartz’s transgression to that of a common thief. The lead prosecutor on the case, Assistant U.S. Attorney Stephen Heymann, compared Swartz to a rapist who had "revictimized" MIT by not taking a plea bargain, according to a later MIT investigation. Heymann was also bothered that Swartz launched a "wild Internet campaign" in his own defense. (He had not done so.)
All together, the federal charges brought against Swartz carried a maximum penalty of 35 years in prison and $1 million in fines. Heymann eventually offered to recommend a six-month prison sentence if Swartz pleaded guilty to the 13 felonies charged. But Swartz, who had physical health problems and also battled depression, was determined to avoid a prison term and multiple felony convictions. He also strenuously resisted the prosecutors' demands that he be barred for years from using any computing technology.
Carmen Ortiz is a prosecutor run amok. David Segal, Demand Progress co-founder and friend to Aaron Swartz
In the end, the prospect of imprisonment -- and guilt over the stress that the ordeal was causing his family and friends -- pushed Swartz deeper into despair, according to people close to him. He took his own life in January 2013.
Even before that tragedy, a wide range of activists, elected officials and legal scholars had accused Ortiz of prosecutorial overreach. Many blamed her for his death.
David Segal, Swartz's friend and colleague at Demand Progress, agrees. "Carmen Ortiz is a prosecutor run amok, with a long and well-known track record of filing unscrupulous and frivolous charges," said Segal, a former Rhode Island statehouse representative. "That prosecution led to the demise of one of the world's greatest young activists, thinkers, and technologists."
Outrage at Ortiz's treatment of Swartz was not confined to the liberal side. Sen. John Cornyn (R-Texas), a former prosecutor himself, and Rep. Darrell Issa (R-Calif.) both slammed Ortiz in the wake of Swartz’s death. A White House petition calling for her to be fired collected over 61,000 signatures, though the White House declined to respond on the ground that the matter was a personnel issue.
Christina Sterling, a spokeswoman for Ortiz, said in an email that federal prosecutors offered Swartz multiple plea bargain deals. The final proposal would have allowed Swartz to argue for, although not necessarily receive, probation.
“All of the plea proposals made by prosecutors were a small fraction of the sentence called for by the federal sentencing guidelines,” Sterling added.
Silverglate doesn't think that explanation goes nearly far enough.
“No law forced Ortiz to use an atomic bomb against a mosquito,” the criminal defense attorney said.
Meanwhile, said Coakley, there's a question about whether priorities are in the right order. "If you want to look at New York, they've been focused on financial crimes, people who've committed crimes related to the integrity of our whole financial system," she said. "We still have human trafficking rings; we have enormous threats from domestic and other kinds of terrorist threats."
Jeopardizing Free Speech -- And Irish Peace
Ortiz’s tactics in a case involving a decades-old murder in Northern Ireland similarly altered the course of people’s lives, drawing criticism from Irish peace advocates and journalists.
In August 2011, the U.S. attorney chose to comply aggressively with a British government request to subpoena the Belfast Project, a Boston College archive of oral histories from former fighters on both sides of the late 20th century civil war in Northern Ireland. The interviews were not supposed to be made public until after the subjects' deaths. The goal was to provide closure for the survivors, both innocent and guilty, of the bloodshed that had resulted in the deaths of more than 3,500 people over three decades.
The British government was acting on media reports in 2010 that Dolours Price, a former militant in the Provisional Irish Republican Army, had confessed on tape to participating in the infamous 1972 abduction and disappearance of Jean McConville, a young mother of 10 children. Price reportedly said she had acted on the orders of Gerry Adams, now president of Ireland’s Sinn Fein party and the former political leader of the resistance against British rule in Northern Ireland.
The Northern Irish tabloid Sunday Life, which said it had heard Price’s taped confession, also claimed that Price admitted to her role in the McConville abduction in that oral history for Boston College, which the paper mistakenly called “Boston University.”
But there was no evidence that the taped confession the reporter referenced hearing was, in fact, Price’s Boston College interview. British authorities could have subpoenaed Sunday Life or Irish News for the sources of their information. Instead, they asked for access to Boston College’s archive on the grounds that Price’s oral history, as well as those of other former IRA militants, might shed new light on McConville’s disappearance.
Ortiz’s subpoenas were met with resistance from a wide array of individuals supportive of Boston College’s oral history project and the peace process in Northern Ireland, as well as academic freedom advocates concerned about the precedent that forcing open the archive would set. Those who participated in contentious times would be discouraged from speaking honestly about their pasts for fear of prosecution in their remaining days -- a blow not just to history but to the process of healing and reconciliation as well.
The fact that they have gone for these interviews the way they have means that no one -- no one, now -- is going to sit down and tell the truth about what happened. Ed Moloney, founder of the Belfast Project
So far, the inquiry stemming from the Price interviews has not led to any convictions in connection with the McConville case and just one set of new charges, which are already being challenged.
Price died in January 2013 at age 61 after ingesting a mixture of alcohol and prescription pills. Law enforcement did not classify her death as a suicide.
But Carrie Twomey, the wife of former IRA volunteer Anthony McIntyre who spearheaded the Boston College project, accused Ortiz of precipitating Price’s death.
“Dolours Price and Aaron Swartz died within weeks of each other," Twomey told WGBH Boston in May 2014. "The stress of the case that was taken against them really took a toll on their mental health. And Carmen Ortiz's office was aware, made aware in both cases, that the people she was pursuing, Dolours for the archive and Aaron Swartz for the MIT aspect, were vulnerable people."
Sterling, the spokeswoman for Ortiz’s office, said the U.S. attorney was legally bound to subpoena the oral history archive due to “obligations under certain treaties to comply with the requests of foreign governments.”
Judge Gertner told HuffPost that explanation sounds accurate. “I don't think that Ortiz was in a position to decline the Boston College subpoena request, which came from the State Department,” she said.
But Silverglate argues the federal government could have invoked free speech concerns to deny the request.
Ed Moloney, the Irish journalist who founded the Belfast Project, said in an affidavit submitted to a Belfast court in September 2012 that Price did not mention McConville at all in her oral history. He believes that the U.K. wants to mine the archive for intelligence and thereby help preserve its influence over the politics of Northern Ireland.
“The fact that they have gone for these interviews the way they have means that no one -- no one, now -- is going to sit down and tell the truth about what happened,” Moloney said.
On other occasions, Ortiz has presided over indictments that were so flimsy, the cases would later collapse.
The U.S. attorney obtained indictments, for example, of Stryker Biotech and several of its executives in 2009 for allegedly promoting uses of their health care products that were “off-label,” or not approved by the Food and Drug Administration. The February 2012 trial was scheduled to take a month, but it lasted just two days. Ortiz’s office decided to withdraw the bulk of the charges shortly after the opening statements, when it became clear that some of the surgeons the government claimed Stryker had defrauded were actually prepared to testify on the company’s behalf, according to Law 360.
Gertner, the former judge, called the failure of the Stryker case “striking.”
Ortiz’s prosecutions of state officials and other politicians have also raised questions about her discretion. In 2014, after supportive coverage in The Boston Globe, she convicted three probation office employees of giving hiring preference to job candidates who were favored by state legislators.
"There were leaks about the chief of probation where the chief was hiring the friends and daughters of judges and politicians. That is American politics and not a crime," said Gertner.
A higher court is now taking a close look at the high-profile case, and the two defendants sentenced to prison remain free.
Along the way, Ortiz's office appears to have leaked negative information about Robert DeLeo, then speaker of the Massachusetts state House, trying to connect him to the scandal. She later named him an "unindicted co-conspirator," damaging him publicly without giving him any legal forum to challenge the accusation.
"This has been, in my view, one of the leakiest offices I have ever seen," Gertner said.
Ortiz also pursued another case against another House speaker, which had begun under her predecessor. Salvatore DiMasi was accused of bribery, although the underlying facts look more like everyday lobbying. In 2011, he was sentenced to eight years.
The Globe in Her Corner
While appellate courts can weigh in after the convictions, often the only real-time check on a runaway federal prosecutor is the media. That's welcome news for Ortiz, because the Globe named her "Bostonian of the Year" in 2011.
Now the two seem to share a mutual interest: The prosecutor has her eyes set on taking down Boston's mayor, and the paper is in search of a crusade that can match the impact of its investigation into the Catholic Church's pedophilia scandal. Ortiz's office is suspected of leaking a staggering amount of private information to the Globe, even including details of wiretaps of Walsh, the mayor.
"The wiretap is the most concerning," said Coakley. "It is highly guarded. It is under court order. The only people who would have access to that should not be in the position of leaking it."
Globe reporter Mark Arsenault chided HuffPost for presuming to know the source of the leaks. "I certainly wish I had your powers to divine other people's sources. It must be a great sense to have," he said in an email.
Indeed, there's no definitive proof that Ortiz and her team are the source of the leaks. But put it this way: Given the motive, the opportunity and the amount of circumstantial evidence that ties the U.S. attorney to the Globe, Ortiz herself would likely have sought an indictment.