Sunday, January 27, 2013

HOLY (Anonymous) COW! -- Tewksbury

This is Part 2 in a series of unknown length. In Part 1, I explained that the hacktivist group Anonymous took over one federal government website in retaliation for the prosecution of Aaron Swartz, and threatened much more serious action against the internet unless our judicial system is reformed.

This second post may seem entirely unrelated to the first. It is not. I'll explain why before I click "Publish". For now, I'll simply describe the case of United States v. 434 Main Street, Tewksbury, Massachusetts.

This post is my Reader's Digest version of the Institute for Justice article Fighting Civil Forfeiture Abuse. Follow the link for a more thorough, more professional telling of this tragic tale.

Civil forfeiture law allows the government to take and sell your property without charging you with a crime. Law enforcement agencies like civil forfeiture laws since the funds from the forfeitures frequently go directly to the law enforcement agencies. Local police now frequently turn to the Feds to prosecute civil forfeiture cases. The Feds are eager to help, for a 20% cut.

Civil forfeiture cases are against the property, not the owner of the property. If the State can show probable cause that the property was used in a crime, it can seize the property. If the owner cannot prove that the property was not involved in a crime, the State gets to keep the property. Here's a picture of the defendant in United States v. 434 Main Street, Tewksbury, Massachusetts

That's a sinister looking defendant, to be sure. It's the Motel Caswell, owned free and clear by Russell and Pat Caswell. It's valued around $1,000,000. That's why it was so attractive to the Tewksbury PD. The cops are looking at $800,000 worth of paychecks and sundry goodies, once the Feds take their $200,000. It's a big score for everyone involved, except for the owner and our Constitution.

If the fine folks at the Tewksbury PD were enforcing the laws in an even-handed fashion, they would have also pursued civil forfeiture cases against the local Motel 6, the local Fairfield Inn, local Wal-Mart parking lot, and the local Home Depot parking lot. According to their own police logs, all those properties have also been involved in crimes. Those properties, however, aren't necessarily owned free and clear. There's no value in seizing a property that is heavily mortgaged. More significantly, though, the owners of those properties have the resources to put up a fight, and are likely to do so. Most Joe and Jane Q. Citizens don't have the money or the juice to withstand the onslaught that awaits them at the hands of the State. Most simply can't fight back.

So how serious was the crime at Motel Caswell? I'll tell you: fifteen drug related crimes in fourteen years. During those years, the Caswell's rented out their rooms 196,000 times.

The use of civil forfeiture has expanded dramatically since we declared war on drugs. Prior 1985, federal forfeiture proceeds did not go automatically to the seizing agency. The funds went instead to the general revenue fund of the United States. Before 1985, forfeiture revenue was therefore modest.

After 1985, when the police kickback scam was enacted into law, forfeiture revenue exploded. In 1986, the Feds took in "just" $93.7 million. Today the Feds hold more than $1.6 billion in civil forfeitures. I don't have numbers on the total amount kicked back to the police since the Feds began protecting us via their 80% kickback to the cops scam. It seems as if it's going to be many times $1.6 billion.

Now, finally, I reveal what this has to do with Aaron Swartz hanging himself and Anonymous attempting to hold the internet hostage.

The prosecutor in the Tewksbury case is this woman, U.S. Attorney Carmen Ortiz.

Just two days ago, on 25 January, a federal judge rejected her effort to seize the Caswell's property.
In a sometimes scathing ruling, which for now halts the civil action brought by the federal government, U.S. Magistrate Judge Judith Dein said the federal government "had not met its burden of proving a substantial connection between the Motel Caswell and the forfeitable crimes, and, therefore, has not met its burden of proving that the Property is forfeitable." ... 
The U.S. Attorney's Office said in a statement that it respected the opinion, but added that the case "was strictly a law-enforcement effort to crack down on what was seen as a pattern of using the motel to further the commission of drug crimes for nearly three decades. We are weighing our options with respect to appeal." 
U.S. Attorney Carmen Ortiz is the same person who aggressively pursued Aaron Swartz after the State of Massachusetts decided not do so.
State prosecutors who investigated the late Aaron Swartz had planned to let him off with a stern warning, but federal prosecutor Carmen Ortiz took over and chose to make an example of the Internet activist, according to a report in Massachusetts Lawyers Weekly. 
Middlesex County's district attorney had planned no jail time, "with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner," the report said. "Tragedy intervened when Ortiz's office took over the case to send 'a message.'"
I have previously expressed my concern about the power exercised by prosecutors, and I will now tend to make that point more frequently and more forcefully. I believe I will make Linda Carty the subject of my next series regarding people on death row in Texas. You will see in that case how prosecutors decide who will live and who will die.

As for the next post in this series of unknown length, I think I'll detail more fully the crime committed by Aaron Swartz.