Aaron Swartz’s former lawyer in the JSTOR case, Elliot Peters, is accusing federal prosecutor Stephen Heymann of professional misconduct, alleging that he deliberately withheld an email that would have helped suppress illegally-acquired evidence. In a complaint filed January 28th and published by The Huffington Post, Peters accuses the Assistant US Attorney of violating his duty of candor to the court, as well as using an "extreme" plea offer to "coerce" a deal, and requests a formal investigation by the Department of Justice into the matter.
The defense moved to suppress, arguing that the delay was unreasonable under the Fourth Amendment
The first part of the complaint centers around Swartz’s laptop, hard drive, and USB drive, which were seized by the Cambridge Police Department on January 6th, 2011, when Swartz was first arrested. The US Secret Service was granted a search warrant on February 9th — 34 days later, then let it expire before finally getting a second one and executing a search. The defense moved to suppress any evidence that the prosecution turned up, arguing that the delay was unreasonable under the Fourth Amendment, but the prosecution argued that it didn't have the laptop until February, and that the delay was the fault of the Cambridge Police Department.
"He delayed... likely hoping that if no hearing were ordered, he would never have to disclose the evidence."
But it turns out that Heymann had an email proving that the US Attorney’s Office did have the laptop in its possession, and that it, and not the Cambridge Police Department, was calling the shots on the search and seizure. According to the complaint, Heymann didn’t disclose the email (or other, similarly implicative documents) until after a crucial meeting, hindering Swartz’s ability to argue for the suppression of illegally-obtained evidence. Heymann "delayed until after Mr. Swartz’s reply briefing was filed and after the parties appeared before the Court on December 14, likely hoping that if no hearing were ordered, he would never have to disclose the evidence which contradicted his representations to the Court," charged Swartz’s former attorney.
The charge is serious — Peters says Heymann’s claims about the Secret Service not being responsible for the seizure or delay "could only have been an intentional misrepresentation to the Court." Coupled with allegations that prosecutors threatened Swartz with unduly long sentences to coerce a plea, it doesn't paint a very flattering picture of the prosecution, despite Attorney General Eric Holder’s assertions about restraint in the case.