US Prosecutor Steve Heymann

In a letter written to the Department Of Justice’s Office of Professional Responsibility, Aaron Swartz’s attorneys, Elliot Peters and Daniel Purcell, allege that U.S Prosecutor Steve Heymann engaged in professional misconduct. Swartz’s lawyers allege that Heymann did not follow proper procedure in turning over evidence and securing a warrant.

In the document, Peters argues that Heymann withheld exculpatory evidence. At issue was whether the federal government had properly obtained a warrant to search Swartz’ computer and thumb drive. Peters argued that the government failed by waiting more than a month to obtain the warrant. Heymann countered that he couldn’t get a warrant because he didn’t have access to the equipment. But an email in Heymann’s possession, which was written to Heymann himself, showed that assertion to be untrue.

In an email that was not provided to the defense team until the last minute, Michael Picket, a Secret Service agent, wrote to Heymann on Jan. 7, “I am prepared to take custody of the laptop anytime after it has been processed for prints or whenever you feel is appropriate. As far as I know no one has sought a warrant for the examination of the computer, the cell phone that was on his person or the 8gb flash drive that was in his backpack.” It would be more than a month before Heymann obtained a warrant -– far too long, in Peters’ estimation, which means that the evidence found on the laptop could have become inadmissible.

Heymann has already been under scrutiny for egregious conduct during the Swartz affair. Aaron Swartz’s parents cited an overly aggressive prosecution as contributing to their son’s death. Charges seemingly confirmed by Quinn Norton who was a witness in the Grand Jury hearing against Swartz. Norton alleged that Heymann was uninterested in the facts of the case and more interested in finding a way to bring Aaron Swartz down.

Swartz’s partner, Taren Stinebrickner-Kauffman, also made similar allegations against Steve Heymann specifically.

Though JSTOR settled with Swartz in 2011, federal prosecutors continued to aggressively pursue the case, notably Assistant U.S. Attorney Stephen Heymann in Boston. He was “hellbent on destroying Aaron’s life,” Swartz’s partner Taren Stinebrickner-Kauffman said at last night’s memorial. She remembered how, during one court hearing, she tried hugging Swartz but he rebuffed her, saying: “I don’t want to show Steve Heymann that.” She added that “[Swartz] just couldn’t take it another day. The U.S. attorney’s office in Massachusetts must be held accountable.”

So far no one has been held accountable. In fact, Attorney General Holder has now publicly supported the Swartz prosecution, defending Heymann’s conduct as a “good use of prosecutorial discretion.” Given Holder’s own numerous failings and possible lawbreaking perhaps he views professional misconduct as good prosecutorial discretion.