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Elliot Peters Discusses Internet Activist Aaron Swartz, Lance Armstrong, 'Prosecutorial Excess'

American Lawyer

This month Elliot Peters' young client committed suicide. Another client confessed his sins to Oprah. And yet another emerged as a poster boy for the feds' controversial medical marijuana crackdown in California. Internet activist Aaron Swartz, disgraced cyclist Lance Armstrong and Matthew Davies, the operator of a licensed pot dispensary, have each been making national news headlines, often a hallmark of Peters' cases. The Recorder sat down with the former prosecutor at his law firm, Keker & Van Nest.

Swartz, a 26-year-old computer programmer, faced federal charges for hacking computer networks at the Massachusetts Institute of Technology and downloading millions of academic journal articles. As the case approached trial, Peters and his team took over.

Q: How did you find out about Aaron's death and what was your first thought?

A: I remember it so well and it was so painful. It was Friday, the 11th. I had spent all afternoon working on the case. We had just been given a lot of new discovery information by the government. We probably should have been given it a long time before. I had spent the afternoon reading this material very carefully to prepare for a suppression hearing on Jan. 25. I kept running down the hall to my partner Dan Purcell's office to tell him about some new document that I'd found. I printed out all this stuff to take home and work on over the weekend. I was driving home, and I got an email from Aaron's dad, Bob Swartz, which just said Aaron committed suicide. And so I pulled over, and I called Bob, and he was a wreck, and he told me that it was true.

Q: Relatives of Aaron Swartz have accused federal prosecutors in Boston of "intimidation and prosecutorial overreach." Do you believe that the actions of the U.S. attorney's office contributed to his suicide?

A: It's really hard for me to say what contributed to a person's decision to take their life. I've represented people in a lot of very, very tough situations where they were facing some very hard consequences or even unfair consequences and people haven't done that. ... But I can say that I think the prosecution of Aaron was fundamentally unfair. I think the way the plea negotiations were handled was even worse. And as I got into the discovery and I learned more and more about the merits of the case, I thought the way the case was handled on the merits was even worse than that. So I have some real problems with the way the United States government and the Department of Justice was treating Aaron Swartz. And in the middle of it all, he killed himself.

Q: What are some examples of actions that were taken by the U.S. attorney's office that you think were inappropriate?

A: One is saying if you want to plead guilty you have to plead guilty to 13 felonies, and we'll insist on a federal prison sentence of either four months or six months. And then saying, but if you go to trial we're going to take the position that your sentence should be seven years. Under the sentencing guidelines, there is no sense or justification for that kind of disparity between a plea offer and what they say the case is worth after trial. I think that was just coercive. Second of all, I just don't think the case was righteous to begin with. I don't think that Aaron was guilty. I don't think that the way the Computer Fraud and Abuse [Act] statute was used in that case was appropriate. I think they were putting a lot of pressure on an innocent guy and that they should have used some discretion and recognized this was a borderline MIT prank with a political message. It wasn't a big federal criminal case and should have been viewed that way. But those people were not capable of seeing it that way.

Q: What lessons do you believe that prosecutors and defense lawyers should take from this tragedy?

A: It's very important that people of wisdom and humanity are making decisions and that not all those decisions are just "how tough can we be?" Aaron's case should have been a deferred prosecution, a case where they say keep your nose clean for two years and we'll dismiss this. They shouldn't have tried to make Aaron into a felon and send him to federal prison. And I gotta believe had that not been going on, it's likely that Aaron would be here today. It also makes me think about the federal judiciary. At the end of the day, federal judges have a tremendous responsibility when they sentence people. I remember saying to the prosecutor in this case, if we go to trial and lose — which we won't — but if we do, and we have a sentencing at the end of this case, a federal judge who has some wisdom and humanity is not going to see it the way you see it. So I think we could go to trial and do better than your plea offer as a result of the trial and your idea that seven years for Aaron after the trial is what he gets is just crazy. There are cases where the eager beaver prosecutor is taking way too hard a line, but a wise federal judge is going to see it for what it is and not just pile on the defendant.

Along with partner John Keker, Peters represented Armstrong in connection with a federal inquiry into doping. Prosecutors in L.A. closed the investigation in 2012 without filing charges. This month Armstrong admitted to using banned substances in a prime-time interview with Oprah Winfrey.

Q: Does your firm presently represent Lance Armstrong and did he seek your advice about the interview with Oprah Winfrey?

A: I'm not going to talk about that.

Q: In general, when does it make sense for the target of a criminal investigation to engage with the media and what are the risks?

A: It almost never makes sense for a target of a criminal investigation to engage with the media. In Lance's case, I don't believe he is the target of a criminal investigation anymore. Any engaging with the media that's done at all is more frequently done by a lawyer and then has to have a really, really specific legal purpose. There are times when it's worth publicizing things that are going on in a case.

Q: You represented Major League Baseball players after federal prosecutors seized the results of players' drug tests without a clear warrant. Do you believe the government's investigations of professional athletes have been tainted by overzealousness?

A: Certainly, the sports-related federal doping investigations have been tainted by a lot of leaks and leaks of federal grand jury information. I don't know who's doing it or exactly how, but I've been complaining about it. I complained about it in Lance's case. I complained about it in the baseball