The Aaron Swartz Case

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. shg says:

    Would you consider spelling his name correctly in your title? Swartz. And as long as you’re editing perhaps you could add a word to clarify the opening three of this post, “I don’t anything”?

    Thank you.

  2. Gerard Magliocca says:

    Sorry about that. I posted the wrong draft. Fixed now.

  3. shg says:

    Thanks.

    It’s interesting that your question is to prosecutors, as the first line of “defense” is the defense. While it is rare, some defendants manifest suicidal tendencies during the course of a prosecution, and when defense counsel gets any sense of it, the common practice is to get them into treatment rather than notify the prosecutor and ask that the government’s posture change to suit the defendant’s mental state.

    If it turns out that in response to your question, prosecutors would be inclined to modify/soften their stance, that would suggest I’ve been doing it wrong all these years, and should either encourage my clients to be more suicidal or, upon recognizing any tendencies toward suicide, get on the horn with the prosecutor right away. Treatment can always wait.

    Of course, as a lawyer, I’m not particularly well suited to diagnose mental issues, so it’s always possible somebody could be faking and I wouldn’t know the difference.

  4. Gerard Magliocca says:

    Well, the faking or exaggerating of suicidal tendencies is a risk, but that may just be something that prosecutors have to live with. But thanks for taking the time to comment on what is, admittedly, a delicate subject.

  5. Orin Kerr says:

    SHG,

    I have no experience with this, so I’m interested in hearing more about yours. How often has this come up in your practice over the years? Get them intro treatment how? Have you heard of cases in which prosecutors were notified and responded by rethinking the charges and perhaps offering a less sever plea offer or dropping some charges? If so, what kinds of cases? If you could shed more light on this — either here or in a post at Simple Justice — I’m sure a lot of folks would be interested.

  6. shg says:

    Hey Orin. I’ve lost one client to suicide over the years. A few to murders, but that’s a different issue. I’ve had a number who, based on my lawyerly diagnosis, suffered from depression, some severe enough that they needed immediate treatment.

    Your question has three parts, for defendants who are in, out, and out but without money. The detained defendants are the biggest problem, as they get no help but are put on suicide watch. They hate that, and if someone wasn’t suicidal before, they will be soon.

    For the out defendants, the ones with money and family are the easiest to help, as they usually have families who care and cooperate in getting them into treatment. The ones without money are a problem, whether because there is no one to help or they can’t afford anything but public care, which is often of poor quality and very hard to get into. It is terribly overburdened and few beds are available, at least when you need them.

    I have spoken with prosecutors, very cautiously, at times. Not every case is ripe for it, as the depression and hopelessness really can’t be attributed to an overly severe prosecution or plea offer. Sometimes, it’s just the mental state and sensitivity of the defendant, and while the prosecution may have triggered the suicidal concern, the case or plea is pretty ordinary.

    Does it change anything? Once, a prosecutor played it a bit softer (but just a bit) in reaction to my asking if he would feel better if the defendant offed himself. “Would that make you happy?”

    In other instances, the response was “he should have thought about that before he did the crime,” the typical response.

    Obviously, plenty of variables involved, but my expectation is that prosecutors don’t see it as their problem any more than they see themselves as unreasonable in the first place. As I expect you know, the answer to most questions is that the defendant made his choice and has to live with the consequences.

  7. nidefatt says:

    Yeah, we had a juvenile up for rape who essentially was placed in solitary at the adult jail while awaiting trial. No pity. Finally got him out when we convinced the judge that his continued confinement would violate the 8th amendment.