How Should Prosecutors and Defense Counsel Respond When A Criminal Defendant May Be Suicidal?

One of the heavily criticized aspects of the Aaron Swartz prosecution is that the prosecutors were unsympathetic when Swartz’s lawyer told them that Swartz was suicidal. Over in the comments at CoOp, defense attorney Scott Greenfield of the Simple Justice blog shares his experience with how most defense attorneys and most prosecutors deal with this terrible problem:

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.

I asked Scott to elaborate, asking him, “How often has this come up in your practice over the years? Get them into 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?” Here was Scott’s response:

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.

So that’s what usually happens, at least according to Scott’s experience. And it opens up the broader question: What should the role of defense attorneys and prosecutors be when defendants may be suicidal? Who should be chiefly responsible for obtaining treatment? Should prosecutors have a responsibility to rethink their charges when they learn a defendant may be suicidal? My quick look on Westlaw’s JLR database did not reveal anything on the subject, so I thought I would open it up for comments from readers both who have thoughts on these issues and who might have experience with them or know of the relevant literature I have missed.