Legal Strategy Could Hinge on Mental Assessment
By BENJAMIN WEISER
Published: January 11, 2011
The disturbing photograph of Jared L. Loughner that was released after his arrest, as well as the writings and statements attributed to him, seemed to point to a man with a mental disorder.
Pima County Sheriff's Office
A photograph of Jared L. Loughner released by the Pima County Sheriff’s Office.
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Even if that is found to be true, the lawyers for Mr. Loughner, the 22-year-old college dropout who has been charged in the Tucson shootings, may find it difficult to mount a successful insanity defense.
The rules regarding such a legal strategy were tightened over the years in the wake of the verdict for John W. Hinckley Jr., who was found not guilty by reason of insanity in the 1981 assassination attempt on President Ronald Reagan. The insanity argument is now seldom successful, legal experts said.
What is more likely, they say, is that Mr. Loughner’s lawyers will use any mental health problems they find to stave off the death penalty, if he should go to trial and be convicted.
His lawyer, Judy Clarke, is likely to begin a far-ranging investigation of his life and family history, going back several generations to learn as much as possible about his origins, the environment in which he grew up and how he has functioned in society, said David I. Bruck, who worked with Ms. Clarke in the defense of Susan Smith, the South Carolina woman who drowned her two young sons in 1994 and who received a life sentence.
Ms. Clarke “will present a case which is focused, grounded in the facts, thorough and heartfelt,” said Mr. Bruck, a veteran death-penalty lawyer and a professor at Washington and Lee University in Lexington, Va. “She won’t try to sell what she wouldn’t buy. She’s going to find this man’s story, and once she’s found it, she’s going to be confident about telling it to a jury.”
But just where Ms. Clarke will tell that story — and before how many juries — is unclear.
The defense could ask that Mr. Loughner’s case be moved from Arizona out of concern that potential jurors might be influenced by news accounts.
Mr. Loughner (pronounced LOF-ner) may also have to be defended in separate trials brought by federal and state prosecutors, who are both likely to seek the death penalty.
The federal government has charged Mr. Loughner in the killings of two federal employees — Judge John M. Roll, the chief federal judge for Arizona, and Gabriel Zimmerman, an aide to Representative Gabrielle Giffords — and the Pima County attorney, Barbara LaWall, has said she will “pursue charges on behalf of the nonfederal victims.”
Her office has been researching the issue of whether it can proceed at the same time as the federal prosecutors, or whether the state’s case will have to wait until the United States attorney’s office has finished its work.
“I think initially there’ll be some confusion as to who’s going to go first, and how fast they are going to go,” said Rory Little, a former Justice Department official in the Clinton administration who teaches at the Hastings College of the Law in San Francisco.
“I would guess that you’re having some pretty intense discussions now between the federal government and the state side, and it wouldn’t surprise me to see the case divided up,” he said.
Either way, federal and state prosecutors would have two opportunities to seek the death penalty against Mr. Loughner if they chose to do so. That occurred in the case stemming from the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, which killed 168 people, including infants and children in a day care center. One defendant,Timothy J. McVeigh, received the death penalty at his federal trial, but a second, Terry L. Nichols, did not.
Mr. Nichols was tried again, on state charges, in McAlester, Okla. He was again spared execution.
Beth A. Wilkinson, a member of the federal prosecution team in the Oklahoma City case, said of the Tucson shootings: “In a crime like this, it’s also very important to recognize the state’s interest in prosecuting murder and attempted murder of their citizens. The vast majority of murder cases are prosecuted by state authorities.”
Neither the Justice Department nor the Pima County attorney’s office have said if it would pursue the death penalty against Mr. Loughner.
One of Ms. Clarke’s critical early steps will be to argue against any federal death-penalty case through a written submission and in meetings with federal prosecutors in Arizona and with the Justice Department’s Capital Case Committee in Washington. Attorney General Eric H. Holder Jr. will have the final say.
Aitan D. Goelman, who also was involved in the federal prosecution of the Oklahoma City case, said he doubted that an effort to block a death-penalty prosecution would prevail. “These kinds of cases are essentially the reason we have the federal death penalty,” he said.
The federal complaint against Mr. Loughner charges him with the murders of Judge Roll and Mr. Zimmerman, along with the attempted murders of Ms. Giffords, who was struck in the head but survived, and of two of her staff members, Pamela Simon and Ronald Barber, who were both wounded and were expected to recover.
One complication is that Mr. Loughner’s lawyers can only pursue the insanity defense if the defendant approves, said Stephen J. Morse, a professor of law and psychiatry at the University of Pennsylvania.
“It cannot be imposed on a defendant over his objection,” Professor Morse said.
He said that lawyers in federal court tend to regard the insanity plea as “a defense of last resort, because juries are skeptical of claims that a defendant was not responsible for his actions.”
Still, he said, given early accounts of the evidence that has surfaced in the Tucson case — that Mr. Loughner appears to have carefully planned his attack on Ms. Giffords — his only chance might be to invoke such a defense.
“Based on the early information,” Professor Morse said, “I would be surprised if he didn’t, because he seems to have no other defense as far as I can tell.”
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