Jared Loughner's Trial: Previewing the Tucson Massacre Case


Andrew Cohen

Legal Analyst
The federal criminal case against Tucson shooting suspect Jared Lee Loughner looks to be a straight-forward affair. He was reportedly tackled to the ground inside the Safeway supermarket Saturday morning after firing dozens of rounds from a gun he allegedly purchased at a local store. There were many eyewitnesses to the crime, including wounded survivors of the attack.

Loughner left behind, according to the criminal complaint against him, several written "statements" suggesting premeditation, intent and a specific target. There is also, says the FBI, relevant video surveillance tape of the incident that almost surely will be shown, with devastating effect, to jurors at trial. There are no other suspects and, so far, no viable conspiracy theories or unindicted co-conspirators. There will be no need to battle over DNA evidence or government informants.

In a preliminary appearance in court in Phoenix Tuesday afternoon, Loughner spoke briefly with U.S. Magistrate Judge Lawrence Anderson, who read to the 22-year-old suspect the five first-degree murder and attempted first-degree murder charges against him. Loughner did not say anything significant or revealing but was, from media accounts, polite and succinct in the courtroom. "Good luck to you, Mr. Loughner," Judge Anderson said as the defendant was led out of court, handcuffed, at the end of the brief appearance.

The next hearing -- which will likely touch upon detention and other preliminary matters -- will take place on Jan. 24, but it is unclear at this time which judge will preside over that proceeding or any of the subsequent proceedings. Judith Clarke, the veteran criminal defense attorney assigned to represent Loughner, told Judge Anderson that she objected to the use of any of Arizona's federal trial judges because of their evident relationship to their former boss, Chief U.S. District Judge John M. Roll, who was slain in Saturday's attack. Moreover, according to reports, all of the Tucson-based federal judges already have recused themselves from the case because they believe they cannot fairly judge Loughner.

This means another federal trial judge, likely from within the 9th Circuit's jurisdiction, will likely be called to Arizona to preside over the case. It is also possible that Clarke will subsequently ask to change the venue of the trial -- beyond Arizona or to a smaller city within the state -- because of prejudicial pretrial publicity against her client and the possibility that he will not be able to get a fair trial under the Constitution in Tucson or Phoenix. Change of venue motions almost always fail, however -- even Jeff Skilling couldn't get his Enron trial moved out of Houston -- and it is unlikely the judge who ultimately presides over this case would move it out of state.

The case is in federal rather than state court because it is a federal crime to murder, or attempt to murder, a federal official. Into this category falls Judge Roll as well as Rep. Gabrielle Giffords and several members of her staff, all of whom were acting in their official capacities at the time. Although federal murder cases are rare, they are not unheard of and there are currently 60 prisoners on federal death row, convicted and sentenced by federal juries and judges. Although Loughner has been charged with first-degree murder, it is too early to know whether his case will become a capital one -- that call is left to Attorney General Eric Holder, who does not have to make it at this time.

Clarke's presence as a defense attorney is good news for Loughner and may help facilitate as orderly a process as can otherwise be expected in these circumstances. Clarke is an excellent and well-respected lawyer. She has represented other high-profile defendants before in a productive and realistic fashion. Thirteen years ago, for example, she helped represent Theodore Kaczynski, the Unabomber, who was charged with capital murder under federal law for a series of bomb attacks. As you might imagine, Kaczynski was a terrible client -- and a raucous defendant. He tried to fire his lawyers. He tried to commit suicide. Eventually, however, the Unabomber pleaded guilty, avoided the death penalty, and now is serving a life sentence without parole at the Supermax prison near Florence, Colo.

More recently, in 2005, Clarke represented Eric Robert Rudolph, the Olympic Park bomber, and again the case resulted in a guilty plea, a life sentence without parole, and no death penalty. Like Kaczynski, Rudolph now sits in Supermax. Although it is far too early to predict the outcome of United States v. Loughner, it is not difficult to imagine that he will end up there as well, if not at the federal death row in Terre Haute, Ind. That will depend, first, upon Holder's decision to make Loughner eligible for the death penalty and, second, upon whether and to what extent Loughner and Clarke decide to contest the guilt-innocence phase of the case or merely the sentencing phase. It will also depend upon whether Loughner decides to keep Clarke as his attorney or ultimately attempt -- as Kaczynski did -- to represent himself.

Whether that happens, it is possible that we will see some sort of insanity defense raised on behalf of Loughner. Under federal law, the defendant who asserts this defense has the burden of proving with "clear and convincing evidence" that "at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts." It is very difficult to succeed with such a defense and already, from information already made public about Loughner, there are reasons to think it would fail here. Writing the word "assassination" and "I planned ahead," as Loughner reportedly did, could reasonably be construed by a judge or a jury as signs that he knew very well he was about to commit a wrongful act.

If there is a formal insanity defense, it would follow an extensive psychiatric examination of Loughner by government and private doctors. It is more likely, however, that Loughner's mental state leading up to Saturday's assault will be a vital factor during the sentencing phase of his trial, presuming he is convicted or pleads guilty to the charges against him. And it is here, at this point if we ever get there, that Loughner's writings and behavior before the shootings, both what we now know and what is later discovered in the course of the case, would be introduced as mitigating evidence.