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U.S. District Judge Larry A. Burns, whose home court is in San Diego, has been tapped to preside over the federal murder trial of Jared Lee Loughner, the 22-year-old defendant charged in the deadly shooting rampage in Tucson. Burns' involvement became necessary this past week after each of Arizona's federal trial judges -- 10 active jurists and eight senior members -- recused themselves from presiding over the case because it involves the murder of their former boss, Chief U.S. District Judge John M. Roll, who was killed during the attack on Rep. Gabrielle Giffords last Saturday.
Burns is a former prosecutor -- on both a state and federal level -- and a 2003 appointee of George W. Bush. He is also evidently a strong proponent of broad Second Amendment rights. Last May, he was quoted (randomly, it seems, in a story involving Google and privacy rights) as saying: "I'm concerned about privacy. We have a gate at our house and it's fenced ... and then I have about six handguns." Although the Loughner case has renewed debate across the nation about gun control and gun rights, the issue almost certainly won't come up at trial. Evidence made public so far indicates that the weapon used in the attack was legally purchased.
Burns also was a magistrate judge before he got the promotion to the federal trial bench. He was picked for the Loughner case by 9th U.S. Circuit Court of Appeals Chief Judge Alex Kozinski, who explained his reasons for the selection in an interview with The Recorder, a law-oriented publication in California: "I wanted a judge who [was] well-respected, and had the reputation of being fair and well thought of by both sides," Kozinski told The Recorder, "and I wanted to have a judge who had some experience with the federal death penalty because that's a possible situation here."
Burns reportedly has a solid reputation among the lawyers who litigate in his court. One San Diego attorney described him as "even tempered," "well-liked and extremely bright." A graduate of the University of San Diego School of Law, he is probably best known around California for his recent involvement in the long-running case concerning the Mount Soledad war memorial, near La Jolla, which includes a 43-foot-high cross. Judge Burns ruled that the cross' placement on public land did not violate the Establishment Clause of the First Amendment.
In his 36-page ruling issued on July 29, 2008, Burns wrote:
"The Latin cross is, to be sure, the preeminent symbol of Christianity, but it does not follow that the cross has no other meaning or significance. Depending on the context in which it is displayed, the cross may evoke no particular religious impression at all...The cross has a broadly-understood ancillary meaning as a symbol of military service, sacrifice, and death; it is displayed along with numerous purely secular symbols in an overall context that reinforces its secular message."
Just 10 days ago, the 9th U.S. Circuit Court of Appeals disagreed, reversing Burns' ruling.
The 56-year-old jurist also presided over the federal bribery case against Randy "Duke" Cunningham, the former California congressmen who pleaded guilty to the charges against him in 2005. Burns sentenced Cunningham to hard time in 2006, but because that case never went to trial it's hard to read too much in the judge's work on it. Nor is it possible to get much insight into Burns' handling of a high-profile trial in one of the other notable cases he's worked on, one involving a Mexican drug cartel. That case, too, resulted in guilty pleas which precluded a trial -- a scenario which is certainly possible in the Loughner case as well, given the strength of the evidence against him.
Defense attorneys are expected to ask to have the case moved out of Tucson, or even out of Arizona, because of prejudicial pretrial publicity and concerns over Loughner's ability to get a fair trial in the jurisdiction where the shootings took place, leaving six dead and 14 wounded. Like Burns, lead defense attorney Judy Clarke also is based in San Diego, leading some court watchers to speculate that the federal murder trial may take place in Southern California.
Burns will likely to have to make critical pre-trial rulings involving the mental state of the defendant, either as a precursor to a formal insanity defense or otherwise. And may have to deal with the potential of a death penalty as a sentencing option. Attorney General Eric Holder will determine whether the charges against Loughner merit turning the case into a capital one.
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