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United States v. Loughner: The Decision About the Death Penalty

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In United States v. Jared Lee Loughner, the federal case against the Tucson shooting suspect, the action now shifts from public disclosures about what happened at the Safeway supermarket on Jan. 8 to private conversations between federal lawyers in Arizona and Washington over whether the death penalty should be a sentencing option for the jury.

These talks -- between the U.S. Attorney in Arizona and the Justice Department, headed by Attorney General Eric Holder -- are required under an elaborate series of rules in the United States' Attorneys Manual. That federal prosecutor's bible has been bipartisanly crafted over the years to reflect a careful balancing of legal, political, and societal interests in potential capital cases. The import of the document, for our purposes anyway, is that a federal prosecutor can't seek the death penalty without permission from Washington, D.C., following an extensive and formalized review.

This probably explains why the government's initial indictment against Loughner last week contained only charges -- all for attempted murder, none for murder -- while the criminal complaint against him on Jan. 9, the day after the shooting spree, served up five charges. The missing charges in the subsequent document, the indictment, are the potential first-degree murder charges, which could bring a death sentence to Loughner.

My best guess is that this is because the U.S. Attorney for Arizona has, indeed, requested of the Justice Department that this case be made into a capital one -- or he is in the process of gathering the material he needs to make such a request. And a decision on whether to approve that recommendation, or not, has not yet been made by Washington (or at least, it's not been made public).

This means that U.S. Attorney Dennis K. Burke, the prosecutor currently in charge of the government's case, probably already has reached out to the Capital Case Unit (and then the Capital Review Committee) of the Criminal Division of the Justice Department. Burke is only "strongly advised" under the manual to counsel with the former, but he must run things by the latter. All of this is what Burke really meant to say last week when he was quoted in a press release: "This case also involves potential death-penalty charges, and Department rules require us to pursue a deliberate and thorough process."

So here is where this case is right now. Section 9-10,050 of the Manual states: "If possible, before obtaining an indictment charging a capital offense, the United States Attorney should make a preliminary determination of whether he or she will recommend that the death penalty be sought. If the case is sufficiently developed to allow the United States Attorney to make a pre-indictment determination that he or she will not recommend seeking the death penalty, the United States Attorney should submit the case expeditiously for review... prior to obtaining an indictment charging a capital-eligible offense, unless public safety requires obtaining the indictment more quickly."

Burke doesn't yet want to add the looming first-degree murder charges to the indictment against Loughner -- and perhaps hasn't even brought up those charges to the federal grand jury empanelled to consider the matter -- until he knows whether or not he's got a capital case on his hands. If there has already been a decision by federal authorities not to seek the death penalty against Loughner, it's likely we would have seen a broader and longer indictment right out of the gate. This strikes me as a case that is already "sufficiently developed" even though it's only two weeks old -- there is no John Doe. There are video surveillance tapes.

There are tactical reasons why the government would still be holding its cards close while Burke perhaps puts together his arguments for putting the "capital" in a capital case against Loughner.

From the Manual: "The prosecution memoranda, death penalty evaluation forms, non-decisional information forms and any other internal memoranda informing the review process and the Attorney General's decision are not subject to discovery by the defendant or the defendant's attorney." On the other hand, from the Manual: "In any post-indictment case in which the United States Attorney is considering whether to request approval to seek the death penalty, the United States Attorney shall give counsel for the defendant a reasonable opportunity to present any facts, including any mitigating factors, for the consideration of the United States Attorney" (emphasis added). The feds simply don't want Team Loughner involved or weighing in quite yet.

I don't blame Burke for treading carefully here. For both he and the Justice Department, there is no sense going much further with the indictment -- it requires special allegations in a capital case -- so long as there are any ambiguities about where the case ultimately is headed. Especially in this case. Since there appears to be no doubt about who did the shooting, and the main conflict exists over the reason behind it and the defendant's mental state at the time, the government's decision about capital punishment will likely determine every major decision that follows. Right down to whether Loughner subsequently lives or dies by lethal injection on federal death row at Terre Haute, Ind.

According to the Justice Department news release on Wednesday: "Burke emphasized that the procedure in any case which may result in a punishment of death requires a careful and deliberate process, and includes consultation with the victims of the crimes and their families, consideration of all evidence relevant to guilt and punishment, and consultation with all the law enforcement agencies investigating the case." The better and more thorough this review is, and the more private and confidential it is, the less susceptible to attack (pre- or post-trial) will be any subsequent death penalty charge against Loughner. Right now, in this otherwise roiling case, still waters are running deep over potential sentencing.

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Susan Atkins,terminal brain cancer, Manson follower did die in prison,Sept., 2009, although her husband did try to fight to have her released. It was Lynette "Squeaky" Fromme, I believe was released, she did try to assasinate President Ford. Patricia Krenwinkel, another follower, stabbing a person in the Tate/LaBianco Murders, 28 times and writing the words, "Helter Skelter," on a refrigerator in Blood, is said to be up for parole, and can be out by Aug 14, 2011. Manson according to writings, is said to have given up going in front of a parole board, now age 74.
Not one of the Manson followers or Charles Manson deserve freedom!
Jared Loughner, doesn't deserve to have much more time on Earth than the courts deem fit, and death penalty should be enforced in this case!

January 23 2011 at 7:02 PM Report abuse +2 rate up rate down Reply

Isn't the assassination of a federal judge an automatic death penalty case ?

January 23 2011 at 6:49 PM Report abuse +3 rate up rate down Reply

Didn't they let the follower of Charles Manson out, as she has allegedly terminal cancer? She had no regard for human life, massacring people in "COLD BLOOD," literally giving a C-section to Sharon Tate and killing both mother and unborn child, licking the blood in doing so, yet, this sick murderer won the right to be comfortable in her last days in her own home with the love and care of her family, and who knows how long she may live, and that she may be cured, will she then have to return to finish her sentence, or would the courts say, "TIME SERVED?"
Our justice system does need to uphold the law, make it tough on these violent offenders, not allow them plea deals, or due to illness, time served and released! DNA and other pertinent evidence to confirm a person is indeed the murderer, immediate death sentence, rape, robbery and domestic violence or childhood abuses, they need to not have plea bargains, no parole and serve the maximum sentence allotted by law!
Jared Loughner deserves nothing more than to be put out of his tormented mind, put to death immediately, no reprieve or waiting for a set date for death.

January 23 2011 at 5:39 PM Report abuse rate up rate down Reply

The murder did say that he had planned well before his crime. It is premeditated murder. Why the heck the parents and school didn't get him to a mental health center when he was younger is unbelievable.

January 23 2011 at 4:57 PM Report abuse -1 rate up rate down Reply

Why should there be any question about Jared Loughner's right to live? He gave up that right, with the first shot he fired. When will America stop catering to the criminal? Why should he deserve to live, he obviously didn't think those he murdered that day did, and it's clear, he doesn't put much stock in life, so why shouldn't he die? Kill him, we don't need someone like him on this side of hell, and we certainly don't want pay for him to have free room, board and medical attention the rest of his life. He is pure 100% evil, through and through, so he should feel right at home in hell. Death penalty all the way!!!

January 23 2011 at 3:39 PM Report abuse +3 rate up rate down Reply

Prosecutors and/or Defense Attornies can literally claim "INSANITY," as anyone in their right mind, not a sociopathic murderer such as this, literally, has to be insane to commit such a heinous crime against human lives! Yes, they can delve into his home environment, his socialization, and maturity, to establish if he did know right from wrong, or was this premeditation in murdering so many an act of desparation for attention, and he snapped, went over the edge, or is he just a seemingly cold, calculating, sociopathic murderer. If they do win on an insanity plea, he may spend time in a mental facility, then life without parole in a maximum secured prison, as so many have before him! "Son of Sam," David Berkowitz, does come to mind.

January 23 2011 at 3:18 PM Report abuse rate up rate down Reply

Is this even a question; if this is or isn't a "capital crime"? If eric holder dosen't have the stomach to execute loughner, the state of Arizona will.

January 23 2011 at 2:18 PM Report abuse +5 rate up rate down Reply

the U.S. ag needs torealize that the crime was thought of well in advanced. with the attempted killing of a politcal figure and the killing of a federal judge, that alone is a death sentence. the death sentance is to light of him. we the people of the U.S.have found him guilty of the crime so charged. just hang him. he has been tried.

January 23 2011 at 12:43 PM Report abuse +7 rate up rate down Reply
1 reply to lazybear98's comment

We all know what should be done, but we are forgetting all of the people that will scream that the death penalty is cruel and inhumane. Now if they could just tell us what the murderer was if not cruel and inhumane, but if he gets the death penalty, it will be drug out for years, while they appeal the verdict.

January 23 2011 at 9:53 PM Report abuse rate up rate down Reply

If any case screams for the Death Penalty it is this one. I really hope they are dotting the I"s and crossing the T's for an iron clad case. This was a calculated premeditated crime and he knew right from wrong. That is the legal standard for insanity knowing right from wrong. Not mental illness. Defense lawyers thrive on the insantity plea but it next to never works. Because the standard is very high.

January 23 2011 at 12:29 PM Report abuse +6 rate up rate down Reply

There shouldn't be a question about his getting the death penalty and immediately be put out of his misery! He took many lives, injured and traumatized a multitude of others, directly and indirectly. An innocent, vibrant 9 year old girl's life was taken, she will never have her proms, Sweet 16, Dance with her father at her Wedding, Graduations and children, her parents will never enjoy her joy in this life, he's stolen that from them, and the lives of others whom were trying to protect their loved ones, and many whom came to the aid of yet others or trying to protect themselves from this sociopathic murderer! Immediate Death Penalty, no appeals or pardons!

January 23 2011 at 12:21 PM Report abuse +8 rate up rate down Reply

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