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

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.