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Legal Battle Over Tucson Defendant Jared Loughner's 'Real' Mug Shot

3 years ago
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We've all seen the photograph by now -- those of us who wanted to, anyway. In it, Jared Lee Loughner, the Tucson shooting suspect, stares directly into the camera, head shaved clean, eyes wide open, with a slight smirk that is, at best, unsettling.

If the photo were ever introduced at trial -- which is unlikely-- federal prosecutors might say it shows the ubiquitous "face of terror." Defense attorneys, on the other hand, likely would counter that it's some visible proof of their client's unbalanced mental state in the hours following his alleged crimes. Either way, the picture, released to the public Jan. 10 by the Pima County Sheriff's Department, already is an indelible public image from that deadly weekend.

But it turns out that the Loughner "mug shot" photo the world has come to know wasn't his official post-arrest booking photo. Those were taken by federal authorities, not the county sheriff's department, and they have yet to be released to the the public. On Friday, the San-Diego-based judge who is presiding over the Loughner case, U.S. District Judge Larry Burns, temporarily blocked the U.S. marshals from making the photos public, pending a hearing next Friday.

Judge Burns acted upon an emergency request from Loughner's attorneys. They argue that the release of the formal federal booking photos, just one month after the deadly shootings and wounding of Rep. Gabrille Giffords, would violate Loughner's privacy rights and jeopardize anew his right to a fair trial, free of unduly prejudicial pretrial publicity. The lawyers do not want to see a new round of sensational headlines accompanying release of the new photos just as public interest in the case begins to wane; the damage from the initial photograph, they might candidly concede, has been bad enough.

Defense counsel, in turn, sought help from Judge Burns after learning that someone -- exactly who is not yet known-- filed a request for the release of the photos under the Freedom of Information Act, which generally requires the goverment to make available official records unless they fall into certain specific exemptions. Mug shots are not typical public records, defense attorneys argue, citing the following language from a 1999 ruling by a federal trial judge in Louisiana:

. . . [A] mug shot is more than just another photograph of a person. Mug shots in general are notorious for their visual association of the person with criminal activity. Whether because of the unpleasant circumstances of the event or because of the equipment used, mug shots generally disclose unflattering facial expressions. They include front and profile shots, a backdrop with lines showing height, and, arguably most humiliating of all, a sign under the accused's face with a unique Marshals Service criminal identification number."

Loughner's attorneys also told Judge Burns that there is no reason to allow the photo's release under the Information Act because it is designed to make public evidence of "government conduct," not evidence of "private information." So far, only one federal appeals court, the 6th U.S. Circuit Court of Appeals, has ruled that booking photos may be shown to the public before trial. The U.S. Supreme Court has never squarely addressed or resolved the issue. Judge Burns asked prosecutors to respond to these defense arguments this coming week and we may not know the result until sometime after the Feb. 18 hearing.

Whether or not the judge ultimately orders the release the photos, the episode marks the first time in the short history of the case that defense attorneys have formally (and publicly) complained about the government's broad dissemination of information concerning their client. While it's too early to predict whether this suggests a strategy on the part of Team Loughner, it's surely an early sign that the defense is going to be more aggressive going forward in shaping the way he is portrayed in the court of public opinion.

The episode also begs the question: where were the defense attorneys before, when local law enforcement officials were releasing to the public the Loughner photo we've all seen? The short answer is: they weren't yet fully up and running on Jan. 10, they had no opportunity to know in advance that Arizona officials would show the image, and there was even some uncertainty over who would preside over the case (or hear an emergency motion). That's because all of Arizona's federal trial judges were in the process of recusing themselves in the wake of the death of Chief U.S. District Judge John M. Roll -- one of six people killed that day outside the Safeway in Tucson.

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57 Comments

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animal2605

this fuss could actually hit him. Any and all evidence should be in court and there is no reason his picture cant be shown. If I was a potential juror I would wonder what could be so bad about the picture that his attorney didnt want it shown and what they are trying to hide. Of course his attorney gets paid to try to pull strings to get him off or a lighter sentence. Arizona needs a law in where if they are a mental case and commit a crime, give them treatment then they do the time anyway. In reality, what is normal? What might be right to one might be wrong to another. Normal is established by what society says is normal. Still does that make them right? If thats the case then why are we having so much fuss over our constitution? Why is it always under attack and being reinterpreted? Is the views of normal always changing? If so then the only case for noramlcy is change. Change of ways of thinking and change of ways it is looked at.

February 18 2011 at 8:14 AM Report abuse rate up rate down Reply
Sandy K

Where is Wikileaks when you need them?

February 13 2011 at 2:14 PM Report abuse +1 rate up rate down Reply
KATHY'S FREE

"Actions speak louder than words! A picture can tell a thousand words." In the media photo, it shows his mental state at the time of the murders, his rampage! Nothing should be disguised and truth should be seen and told! He is a tormented sociopathic psychopathic murderer! Nothing should be disguised!

February 13 2011 at 9:54 AM Report abuse rate up rate down Reply
monsieurboo

The official one couldn't be any creepier than that punkin-haid one. For sure they won't introduce punkin haid at trial, talk about prejudicial. Of course the problem is, everyone in the country has seen punkin haid 20 million times by now and hopes to never see it again. Please Jesus. But looking at it objectively, I don't see a strong legal case for keeping the official mug shot private till the trial. Scarcely a usual and customary practice, or TMZ'd be out of business.

February 13 2011 at 6:32 AM Report abuse +4 rate up rate down Reply
Appaloosa

If TAXPAYER DOLLARS paid for the film, the camera and the wages of the person taking the pkotos, it would seem the photos are the property of the American TAXPAYER and we should have a right to see them.

February 13 2011 at 4:36 AM Report abuse +2 rate up rate down Reply
Cary

put that cripe to death he should not be able to live affter that he did he should be put in the gas chamber

February 13 2011 at 4:14 AM Report abuse +2 rate up rate down Reply
xtrememinded

I am curious if his head was shaved by the police to help create a "skinhead" like image of this guy because he looked too innocent or if the guy shaved his own head. I have a feeling that the image they do not want released shows him with hair and looking like a young normal kid.

February 13 2011 at 3:34 AM Report abuse -3 rate up rate down Reply
Keith

Is it really going to matter?

February 13 2011 at 3:07 AM Report abuse +3 rate up rate down Reply
nototherepubs

what legal rights does this guy have? he commited these horrific crimes, and there is no question of his innocence. he and his lawyers are abusing the legal system. he pleads not guilty, and his lawyers are making an issue of his mug shot, i think is a disgrace and a calculated abuse of the courts. i hope this guy doesn't get away with the horrific crimes he commited, due to a technicality.

February 13 2011 at 1:43 AM Report abuse +1 rate up rate down Reply
lucy

Any "lawyer"or "attorneys" that would fight for this mans rights (although not guilty untill proven) is in my book-worthy of a public hanging. This man is not crazy, he didn't just walk through a crowd and snap, he knew in his head what he was going to do. The bleeding hearts that want to write him mail, or marry him while he is in jail, need not write my thoughts off as being absurd by replying to this comment. They will not be read!

February 12 2011 at 11:10 PM Report abuse +4 rate up rate down Reply
1 reply to lucy's comment
willowreed

Lucy,
The only problem with your argument is that a lawyer, BY LAW, has to provide the best defense for his client that he or she can. IF they don't they can be disbarred.

February 16 2011 at 2:59 PM Report abuse rate up rate down Reply

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