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. . . [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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