Legal experts: Insanity defense difficult for Loughner

Veteran lawyers expect federal prosecutors to seek the death penalty

Published January 10, 2011 9:22PM (EST)

In an earlier time, the emerging portrait of a deeply troubled young man might have given Jared Loughner's lawyers the basis of an insanity defense. But John Hinckley's successful insanity claim after shooting President Ronald Reagan led Congress to raise the bar for federal court, making the task harder.

The Justice Department has not said whether it will seek the death penalty against Loughner, the suspect in the shooting of Rep. Gabrielle Giffords and the deaths of a federal judge, a congressional aide and four other people. But federal prosecutors already are moving forward with charges against Loughner, and veteran lawyers anticipate they will ask for him to be executed.

Many witnesses and ample evidence strongly suggest the government will have no trouble placing the gun in Loughner's hands at the Tucson shopping center where the shootings took place. Internet postings and material investigators said they found at Loughner's home suggest that he had prior contact with Giffords and might be planning something along the lines of Saturday's rampage.

Yet comments from friends and former classmates bolstered by Loughner's own Internet postings also have painted a picture of a social outcast with almost indecipherable beliefs steeped in mistrust and paranoia.

Before the attempted assassination of Reagan, Harvard Law School professor Alan Dershowitz said in a telephone interview Monday, "this would be a clear case of insanity, because the pre-meditation would not be seen as undercutting insanity, it would be part of demonstrating insanity." But under the post-Hinckley rules, he said, "that's a very uphill battle."

Public outrage over the jury's verdict in Hinckley's trial -- not guilty by reason of insanity -- prompted Congress to make it much more difficult to establish that claim in federal criminal trials.

The case against Loughner is at an early stage, as is his defense.

But several lawyers said prosecutors certainly are thinking about charging Loughner with crimes that would make him eligible to be executed.

Defense lawyers probably will spend their time making the strongest possible argument to dissuade prosecutors from pursuing the death penalty. "That's the task of his lawyer in the first instance," said Neal Sonnett, a Miami defense lawyer.

Among arguments that could be made in Loughner's defense is that, if not insane, Loughner was mentally impaired. That argument concedes that a defendant bears some responsibility for what he has done but lacks the guilt necessary to face the death penalty. The compromised state of mind sometimes is referred to as "diminished capacity."

Dershowitz predicted that federal officials will seek death for Loughner no matter what his lawyers argue. "The prosecution will seek the maximum punishment in a case like this," he said.

Loughner's defense team has not been completed: Local public defenders have requested that San Diego attorney Judy Clarke be appointed to the team. Clarke succeeded in negotiating a guilty plea and a life sentence for the Unabomber, Theodore Kaczynski. She also was part of the defense team for Timothy McVeigh, who was executed for bombing the Oklahoma City federal building in 1995.

Only McVeigh and two others have been executed in the federal system since the federal death penalty was reinstituted in 1988. Sixty other inmates are under federal death sentences, according to the Death Penalty Information Center.

If there is a trial and guilty verdict, discussion of Loughner's mental state will again be a factor in a separate court hearing before the jury deliberates over a sentence.

Even if Loughner were to avoid a federal death sentence, he still could face state murder charges that carry with them the possibility of execution, lawyers said.

"It's often the case that both jurisdictions would file charges and then sort it out later," said John Canby of Phoenix, a board member of the state association of criminal defense lawyers. "If for some reason, the feds didn't want to go for the death penalty or didn't get it, it would be available at the state level perhaps."

Loughner is charged with one federal count of attempted assassination of a member of Congress, two counts of killing an employee of the federal government and two counts of attempting to kill a federal employee.

Pima County Sheriff Clarence Dupnik said Monday that state charges also will be filed by the county attorney's office based on recommendation from his office. Dupnik said there's no rush because Loughner is in custody.

By Mark Sherman

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Death Penalty Gabrielle Giffords Jared Loughner