Jared Loughner’s Legal Options Examined

The Arizona shooter appears before a judge Tuesday. Defense lawyer Gerald L. Shargel breaks down his options.

On Saturday night the Los Angeles Times and The Wall Street Journal broke the story that Jared Loughner, the man charged with the Tucson, Ariz., murder of six and the wounding of 13, including Rep. Gabby Giffords, will now be found competent to participate in the criminal court proceedings and will choose to enter a plea of guilty.

Competence to stand trial or to resolve the charges by a guilty plea is an issue completely separate from the question of whether Loughner was insane at the time he repeatedly pulled the trigger at that political rally on Jan. 8, 2011, outside a Safeway. In the 19 months that have passed since the shooting, forensic psychiatrists retained by both the government and the defense have largely agreed that Loughner was not then competent. But findings of incompetence are not taken lightly; in cases of this nature, the court is empowered to order that psychotropic drugs be administered (by force if necessary) to restore competence. The drugs given to Loughner appear to have worked. Lawyers for both the government and the defense are now expected to agree, when they appear before the judge on Tuesday, that Loughner is able to understand the nature of the proceedings against him and can assist his lawyers. A psychiatrist from the Federal Bureau of Prisons will report or give testimony that supports the trial lawyers’ view that Loughner is competent and able to understand and assist in his defense.

Perhaps the most important aspect of “assisting” the defense lawyers focuses on the client’s ability to make intelligent and rational decisions. However well counseled, it is the defendant in a criminal case who decides whether to go forward with a trial or to plead guilty. In finding the defendant competent, the judge is saying that Loughner is able to make that decision.

With his lawyers, a competent Laughner is faced with three options. The first, of course, is to stand trial and defend on the conventional premise that the authorities got the wrong man. It may be fairly inferred that little time, if any, was spent discussing that option. The proof that Loughner is the guilty man is light years beyond overwhelming. His writings confirm that the assault was long planned. It was Loughner who purchased the murder weapon in 2010. It was Loughner who was immediately captured and identified by a countless number of eyewitnesses. A stronger case cannot be imagined; conventional acquittal lies beyond reach of the damning evidence of guilt. Under this option there is a high risk that the death penalty would be sought and imposed.

The second option Loughner, having now been declared competent, would have been asked to consider: to proceed to trial, concede that he committed the murders and assaults, but defend on the premise that he is not guilty by reason of insanity. Here is where the lawyers had a lot more explaining to do, because an insanity defense, focusing precisely on Loughner’s mental state at the time of the shooting, was an option that certainly had to be given serious consideration. After all, doesn’t everyone realize (prospective jurors among them) that what Loughner did was the act of a deranged man?

Experienced defense lawyers, however, well understand that the insanity defense is a very difficult and unpromising choice. Prior to 1984, an insanity defense required the government to prove beyond a reasonable doubt that the defendant was sane. Just as with any other element of an offense, the burden of proof remained, at all times, with the government to disprove an insanity defense.

After the 1981 shooting of President Reagan, Congress passed the Insanity Defense Reform Act, a procedural sea change that reflected the outrage after the acquittal of would-be assassin John Hinckley Jr. by reason of insanity. Now, both federally and under Arizona law, insanity is an affirmative defense where the defendant has the burden of proof and must establish by “clear and convincing” evidence (only one rung lower than American law’s highest burden, “proof beyond a reasonable doubt”) that he suffered from a mental disease or defect that rendered him unable to appreciate that what he had done was wrong.

His lawyers would in all likelihood have told him that a successful insanity defense was at best a Pyrrhic victory. Unlike a conventional acquittal, Loughner would not go home after the trial. He would be committed to imprisonment in a facility for the criminally insane with virtually no hope of ever getting out.

And, then, there is the ever-present specter of the death penalty looming over Loughner’s head. If found guilty at trial, the death penalty would surely be pursued, whether by the federal government or the state of Arizona.

But there is a third alternative available to Loughner, one that apparently has been already chosen. The Supreme Court has recently noted that a full 96 percent of all federal criminal cases are resolved by guilty pleas. Plea bargaining has become the mainstay of many a criminal-defense practice. The objective of plea bargaining is always the same—to capture a benefit, whether large or small, for the client. What the defense lawyers obviously want to achieve in this case is agreement by both federal and state prosecutors that they will not seek the death penalty in return for the guilty plea. Loughner will be sentenced instead to a term of life imprisonment of one kind or another with no possibility of parole.

Prosecutors also gain benefits from plea bargaining in circumstances such as these. While an insanity defense may be a steep climb, Loughner’s long and tortured history of mental illness could actually prompt an acquittal by reason of insanity. And even if Loughner is convicted, Supreme Court authority does not allow the execution of an insane or incompetent person. Since Loughner’s mental state waves in and out of psychiatrists’ apprehension, there may be decades of legal and psychiatric wrangling before the matter is finally resolved, if it ever is. In other words, while Loughner may be sentenced to death, that sentence may never be carried out. A guilty plea with a sentence of life would bring much desired closure and finality.