Spotting some deep issues in potential capital prosecution(s) of Jared Loughner

This AP article, headlined "Insanity Defense Could Be Difficult for Ariz. Shooting Suspect," talks through some legal issues surrounding the capital prosecution(s) of a high-profile mass murderer:

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, 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, and veteran lawyers anticipate they will ask for him to be executed....

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.

Arizona also has modified the insanity defense so that a defendant in a state trial no longer can be found not guilty by reason of insanity. Instead, the jury can deliver a verdict of guilty but insane, said Pima County Attorney Barbara LaWall.  "So the person is held at a state mental hospital, and if sanity somehow comes back, he's transferred to prison, not just let go," LaWall said.

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

A veteran of death cases, San Diego attorney Judy Clarke, led the team that represented Loughner at his court appearance Monday.  Clarke succeeded in negotiating a guilty plea and a life sentence for the Unabomber, Theodore Kaczynski.  She also helped spare the life of serial bomber Eric Rudolph and Susan Smith, convicted of drowning her two little boys....

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."...

LaWall said her office would handle all the other charges against Loughner, including for four deaths of people who were not federal employees, more than a dozen wounded and dozens more who were in the line of fire but not injured.  Her staff is researching whether state charges have to wait until the federal prosecution is complete.  "If it takes two years to prosecute in the federal system, I don't want to make all these witnesses and victims wait," she said.

LaWall said the lead prosecutor from her office on the case has handled dozens of capital trials and that a team of prosecutors would weigh whether to seek the death penalty.  She said at least two factors were present in favor of it -- multiple victims and, with the death of 9-year-old Christina Taylor Green, a victim under the age of 15.

I am not aware of any rigid doctrines that would prevent the local prosecutor from seeking to start a state capital prosecution ASAP for the murder of state citizens even though federal charges for other crimes are underway.  I can, however, imagine a number of challenging practical issues arising from state charges going forward now: would the feds need to release Loughner to state authorities to enable him to appear in state court to respond to state charges?  would a team of state lawyers need to be appointed to defend him on state charges?

More fundamentally, as charges unfold in either or both jurisdictions, the apparent mental instability of Loughner and the huge media attention surrounding this case will create challenging legal issues in any capital trial: can he get a fair trial in Tucson or anywhere in Arizona? can/will his lawyers raise a (novel?) claim that the Supreme Court's work in Atkins suggests that not merely the mentally retarded but also the mentally ill should be categorically ineligible for the death penalty?

I could go on and on, but I am sure that we will all have lots and lots of time to discuss and debate these issues and many others in the Loughner case.  I will be (pleasantly) surprised if any capital trial gets started before 2012, and it will surely be many years before Loughner gets anywhere near an execution (unless he were to waive all his appeals and be found competent to make this decision).

Related recent posts:

• An obvious and ultimate case for the federal death penalty
• Father of slain 9-year-old in Tucson calling for execution of shooter