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September 22, 2011

Tucson shooter wants to attend his competency hearing against his lawyers' advice

This new AP article, which is headlined "Loughner wants to be at hearing," highlights just some of the challenges of representing a high-profile and mentally shaky murder defendant.  Here are the specifics:

The suspect in the Tucson shooting rampage wants to appear at a court hearing next week in Arizona despite objections from his lawyers that traveling from a Missouri prison facility to their mentally ill client's hometown would be disruptive.

Jared Lee Loughner has been at a prison facility in Springfield, Mo., since May 27 after he was found to be mentally unfit to stand trial.  Experts have concluded Loughner suffers from schizophrenia and are trying to make him psychologically fit to trial.

The disagreement between Loughner and his attorneys about his presence at a hearing Sept. 28 in Tucson surfaced in a transcript of a conference call between lawyers and the judge on Monday.  The transcript was made available late Tuesday.  In the end, U.S. District Judge Larry Burns, in a ruling released Tuesday, agreed with prosecutors that Loughner must attend the hearing.

Loughner has pleaded not guilty to 49 charges stemming from the Jan. 8 shooting that killed six and wounded 13, including Rep. Gabrielle Giffords.  Prison officials have forcibly medicated Loughner with psychotropic drugs after concluding he posed a danger at the prison.

Defense lawyers had opposed a request by prosecutors to make their client attend next week's hearing where Burns will consider whether it's probable Loughner can be made mentally fit for trial and whether to extend his nearly four-month stay at the prison by another eight months.

Loughner's lead attorney, Judy Clarke, told the judge she didn't think Loughner can help her advocate against an extension.  "He is on suicide watch.  He has been described as gravely disabled.  We think it's an unnecessary risk to bring him to a hearing," Clarke said, adding that she saw nothing in the law that requires him to be there.

Prosecutors said they couldn't go forward with the hearing without Loughner and cited a federal law that implies that Loughner has a right to be there and confront witnesses.

Dr. Christina Pietz, a psychologist treating Loughner, testified that Loughner wanted to attend the hearing and was disappointed when learning that it had been postponed from Wednesday to Sept. 28.  She said she believes Loughner has an ulterior motive to be in Tucson.  "He wants to visit his mother and father," Pietz said.  "In addition to that, he understands that there is a hearing to make a determination if he can be having an extended stay in Springfield.  And that would also mean that he would continue to be medicated."...

"If Mr. Loughner is incompetent, it appears to me he remains incompetent," Burns said.  "I don't know what good it would do to have him present at a hearing," Burns said, noting that his lawyers can't look to him for assistance because he hasn't been mentally competent.   Still, the judge ruled that federal law appears to require his presence and said he was reluctant to grant a waiver for Loughner's presence in court if he wants to be there.

On Wednesday night, Clarke filed a motion to obtain notes of Loughner's recent conversations with Pietz that "defense counsel had not previously been privy" to.  Clarke said the Bureau of Prisons "has withheld from the defense, while sharing with the prosecution, information, opinions and conversations pertaining to issues surrounding Mr. Loughner's competency and commitment, including statements he has made in response to questioning."

The hearing will mark Loughner's first court appearance since a May 25 hearing in which he was removed from the court after an outburst.  Less than an hour into that hearing, Loughner lowered his head to within inches of the courtroom table and then lifted his head and began a loud and angry rant.  "Thank you for the free kill. She died in front of me. Your cheesiness," Loughner said before U.S. marshals whisked him out of the courtroom.

Pietz said Loughner has made improvements.  Prior to being forcibly medicated, he didn't make eye contact, a symptom of psychosis. But now he maintains regular eye contact, his physical hygiene has improved and he paces less over the last few weeks, Pietz said.

September 22, 2011 at 01:58 PM | Permalink


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Why are we spending all this money when we already know what the outcome has to be, and will be?

Loughner is too crazy to get convicted in a criminal case, and too dangerous ever to see the light of day. So what's going to happen is that he's going to get put in some super secure facility for the criminally insane for the rest of his life.

Let's just get on with it.

Posted by: Bill Otis | Sep 23, 2011 10:29:29 AM

Bill has surprisingly missed the most interesting aspect of this news report.

Remember: This case is now embroiled in questions of whether or not prison officials can medicate Loughner for two reasons: (immediately) to mitigate the danger to himself and others that his current psychiatric situation causes in the detention facility, and (for longer term goals) to render him competent for trial in the case.

The very competent, very hard-working defense attorneys are concerned about the second of these points. They want him unmedicated, because they want him to remain incompetent so that he cannot be convicted of these multiple counts of murder.

They've previously fought hard to get a court hearing to precede any medication. But now they're saying defendant should not attend the hearing. In so arguing, they're contradicting two normal tenets of defense lawyering: the idea that a defendant should attend every substantive hearing (and that it should be reversible, structural error when he does not), and the idea that defense lawyers should accede to their clients' wishes about how to conduct a defense.

Why are the defense lawyers arguing against their otherwise cherished tenets now? Their argument is that Loughner's psychiatric instability makes him unsafe to himself and others-- precisely the reason BOP wants to medicate him.

Score this one for the feds...

Posted by: A lawyer | Sep 23, 2011 12:08:14 PM

I think its a good that Tucson shooter believing in his lawyer and he wants to attend his competency hearing against his lawyers' advice. He did 8 shooting that killed six and wounded 13.

Posted by: Bail Hearing Lawyer | Sep 27, 2011 12:30:24 AM

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