In the Pursuit of Justice

There's been a lot of media coverage of the horrific shooting in Arizona this weekend, so I'm not going to duplicate what's already out there. However, I wanted to help explain what the next steps will be in bringing Jared Loughner, the individual currently in custody for shooting Congresswoman Gabby Giffords in Arizona over the weekend, to justice.

Right now, Loughner is charged in federal court with five counts against him - two counts of murder and three counts of attempted murder, all of federal employees. The federal employees attending Congresswoman Giffords' "Congress on your Corner" gathering at a local Safeway included members of her staff and a federal judge, Chief Judge John Roll of the United States District Court for Arizona. While the attempted murder of a member of Congress is a very serious crime, it is the killing of a federal judge and the killing of a Congressional staffer that makes Loughner eligible for the death penalty (under 18 U.S.C., section 1114).

Loughner can also be charged by Arizona for state crimes. (This has not happened yet). State prosecution of Mr. Loughner would not be considered double jeopardy because, even though the incident giving rise to the criminal violations is the same, the crimes alleged are different. To give a simple explanation: an individual can be charged in federal court for transporting an unlicensed firearm across state lines (a federal crime), and then can be charged in state court for using that weapon in an armed robbery (a state crime). In this case, the federal indictment does not include charges against Mr. Loughner for the killing of nine-year old Christina Green and three other victims who were not federal employees.

Two reasons Arizona might choose to prosecute Mr. Loughner are (1) to make the statement that criminals who engage in acts of violence against citizens of the state will be prosecuted to the fullest extent of the law, and (2) to impose a different, i.e., harsher, sentence than has been imposed against Mr. Loughner in federal court. If Mr. Loughner is convicted in federal court but does not receive the death penalty, Arizona could choose to prosecute him if it wanted to seek the death penalty against him. Arizona could also choose to prosecute Loughner even if he does receive the death penalty in federal court in order to expedite the execution of the death sentence or to make doubly sure that the death sentence will stand up on appeal.

Given the seriousness of the charges against Mr. Loughner, the federal public defender's office in Arizona has lined up Judy Clarke, a very experienced and high-profile public defender to represent him. Clarke has represented other very notable clients, including the Unabomber and Zacarias Moussaoui, the Al Queda operative charged with conspiracy related to the September 11 attacks. Both of these clients were convicted but managed to avoid capital punishment. Clarke's appointment to this case can be interpreted as a sign that the focus of any trial against Mr. Loughner will not be on the extent of his culpability, but rather on the nature of the punishment he receives.

Lastly, while all of the evidence against Mr. Loughner is not currently available to the public as the investigation is still underway, the few details that have been leaked in the media suggest that Mr. Loughner will have a difficult time invoking an insanity defense. Under federal law, a defendant can employ an insanity defense when, "as a result of a severe mental disease or defect," the defendant was "unable to appreciate the nature and quality or the wrongfulness of his acts." There's not much doubt that Mr. Lughner suffered from some kind of mental disease . However, if the press reports indicating that Mr. Loughner prepared extensively for the commission of the crime and that he fully intended to target Congresswoman Giffords are indeed true, Loughner will have a hard time contending that he did not appreciate the nature and quality of the wrongfulness of his alleged crimes.