Even though he might be stealing headlines because he’s charged with murdering a federal judge and attempting to murder a U.S. Congresswoman (among others) Jared Loughner is no different than any other defendant in a criminal prosecution.
His case does however present some unique and interesting issues:
Who will represent such a despised and high profile defendant?
All indigent criminal defendants have a Sixth Amendment right to assigned counsel. Since Arizona public defenders were not willing to represent him, they obtained the services of an experienced San Diego attorney, Judy Clarke, who is no stranger to high profile cases. Clarke has now been appointed by the court to represent Loughner.
Will there be a change of venue?
Given the fact that he’s charged with the murder of the chief judge of the federal court in his district, all federal judges in Arizona have voluntarily recused themselves. Additionally, the 24/7 news coverage of the case makes it likely the request to change the trial location will be granted. However, the fact that everyone may have heard about the case doesn’t mean that people are incapable of fairly listening to the facts and rendering a verdict in accordance with the evidence.
Will there be more than five charges filed?
Although a federal complaint has been filed, a more formal federal indictment will follow. So far Loughner has only been charged with two counts of murder, even though six people were shot to death. This is because the feds only have jurisdiction over the victims who were federal employees. The federal case will take priority for the time being, but the other victims have certainly not been forgotten; their cases remain in the jurisdiction of the State of Arizona and indictments will certainly be forthcoming.
Will Loughner assert the insanity defense?
Many have diagnosed Loughner from afar as a "paranoid schizophrenic." The burden is on the defendant to prove by clear and convincing evidence that at the time the crimes were committed he was suffering from a severe mental disease or defect which made him incapable of distinguishing right from wrong. Remember, the fact that Loughner may be mentally ill does not mean he is legally insane.
Is Loughner legally insane?
As one who has prosecuted homicide cases where defendants have proffered the insanity defense, I can tell you Loughner has his work cut out for him.
In a safe found in Loughner’s home, authorities found a letter from the Congresswoman, and notes saying, "I planned ahead," "My Assassination," "Die Bitch," which authorities believe was a reference to Giffords.
In September 2010, just two months before allegedly purchasing the gun used in the shooting, Loughner made an attempt to expunge a 2007 drug paraphernalia charge from his record (unbeknownst to him it had already been expunged).
Postings made on a MySpace page in Loughner’s name said, "goodbye" and "please don’t be mad at me." (Does that sound like someone who doesn’t know that what he did was wrong and consequently might anger people?)
According to authorities, on the morning of the shooting rampage, Loughner ran a red light but was let off with only a warning -- he apparently communicated with the officer, produced his license, and showed no signs of lunacy.
Loughner asserted his Fifth Amendment right to remain silent shortly after being arrested (you don’t turn insanity on and off like a light bulb).
What if Loughner successfully proves he was insane at the time of the shooting in the federal court?
Even if he successfully raises an insanity defense to the charges in federal court, he will have to prove it all over again in Arizona state court, and face the much harsher Arizona law.
Arizona does not allow a verdict of not guilty by reason of insanity. This means that even if Loughner proves an insanity defense in Arizona, he doesn’t defeat the charges against him. The jury can return a verdict of guilty, but insane -- an outcome which would ensure that even if Loughner recovered enough to leave a state mental institution, he wouldn’t be released, he’d be sent straight to state’s prison.
Judge Jeanine Pirro is host of "Justice with Judge Jeanine" which debuts Saturday evening, January 15 at 9 p.m. ET on Fox News Channel. She is also host of "Judge Jeanine Pirro." She is the former district attorney of Westchester County, New York.