SAN DIEGO -- News organizations failed to persuade a federal judge Friday to release a second mug shot and search warrant records involving the suspect in the Arizona shooting rampage that killed six people and wounded U.S. Rep. Gabrielle Giffords, among others.
U.S. District Judge Larry A. Burns said he was leaving it up to the U.S. Marshals Service to decide whether to release the mug shot of 22-year-old Jared Loughner taken in Phoenix while in the custody of the agency.
Burns also held off on unsealing search warrant records that show what was seized from the home of Loughner after the Jan. 8 shooting. The judge said the investigation is ongoing and another indictment is expected to bring additional federal charges.
The unreleased photo is a different image than the mug shot released by the Pima County Sheriff's Office two days Loughner was arrested.
Defense attorneys argued the new photo invades Loughner's privacy and doesn't serve any legitimate public interest. In addition, mug shots reveal people at their most humiliating moments, the lawyers said.
Prosecutors described the photo as showing Loughner with abrasions on his face and a cinderblock-wall background.
Burns said he did not agree the photo would invade the suspect's privacy or harm his chance at a fair trial, but he said he didn't have the authority to rule on the matter because the 6th Circuit requires the U.S. Marshals Service to release the photo. Two of the 15 media outlets that have requested the photo are in the 6th Circuit area.
"We're making these pictures seem way more ominous than they really are," Burns said, adding the second mug shot is much "tamer" than the first one that has been widely circulated on the Internet. That photo showed Loughner wide eyed and smiling.
Defense attorneys had argued the release of the search warrant documents also would harm Loughner's chances of a fair trial.
Loughner has pleaded not guilty to federal charges of trying to assassinate Giffords and of killing two of her aides. He was not at the hearing in San Diego.
Burns said he disagreed with defense arguments but would hold off for now because of the ongoing investigation and the expected indictment following an earlier federal complaint that also charged Loughner with murder for the killings of U.S. District Judge John Roll and Giffords' aide Gabe Zimmerman.
The upcoming indictment is expected to restore those murder charges. Loughner also will likely face state charges in the attack.
Burns indicated he may unseal the records after a hearing on March 9, when he will consider a request by prosecutors to get handwriting samples from Loughner to compare with documents seized in a search of his home. Burns said the government has told him by then they expect to have all charges "crystalized."
"It will likely be a different story as of March 9," Burns said.
David Bodney, an attorney representing The Arizona Republic and Phoenix TV station KPNX, argued it is time to release the records and there's no basis for the documents to remain sealed. He said the public has a right to the records that have been under seal since Jan. 11, and that prosecutors have failed to show the material would harm their case.
"Logic tells me these are public records," he told the judge.
Bodney said the FBI has handed over all its material to U.S. prosecutors, indicating the crux of the investigation is over and would not be jeopardized.
U.S. Attorney Beverly Johnson told Burns that wasn't true. Burns agreed with her.
Defense attorneys said the documents contain potentially inflammatory statements by a law enforcement officer and that releasing the information could have a prejudicial effect on the prospective jury pool.
Burns was appointed to hear the case after all the federal judges in Arizona recused themselves because of their connection to Roll, who was the chief federal judge in Arizona.