Loughner Arraigned, Judge Releases Search Warrant Documents

Jared Loughner, accused of murder, attempted murder and other crimes in the Arizona shooting case of Congresswomen Gabrielle Giffords, Chief Judge John Roll and others, pleaded not guilty in federal court today.

Over the objections of both the prosecution and defense, the Judge granted media requests for release of the search warrant documents in the case, with a few redactions. He said that because the investigation phase of the case was now over, the public had a right to see them. The defense, correctly in my view, argued among other things that the release of the documents could prejudice Loughner's right to an impartial jury. It asked that the documents not be released, at the earliest, before motions addressing the legality of the searches are determined. [More..]

The Judge deferred ruling on the Government's request for handwriting exemplars. The defense asked that the Government provide the documents it seeks to attribute to Loughner so it could stipulate to their admission, which would obviate the need for the exemplars. The Government argued, unpersuasively in my view, that it does not have to accept such a stipulation, and that even if stipulated to, it has the right to it has the right to present conduct the exemplars. The defense also objected to exemplars by dictation, where the examiner tells Loughner what to write, because that would render the exemplar testimonial, and violate his 5th Amendment privilege against self-incrimination. For example, if there was a handwritten document that misspelled the word "receipt" as "receit" and the examiner told Loughner to write the word, and Loughner similarly mispelled the word, it would be a communicatation of his thought processes. The Government, in a reply brief, said it won't use dictation. The Judge said he wasn't ready to rule on this yet.

The Government also asked for a psychiatric exam on Loughner, to be conducted at an unspecified federal medical facility, to determine his competency. The defense argued the motion was premature and could jeopardize its ability to communicate with him. The Judge set a hearing for May 25 on competency and said each side could have its own experts evaluate him. Without seeing the written order, I can't tell if he granted the Government's request to have Loughner moved. Usually, the exams take a few months, and if they can move Loughner to a medical facility within the Bureau of Prisons of their choosing, it seems to me that would severely impact his ability to meet with counsel, particularly during this early stage when his counsel are trying to establish a rapport with him and earn his trust.

Finally, an attorney for the family of Chief Judge John Roll filed a notice of entry of appearance in the case. He says he did so to protect their interests. Crime victims (and their family memebers) are not parties to a criminal case. They have rights under the Crime Victims Restitution Act to be heard. But I don't think they can just enter a general appearance. If there was a specific matter at issue, they could file a motion to intervene. But they can't make themselves parties to the case and enter their appearance. From a public relations standpoint, it might not make sense for the defense to move to strike the appearance, but I think it makes perfect legal sense.

In one recent case, the Third Circuit rejected a crime victim's attorney's entry of appearance. The Ninth Circuit, in United States v. Gamma Tech Indus., 265 F.3d 917, 923 n.6 (9th Cir.2001) said "Victims have never had standing to appear as parties in criminal cases."

Victims have never had standing to appear as parties in criminal cases. See Linda R.S. v. Richard D., 410 U.S. 614, 619, 35 L. Ed. 2d 536, 93 S. Ct. 1146 (1973) ("The Court's prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.").

Specificically, a crime victim has the following rights under the CVRA (18 U.S.C. § 3771(a).)

(1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.

(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.

(5) The reasonable right to confer with the attorney for the Government in the case.

(6) The right to full and timely restitution as provided in law.

(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for the victim's dignity and privacy.

As to enforcement:

Enforcement under the CVRA is provided through a motion for relief in the district court, which must decide "any motion asserting a victim's right forthwith." If the relief sought is denied, the movant may petition the court of appeals for a writ of mandamus, which must decide the petition not only "forthwith," but within 72 hours after it has been filed. § 3771(d)(3).

The attorney for the Roll family has not filed any motions, just a Notice of Entry. He does not provide any authority for his entry, only states that it is pursuant to the rules of federal criminal procedure. Which one?

I could see if it was sentencing time, and the Roll family wanted to be heard and the Government refused to allow them an opportunity to speak, that they might retain counsel to move to intervene for the purpose of being heard at sentencing. Then it would be up to the judge. But to just file an entry in the case as if they are a party? I don't see that as permissible.

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    Standing (none / 0) (#1)
    by getoffamycloud10 on Wed Mar 09, 2011 at 08:40:17 PM EST
    Tell me, in any criminal action against Loughner filed in any court of competent jurisdiction, how could anyone but "The People" under the name of The Government of the US, The State of AZ, The County of Pima or the City of Tucson possibly have standing?

    Seriously, at every level of the justice system, are we just spit-balling, making this up as we go along in an ad hoc approach 'til further notice?

    Tipping the Scales (none / 0) (#2)
    by ScottW714 on Thu Mar 10, 2011 at 09:07:26 AM EST
    The defense, correctly in my view, argued among other things that the release of the documents could prejudice Loughner's right to an impartial jury.

    An impartial jury in any high profile case is impossible; like freedom and rule of law, all good sound bites, but not reality.  No one cares if this kid gets a fair trial, it's a show to make us sleep better, but no different than taking him out back and for a good ole fashion hanging.  Just more expensive.

    My point is the search warrants aren't going to tip the non-existent scales in this case.  Nothing, and I mean nothing is going to keep this kid from ever being free.  I wish they would just quit wasting the funds and time with the show, and do the inevitable.

    I am not arguing he doesn't deserve a fair trial, he does, but since that isn't going to happen, they should do what they want and skip all the formalities.

    Sure. And while we're at it... (none / 0) (#3)
    by getoffamycloud10 on Thu Mar 10, 2011 at 07:55:02 PM EST
    Sure. And while we're at it, let's just save ourselves the expense of the electoral process and have Herr Rove pick the results.

    Ya still gotta get up in the morning and make an honest effort as best ya can.


    Another fighting Dem (none / 0) (#4)
    by Rojas on Fri Mar 11, 2011 at 02:28:54 AM EST
    I understand now how you could come to the conclusion that Clinton was a gem.