Jared Loughner: Reports of a Guilty Plea and Life Sentence

Jared Loughner is expected to plead guilty Tuesday to charges resulting from his 2011 Tuscon shooting spree, in which former Congresswoman Gabrielle Giffords and others were injured, and federal Judge John Roll and and others were killed. (Charges detailed here, the Superseding Indictment is here.) The unofficial reports, which have not been confirmed by the prosecution, defense or court, but are now being confirmed by every major media outlet (New York Times here), state that Loughner will plead guilty in exchange for a life sentence. I would expect the agreement to be a global one, that includes a representation that the state of Arizona will either not prosecute Loughner in state court, or at least, that it won't seek the death penalty.

Whether Loughner will make it through a guilty plea advisement remains to be seen. If the deal goes through, and I doubt his defense lawyers would sign on if they didn't think he could make it through the hearing, this will be another huge accomplishment for defense lawyer Judy Clarke, already a true master at how to save a life. More...]

A status hearing on Loughner's competency is set for August 7, having been continued from June. In prior reports, the experts said they believed Loughner was incompetent, but that with continued forced psychotropic medication, he could become competent, possibly within 8 months.

The status hearing was rescheduled from June to August 7, because both parties stated "more time was needed." The commitment period (each one lasts 120 days and they can be renewed)ended June 7. The findings apparently are now in, since last week, pleadings were filed over disclosure of the BOP psychologist's notes from this last commitment period ending June 7. The defense expressed its concern that the Government might use the notes in deciding whether to seek the death penalty. (The Court ordered disclosure.) This suggests to me the court-appointed expert has found the forced medication has been successful at restoring Loughner to competency to stand trial.

Once declared competent, the Government would be in a position to file a notice of intent to seek the death penalty. Even though some victims did not want the death penalty, the final decision is up to the Justice Department. Thus, the time is now ripe for serious plea negotiations.

There has been a lot of litigation over Jared Loughner's forced medication. The 9th Circuit has put the appeals pleadings and orders online here. In March, the 9th Circuit denied several appeals in a single 117 page opinion. The first few pages of the opinion explain the factual history of the competency and forced medication issues.

In April, the defense filed this Petition for Rehearing, which I think does a better job of explaining the extent of the forced medication and the legal issues surrounding it, which are made more complex when there are multiple purposes for the forced medication, such as restoration to competency vs. preventing dangerousness to others or self, and different standards for pre-trial detainees vs. convicted defendants:

Most notably, the prison has now increased the dosage of risperidone to 9 mg per day, an amount that substantially increases the likelihood of inducing significant physiological side effects, and a dose which exceeds the normal adult dosage range. This fact is particularly important because it shows that these increases in risperidone are meant to inch Mr. Loughner closer to trial competency, not to alleviate his suicidal depression or otherwise palliate suffering.

In June, the 9th Circuit denied the defense's petition for rehearing on the appeals cases. From the accounts in the 9th Circuit opinion, including the dissent, and the Petition for Rehearing, it seems Loughner has been turned from a crazed schizophrenic dangerous to others, to a catatonic shell of himself, still suffering from major depression. (His condition improved slightly with medication, then drastically deteriorated when the defense got an order against it, resulting in the reinstatement of forced medication, at even higher levels.)

With no end in sight to the forcible medication of Loughner, due to BOP deeming it necessary to prevent him from being a danger to others and himself, and revised expert opinion that he is now competent, the likelihood of his prevailing at a trial on an insanity defense is diminished. Coupled with the anticipated filing of a notice of intent to seek the death penalty, Loughner's life, not just his freedom, is on the line.

In dissenting from the appeals court majority opinion, Judge Berzon explains the tension between forced medication for restoration to competency and to prevent dangerousness, as it pertains to due process and other rights of a defendant:

[T]he side-effects associated with psychotropic medication may severely prejudice a defendant’s right to receive a fair trial. Here, for example, Dr. Pietz testified that Loughner has developed a flat, emotionless aspect since resuming psychotropic medication. The district court further observed that Loughner “did appear to be tired” at the commitment proceeding and “did appear to close his eyes from time to time today and maybe a little sleepy or nod off.” This “sedation-like effect” may result in “serious prejudice” during trial proceedings “if medication inhibits [Loughner’s] capacity to react andenia (which is being treated with risperidone)respond to the proceedings and to demonstrate remorse or compassion.” Riggins, 504 U.S. at 143-44 (Kennedy, J., concurring in the judgment).

“The tendency of psychotropic medication to flatten or deaden emotional responses” could prove particularly damaging if the government seeks the death penalty, as it very well might in this case, because “the jury would then be especially sensitive to Loughner’s] character and any demonstrations of remorse (or lack thereof).” Weston, 206 F.3d at 20 (Tatel, J., concurring).

Even the intended effects of psychotropic drugs may infringe Loughner’s fair trial rights. Assuming Loughner will put on an insanity defense, manifestations in court of how his mind works may well be his own best evidence. Because psychotropic medication chemically alters the brain, it “deprives the jury of the opportunity to observe the defendant in the delusional state he was in at the time of the crime.” Id. at 21 (Tatel, J., concurring). The government’s decision to restore Loughner’s trial competency may therefore prevent him from putting on his chosen defense, by altering the material evidence for that defense See Riggins, 504 U.S. at 139, 142 (Kennedy, J., concurring in the judgment). Thus, both the intended and unintended effects of psychotropic medication can conceivably deprive a criminal defendant of his right to a fair trial.

There is no point in restoring a defendant’s trial competency, through commitment to a medical facility and involuntary administration of psychotropic medication, if the means necessary to effect restoration will so infringe the defendant’s fair trial rights as to render the trial itself unconstitutional.

In Judge Berzon's view:

Pretrial commitment for restoration of competency will likely not “permit the [trial] proceedings to go forward” if Loughner can only be restored through means likely to render any resulting trial unfair. So the district court may only commit Loughner for restoration of trial competency if it concludes that the psychotropic means through which his restoration is to be accomplished are substantially unlikely to infringe his fair trial rights.

He disagreed with the Bybee's opinion for the majority which held the court need not inquire into the effect of involuntary medication on the right to a fair trial:

[T]he majority holds that the district court was not required to determine prospectively whether the pharmacological means used to effect Loughner’s restoration will infringe his right to a fair trial.

Judge Berzon concludes:

In short, I would hold that a district court asked to commit a pretrial detainee for the purpose of restoring his trial competency through involuntary medication must itself determine whether involuntary medication is justified. In doing so, it should first consider, as in Sell, whether the medication is justified on grounds of dangerousness to self or others. If the court concludes that involuntary medication is justified, it may then proceed to determine whether involuntary medication is likely to restore the detainee’s capacity to such a point that trial may proceed. But I would require the court to determine, as part of that inquiry, whether the contemplated treatment is substantially unlikely to infringe the detainee’s fair trial rights.

I cannot agree with the majority’s conclusion that the district court could authorize Loughner’s commitment under § 4241(d)(2)(A) on the bare determination that the medication he is currently receiving is likely to restore his purely cognitive trial competency, meaning the ability to appreciate the course of the proceedings and confer with counsel, with no consideration of either the medication’s propriety or its potential effect on his fair trial rights.

But Judge Berzon's view did not prevail. What I take from all this in plain English is that the 9th Circuit has significantly reduced the possibility of a successful insanity defense because the jury is unlikely to perceive a semi-catatonic Loughner as insane. If he's found guilty, rather than not guilty by reason of insanity, he could be executed. Thus, it's time to plead guilty and ensure he is not executed.

(Note: It's not for certain the federal government would file for the death penalty as some victims apparently don't want it, but they could, and it would still be an option for Arizona prosecutors in a subsequent state prosecution.)

Will the judge accept the finding of competency and agree his guilty plea is "knowing and voluntary" with a full understanding of the charges and possible penalties, and the legal rights he is relinquishing by pleading guilty? My guess is yes, since defense attorneys confirm to the court at the guilty plea hearing that they have fully advised their client and that the client understands. Here's an example from an Arizona federal plea agreement in June, 2012.

In Feburary, 2011, the New York Times wrote this profile of Judy Clarke in the context of her representation of Jared Loughner.

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  • Display: Sort:
    So let's see, Laughner was deemed (5.00 / 2) (#1)
    by fishcamp on Sun Aug 05, 2012 at 09:09:58 PM EST
    incompetent to stand trial so they forced him to take strong psychotropic drugs to inch him towards sanity and the ability to stand trial.  The side effects of these drugs render him incapable of appearing either sane or insane so he could be executed if the jury thinks he's sane.  Isn't there something wrong here?

    Yes, very sad situation (none / 0) (#2)
    by ZtoA on Sun Aug 05, 2012 at 10:11:53 PM EST
    Has it ever been otherwise? Got a better idea? (not just a rhetorical question because I don't have a better idea so I'm very open to better, or any, ideas) IMO there is NO good way to proceed in this horrible tragedy - for all involved. Everyone here, now, is playing the rules in order to keep this man off the streets and not executed. How horrible for all involved.

    The global resolution (none / 0) (#3)
    by bmaz on Sun Aug 05, 2012 at 10:12:05 PM EST
    is the issue that I am interested in. I agree it makes sense, really for all the parties.  But I can tell you this much, the word I hear from Pima County Attorney's Office is that they are still ticked off at the way DOJ bigfooted all over them, and how they did it, in immediately seizing the case and defendant early on. And Barb LaWall is no pushover. We shall see I guess. I would pretty much bet against it, but it would save them a LOT of time an money, and for the state too as far as the death penalty appeal process.  So that may tip the scale.

    And honestly (none / 0) (#4)
    by nyjets on Sun Aug 05, 2012 at 10:40:45 PM EST
    AS long as he stays off the street until he is dead, this is probably the best situation.

    Your dismissal (none / 0) (#6)
    by Peter G on Sun Aug 05, 2012 at 11:24:49 PM EST
    of Judy Clarke's professional judgments as "lame" or not equal to those of a "good defense attorney" is ignorant in the extreme.  There is no one better in this country for the most difficult and challenging cases.

    Peter G is quite right (none / 0) (#7)
    by bmaz on Mon Aug 06, 2012 at 12:31:53 AM EST
    There have been numerous experts involved in this case, including those appointed by the court.  Secondly, a defendant cannot waive a jury trial without the consent of the DOJ and grant of the request by the court pursuant to Rule 23 FRCrP. You are just very far off base here.  You also seem to not be familiar with the insanity standards and procedure as it currently exists in federal court.

    I would have hoped Judy Clarke played this out longer, but this was the best deal she would ever get, and if it was put on the table, no reason no to get while the getting is good.


    that comment was deleted (none / 0) (#8)
    by Jeralyn on Mon Aug 06, 2012 at 12:32:15 AM EST
    it was incredibly ill-informed on a number of levels.

    Easy Solution... (none / 0) (#9)
    by ScottW714 on Mon Aug 06, 2012 at 10:42:25 AM EST
    ...get ride of the death penalty, or at the very least, make it condition of forced medication.  The conflict here is to big not to.

    I hate that all the effort is focused on this one issue, keeping him alive.  When they should be focused on how to treat people who commit atrocities that are clearly insane.  Or rather what to do with them until they die.

    Whatever is inside of him made him kill people, whether that state of mind wants to face reality or not, it is our responsibility to get him as close to reality as we can so he, even for a brief moment, understands why he is a cage for the rest of his life.  And then he should decide if he wants reality, or back to crazy.  After that point, we should only medicate him by force to the point where his is not a danger to himself or anyone else.

    He will never be released, so the only real question here is where we put him, prison or mental institution.  Seems like we should save the very limited space in the mental wards for people that might actually have a chance at living outside.  Until we start funding mental illness properly, the dangerously unstable will be kept in prisons.  And judging the two candidates, that funding with continue to diminish.  And more and more people who are not anywhere close to reality will be locked in cages until they die and that ain't right.

    Some comments & questions: (none / 0) (#10)
    by NYShooter on Mon Aug 06, 2012 at 01:30:34 PM EST
    Since money is the determinant factor in the outcome of many/most trials I've always felt that a "fair trial" is an oxymoron unless both sides are financially represented equally.

    Having said that, it seems the more notorious, or outrageously violent the crime is even destitute suspects/defendants seem to get a disproportionate number of expert attorneys, investigators, and professional witnesses.

    How does that work? Are these people volunteering their services pro-bono? Does the judge allocate additional funds based on the requirements of the defense? Or is each case simply an ad hoc gamble as to how the defense team is formed?