Don't Hold Your Breath Waiting for a Loughner Trial


"How could he plead 'not guilty' when they tackled him with a gun in his hand after shooting a judge?" said a Twitter message, Wednesday afternoon, in reaction to news that Tucson shooting suspect Jared Lee Loughner had pleaded "not guilty" to federal murder and attempted murder charges.

Yes, it's true. So far, at least, Loughner, 22, is not ready to legally (or publicly) admit what 99.99 percent of us reckon to be true. And he may never be. Apprehended at the scene of the crime, with his alleged deeds recorded on security videotape, and with living witnesses, including the universally beloved Rep. Giffords, ready to testify against him, Loughner's federal case is really just about two questions. Was he legally insane at the time of the crimes? And is he legally competent now to stand trial for them?

He was smiling when he entered court said the news reports from Tucson Wednesday during Loughner's arraignment. He was smirking throughout the hearing. That's all that many people will remember, if they remember anything, about he details of Wednesday's hearing. But there were far more important things that occurred inside U.S. District Judge Larry Burns "away" courtroom (Judge Burns, like Loughner's lead defense counsel Judith Clarke, lives and works in San Diego, which is where this trial may end up).

For example, the judge ordered unsealed certain search warrant information which will offer the public a better sense of Loughner's world leading up to Jan 8th. Evidently that information already has convinced prosecutors (and Judge Burns and defense attorneys) that there are serious questions now about whether Loughner is competent to stand trial. Under federal law, the issue of competency arises:

"... if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense."

Applying that standard, and rejecting a defense request for a 60-day delay, Judge Burns on Wednesday ordered a quick competency evaluation for Loughner. He wants to know sooner rather than later whether he'll have a high-profile case to try. Prosecutors, meanwhile, want to know sooner rather than later whether they have a defendant whose mental state now precludes him from being subject to potential capital punishment should he be convicted or plead guilty. Defense attorneys had asked for the extra time so that they could better get to know their client -- and thus be better able to evaluate his mental state.

Judge Burns said Wednesday afternoon that he has a reasonable belief that Loughner may now be incompetent. If the judge still believes that at the end of the competency hearing, after all the mental health experts have weighed in, the case, United States v. Loughner will effectively be put on hold, indefinitely. That means it may be a few years, or longer, before we ever get a chance to answer the second open question: what was Loughner's state of mind on Jan. 8th? It also means we may never know (as far as we ever could know) exactly what he was thinking when he walked toward that Safeway supermarket. Paradoxically, a criminal defendant must be competent to raise the defense of legal insanity.

Before Wednesday's arraignment, Judge Burns had suggested that Loughner could be tried this September. Forget about that. It's not going to happen. Even if Loughner is deemed competent to stand trial, that determination won't come for several months. And it will likely have to come before the Justice Department reaches its conclusions about whether it wants to turn this case into a capital one. That choice, in turn, will impact the defense team's decision to seek a venue change out of Tucson (or out of Arizona altogether). These pieces to the puzzle are all interconnected.

So while we wait for an answer on the competency question, and while we contemplate the possibility that we may never learn why Loughner allegedly did what he did, let's throw a few more questions out there for discussion and debate. If Judge Burns deems Loughner incompetent to stand trial under federal rules, will Pima County prosecutors nonetheless seek to pursue a state criminal case against the suspect? Could they do so without violating Loughner's constitutional rights? And, if not, is everyone out there prepared for the possibility that the latest trial of the century may never actually begin?

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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