Prosecutors and defense lawyers don't intend to question each other's mental-health experts—a sign the alleged shooter may be deemed incompetent to stand trial
Update: Wednesday, 3:46p EDT As predicted, Loughner indeed was found incompetent to stand trial Wednesday afternoon after expert medical witnesses for both sides in the case agreed about the extent of his current mental illness (which ought to tell you the depth of it). The New York Times reports that Loughner had to be dragged from the courtroom, screaming "Thank you for the freak show. She did in front of me. You are treasonous." He will be evaluated again in mid-September, as required by the federal statute noted below, and don't be surprised if between now and then we hear about a legal dispute over whether he is a candidate for the involuntarily use of anti-psychotic meds (see below).
It looks more likely than ever now that the Tucson shooting suspect -- Jared Lee Loughner -- will be declared incompetent to stand trial on federal charges for his role in the January 8th shooting that left six dead, including a noted federal judge, and 14 wounded, including Rep. Gabrielle Giffords (D-Ariz.). Such a ruling would delay, indefinitely, Loughner's pending federal trial and would preclude for the time being any state trial as well.
At least that's what conventional wisdom suggests going into Wednesday's competency hearing before U.S. District Judge Larry A. Burns, the San Diego-based jurist who is presiding over United States v. Jared Lee Loughner. The psychiatric expert hired by prosecutors and the one hired by defense attorneys both have submitted their evaluations of the defendant. Yet neither side intends to question the conclusions of its opposing expert. Kumbaya!
This suggests that the experts agree upon Loughner's current mental state, and, if they do, it's much more likely they agree he is incompetent rather than competent. I mean, if the government's expert thought Loughner was competent to stand trial, the defense would not be nearly so passive in accepting the judgment. And if the defense expert thought Loughner was competent to stand trial, well ... that's not really how the expert-witness game works, is it?
How the competency game works in federal court is fairly clear. In 1960, in Dusky v. United States, the United States Supreme Court gave us the legal standard for determining which defendants are mentally suited for trial. The Court said they must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him."
This concept has since been codified into federal law. Section 4241(a) of the criminal code states:
At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant... the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, 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.
If and when Judge Burns decides to detour Loughner's criminal trial -- for months, for years, who knows? -- it will likely generate a great deal of anger and frustration among the good burghers of Arizona and elsewhere who will feel the suspect got away with something by not facing a quick trial. But it's not like Loughner will be spending his time at a rehab clinic. He'll be incarcerated and subject to regular mental-health evaluations to determine his status.
Oh, and he'll also probably be forced to take anti-psychotic medication to help him regain his competency. It's true. In 2003, the Supreme Court, in Sell v. United States, declared that:
[T]he Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.
Justice Stephen Breyer, who authored the Sell decision, tried also to explain and limit its enormous consequences. He wrote:
Courts, however, must consider the facts of the individual case in evaluating the Government's interest in prosecution. Special circumstances may lessen the importance of that interest. The defendant's failure to take drugs voluntarily, for example, may mean lengthy confinement in an institution for the mentally ill-and that would diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime. We do not mean to suggest that civil commitment is a substitute for a criminal trial. The Government has a substantial interest in timely prosecution. And it may be difficult or impossible to try a defendant who regains competence after years of commitment during which memories may fade and evidence may be lost. The potential for future confinement affects, but does not totally undermine, the strength of the need for prosecution.
I may be completely wrong, but this looks to be where the Loughner case is headed next -- toward a great deal of sustained legal limbo while the lawyers and the doctors and the judges try to figure out the extent of the limbo going on inside the defendant's now infamous head.