Everyone gets his day in court, but the key day for Arizonashooting suspect Jared Lee Loughner could be if a jury decideswhether he should be spared the death penalty because of his mentalstate, defense lawyers and former prosecutors said Wednesday.
Loughner, accused of killing six people and wounding 13,including a congresswoman who remains hospitalized, is innocentuntil proven guilty, and the federal charges against him are barelyfour days old. His defense team will surely fight for acquittal.
But lawyers with expertise in high-profile cases said the factsarrayed against the suspect in Saturday's shooting in Tucson - therewere up to 150 witnesses, several of whom held the shooter downuntil police arrived - may prove overwhelming. Loughner's lawyers,they said, will focus on using his troubled mental state to keep himoff death row.
"Guilt is not the issue here. Everyone saw him do it; he wasstopped there. There's just no question,'' said Jonathan Shapiro, aFairfax County lawyer who defended Washington area sniper John AllenMuhammad. "The issue is his mental state, and the sole goal is toavoid the death penalty.''
Loughner is charged with murder and attempted murder in theshootings outside a supermarket that killed a 9-year-old girl, afederal judge and four others, and wounded Rep. Gabrielle Giffords(D-Ariz.). Several counts could carry the death penalty. His lawyer,San Diego attorney Judy Clarke, is known for trying to keepdefendants in other high-profile cases from being executed.
A tireless campaigner against capital punishment, Clarkeconvinced a South Carolina jury in the 1990s that Susan Smith didnot deserve to die for drowning her two sons. She also representedUnabomber Theodore Kaczynski, who is serving a life term in prison.
"She's great for Loughner,'' said Alan Yamamoto, an Alexandrialawyer who worked with Clarke on the defense of Zacarias Moussaoui,the conspirator in the Sept. 11, 2001, attacks whose mental healthplayed a central role in his case. "She's an expert in the deathpenalty phase of a case and looking into someone's background.She'll delve into everything.''
Clarke did not return telephone calls seeking comment Wednesday.Lawyers said one of her first moves will likely be to seek a changeof venue for the trial, arguing that an Arizona jury cannot beobjective given the trauma of the events.
"The case may very well be moved out of Arizona,'' said JosephdiGenova, a Washington lawyer and former U.S. attorney in theDistrict. But he added that a new venue may not help the defensebecause the "saturation of information" from the Internet and othernews sources means potential jurors anywhere will be familiar withthe shootings.
Clarke's biggest focus, said lawyers who know her, will be toexplore an insanity defense and, if Loughner is convicted, to gatherevidence about his mental state to use during a possible deathpenalty phase of the trial. She will also search for other"mitigating'' factors, such as childhood abuse, that could persuadea jury to spare his life, lawyers said.
Authorities and people who know Loughner say his erratic behaviorincluded outbursts at a local YMCA and disruptions in classrooms andlibraries at Pima Community College.
"Judy is going to be gathering every bit of evidence she canabout the guy's behavior, anything that makes him look crazy,'' saidShapiro, who is a friend of Clarke's. "Everything about this youngman's past needs to be investigated, all his bizarre behavior.''
Insanity defenses at trial, which lawyers said are alwaysdifficult to mount, have grown even more so since John W. HinckleyJr. was found not guilty by reason of insanity in the 1981 shootingof President Ronald Reagan. DiGenova, who oversaw that prosecution,said the verdict led to legal changes that give defense lawyers ahigher burden to prove insanity than in the Hinckley case.
In death penalty cases, the Supreme Court has long held that theinsane may not be executed. In 2007, the court ruled, 5 to 4, that amentally ill convicted murderer, whose delusions prevented him fromhaving a "rational understanding" of his sentence, could not be putto death.
It is not known whether Loughner, who is likely to be evaluatedby both defense and government psychiatrists, will be found to bementally ill. Prosecutors will probably counter any insanity defense- and argue for his execution - by laying out evidence they will sayshows that he meticulously planned the shootings.
"They want to show that whatever his problems may have been, thatdid not preclude him from planning this in advance," diGenova said."Planning connotates thought and analysis. Those traits aretheoretically inconsistent with insanity, though not necessarily.''
markonj@washpost.com
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