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Insanity Defense Could Be A Tough Sell For Loughner

In this artist's sketch, Jared Loughner makes his first court appearance in Phoenix, Jan. 10.
Bill Robles
In this artist's sketch, Jared Loughner makes his first court appearance in Phoenix, Jan. 10.

Twelve days after the shooting rampage in Tucson, Ariz., Jared Loughner's legal battle has just begun.

A federal grand jury delivered its initial indictments against Loughner on Tuesday night: one count of attempted assassination of U.S. Rep. Gabrielle Giffords (D-AZ) and two of attempted murder of federal employees. Federal murder charges are expected soon, and additional state charges could come later.

Legal experts say Loughner's strongest argument, an insanity defense, could be a tough sell at the federal level and even tougher in a state court.

Things got a lot more difficult for defendants who wanted to plead insanity after John Hinckley shot President Ronald Reagan almost 30 years ago. The outcry was so great that Congress changed federal law.

"The defense now has to prove by clear and convincing evidence, which is an extremely high burden ... that the defendant did not understand the wrongfulness of his conduct," says Barry Boss, a partner at the Cozen O'Connor law firm. Boss is a former public defender for clients who say they are too mentally ill to be held responsible for their actions.

"That's a very difficult thing to establish because even in the most delusional people, there's often some evidence that they did things to avoid getting caught," Boss says.

Challenges To Insanity Defense

Boss added that prosecutors would also try to demonstrate that Loughner took lots of steps to carry out his alleged mission.

For instance, investigators say Loughner visited multiple stores to buy ammunition. He took the time to pose with his Glock handgun and have the photos developed. The FBI says he also left a note that reads, "I planned ahead." That kind of detail could help prosecutors convince a jury that Loughner wasn't legally insane.

Lisa Wayne, president-elect of the National Association of Criminal Defense Lawyers, says most juries are like parents: They don't like excuses, even when they're valid.

"Lay people out in the community really reject mental health defenses," Wayne said. "They don't like them. They don't buy them. And it's very, very difficult to overcome what we have kind of generated in the community about what mental health is really about."

Legal experts said it's even harder to win with an insanity defense in Arizona than in the federal system. That's because lawmakers there changed state law after the Hinckley attack and because the U.S. Supreme Court limited the kind of evidence that mentally ill defendants could present back in 2006, in an Arizona case.

Seeking The Death Penalty

Given all those challenges ahead for Loughner, his lawyer, Judy Clarke, might ultimately have just one main goal: to convince the Justice Department that he's too mentally ill to be a candidate for the federal death penalty. In the past, defense lawyers have presented evidence of delusional writings, brain scans and testimony from experts about their clients' mental state.

The process, which is in its earliest stages, eventually involves a review by a special committee, and Attorney General Eric Holder would make the ultimate decision.

"The bottom line is, even if you can't get to the point where you can succeed upon an insanity defense, you will create mitigating evidence to be used to argue against the death penalty," Boss said. "A realistic goal in a case like this from a defense perspective is to save Loughner's life."

Federal Prosecutors Moving First

Federal officials have the legal authority to prosecute crimes against the congresswoman, her staff members and federal judge John Roll, who was one of the six people killed in the rampage.

But that doesn't extend to the other people shot outside the Safeway, including 9-year-old victim Christina Taylor Green. Pima County prosecutors could bring their own criminal charges for those deaths under Arizona law. A county spokeswoman says they're still doing research and nothing's been decided — except that federal prosecutors are moving first.

That's no surprise to people who remember the Oklahoma City bombing. One of them is Aitan Goelman, who worked on that federal case in 1995.

"The [district attorney] in Oklahoma City said from the beginning that, you know, he planned to, whatever happened in the federal case, to prosecute the perpetrators in Oklahoma state court, because ... out of the 168 people murdered in that crime, there was only federal jurisdiction over the eight federal agents," Goelman said.

In the end, Oklahoma officials never tried Timothy McVeigh for planting that bomb. A federal jury had already sentenced him to death. But the state made a different decision about his accomplice, Terry Nichols.

Oklahoma spent the money to try Nichols, but the state wound up getting the same result the federal prosecutors did when they tried him: life in prison, not the death penalty.

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Carrie Johnson is a justice correspondent for the Washington Desk.