Lawyers for Oklahoma City bomber Timothy McVeigh spent months polling the public and analyzing news reports in search of a more favorable venue for his trial over the attack that killed 168 people, including 19 children.
Judy Clarke, the lead lawyer for Jared Lee Loughner, who’s accused of killing six people and wounding 13 in a Jan. 8 shooting spree in Tucson, Arizona, may face a similar task as she tries to craft a defense to keep her client from conviction and a possible death sentence.
Mass killings such as the 1995 Oklahoma City attack and the Tucson shootings, in which U.S. Representative Gabrielle Giffords was critically wounded, confront defense lawyers with a maze of challenges and choices.
Among them are whether to push for moving the case to a city where the victims have fewer ties and how to mount a defense that may include an assertion of mental illness.
“This is a hugely public event that a lot of people are devastated by,” said Richard Burr III, a Houston lawyer who represented McVeigh in his case, which was moved to Denver. McVeigh was convicted and sentenced to death. “The way our case was tried had a lot to do with the policies and politics of the U.S. and less to do with the frailty of Tim McVeigh.”
Lawyers for Loughner, 22, also must navigate the complexities of defending against federal charges while Arizona state prosecutors say they’re considering charges of their own, in the shootings of 14 people who weren’t federal employees.
More Charges Possible
Additionally, Loughner may face more federal charges as prosecutors seek an indictment by a grand jury.
“As a defense lawyer, you need to do what doctors are obliged to do -- and that is do no harm,” Burr said. “As a federal lawyer, you need to be concerned about open state cases, because findings of guilt in those can become aggravating factors in the penalty phase.”
Clarke already raised the issue of whether Loughner can get a fair trial in Arizona, telling a U.S. magistrate at an initial court appearance Jan. 10 that all federal prosecutors in the state should recuse themselves.
A federal judge in Tucson subsequently ordered fellow judges in the Tucson division of the Arizona district to avoid participation in the case. U.S. District Judge Larry Burns of San Diego yesterday was assigned to preside over the Loughner case.
The use of a judge from California may remove any appearance of impropriety that would flow from an Arizona judge’s presiding over a case where one of the victims was John Roll, the chief federal judge for the state.
Burns, nominated to the bench in 2003 by President George W. Bush, is a former deputy district attorney and assistant U.S. attorney in San Diego.
Burns in 2006 sentenced former U.S. Representative Randy “Duke” Cunningham to eight years and four months in prison after he admitted taking bribes from defense contractors. He also presided over the prosecution and sentencing of Javier Arellano-Felix, head of the Arellano-Felix drug cartel in Mexico.
“In high-profile cases, there are a lot of distractions, but he won’t allow that to impact the case,” said Edward Swan, a San Diego lawyer who worked with Burns at the U.S. Attorney’s Office. “He doesn’t show bias and gives both parties the opportunity to be heard.”
Jessica Smith, a Justice Department spokeswoman, declined to comment on behalf of the department and U.S. Attorney Dennis Burke in Phoenix.
Even if Clarke can exclude Arizona prosecutors or move the case to a different state, the fate of her client may turn on his mental state before and at the time of the crime, death penalty lawyers including Burr said.
Investigators found a 2007 letter from Giffords to Loughner in his home thanking him for attending a “Congress on your Corner” event at a mall in Tucson, according to court papers. Loughner wrote “die bitch” and “die cops” on the letter, Pima County police officials said.
They also found an envelope with handwriting saying “I planned ahead,” “My assassination” and “Giffords,” according to an FBI statement. Prosecutors may argue that such evidence shows premeditation, an aspect of a government case that may be used to counter a defense of mental defect.
The defense team will seek to learn where Loughner might fall under the law’s spectrum of mental illness, said Barry Boss, a former attorney for Russell Weston, who was accused of gunning down two U.S. Capitol police officers in 1998.
Weston’s mental condition -- he talked of a conspiracy involving cannibals and a time machine in the Capitol -- so far has prevented a trial, Boss said. To be considered competent to stand trial, a defendant must have a rational understanding of the proceedings, he said.
Clarke and Loughner’s other defense lawyers will probably explore whether, during the shooting, he was sane enough to understand that he was doing something wrong, said Boss.
A plea of not guilty by reason of insanity seldom succeeds, said David Bruck, a law professor at Washington and Lee University. Exceptions include John Hinckley Jr., who tried to assassinate President Ronald Reagan in 1981, and Andrea Yates, who a Houston jury in 2006 found was insane when she drowned her five children. Both were committed to mental hospitals.
“It almost never happens, yet the public thinks it’s commonplace,” said Bruck, who helped Susan Smith avoid the death penalty in 1995 for killing her two toddlers in South Carolina. Clarke worked with Bruck on the Smith case.
Clarke didn’t return calls seeking comment.
Federal Death Penalty
Aitan Goelman, a Washington lawyer who prosecuted McVeigh, said some of Loughner’s alleged actions before the shooting, such as leaving a goodbye message on his MySpace page, might be used as evidence he was aware of the consequences of his actions.
“Even if you’re a lunatic, in order to get a verdict of not guilty by reason of insanity, you need to be completely removed from reality,” Goelman, a partner at Zuckerman Spaeder, said in an interview.
With regard to the death penalty, Clarke will get a chance to meet with federal prosecutors and try to dissuade them from seeking her client’s execution, said Karen Hewitt, a former U.S. attorney for San Diego.
Even if the other mental health defenses fail during a federal trial, Clarke would need to persuade just one juror in the penalty phase, during which a jury chooses between prison or execution at the federal death chamber in Terra Haute, Indiana. McVeigh was put to death there in 2001.
In the penalty phase, Clarke may present mental instability as a mitigating factor and a reason to vote against death, Boss said.
The case is U.S. v. Loughner, 2:11-mj-00035, U.S. District Court, District of Arizona (Phoenix).
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