photo: Towboat Garage via Flickr

I believe there is a possibility that Jared Loughner’s case might be resolved by a plea. Here’s why.

Every capital defense team should have at least one regular investigator to work the case and at least one mitigation investigator to gather mitigation evidence.

Mitigation evidence is any evidence that in fairness or in mercy tends to mitigate or reduce the seriousness of the offense charged. Evidence of mental illness is mitigation evidence, for example.

I’m certain that Jared’s defense team will include a mitigation team made up of an attorney and the mitigation investigator(s) whose primary responsibility will be to prepare for a possible penalty phase. In addition to establishing the absolutely critical relationship of trust with Jared, which the defense team likely is still focused on, the mitigation investigator will be collecting all of Jared’s academic, mental health, and medical records, including his mother’s pregnancy and his birth records. The mitigation investigator also will attempt to locate and interview all of Jared’s teachers dating back to kindergarten, or day care, babysitters, family members, friends, and employers searching for any evidence that might be helpful in determining why and when he went off the rails.

The mitigation investigator’s goal is to find every record and anecdotal story about him in existence, assemble, catalogue, cross-reference, and exhaustively analyze them for any sign of impaired mental functioning or disability ranging from fetal alcohol syndrome to signs of a possible brain injury sustained as a child, or young adult. From the little evidence reported in the news, Jared appears to have been manifesting delusional and confused thinking involving suspected enemies, which is a symptom of paranoid schizophrenia, a disease that no one chooses to have. If I were a member of the defense team, I would certainly want to determine whether Jared is afflicted by paranoid schizophrenia, and if so, whether and to what extent it may have affected his perception and processing of information and events in his environment and what role, if any that might have played in the decisions he made leading up to the events that occurred on or about January 8, 2011.  . . . Read the rest of this entry →

Justice by Luca Giordano (source: Wikipedia)

Reuters reported Wednesday evening that a federal grand jury indicted Jared Loughner for three counts of Attempted Murder.

Today’s charges are just the beginning of our legal action. We are working diligently to ensure that our investigation is thorough and that justice is done for the victims and their families,” U.S. Attorney Dennis K. Burke said in a statement released in Washington.

This likely means that the Preliminary Hearing that is scheduled for January 24 will be stricken, as there no longer is a need for a Magistrate Judge to hold a hearing to determine if the evidence admitted at the hearing sets forth probable cause to believe that Mr. Loughner committed the offenses charged. The grand jury’s indictment satisfies that requirement as to the three attempted murder charges in the complaint.

I predict the Government will dismiss the complaint, which includes the two murder charges, and continue to seek Mr. Loughner’s detention without bail on the three attempted murder charges in the indictment.

These events do not preclude the Government from seeking to supersede the indictment by adding the two murder charges that are in the complaint. As Bmaz pointed out with respect to Judge John Roll, the Government’s basis for jurisdiction is rather thin (i.e., that he was engaged in the performance of his official duties when he was shot and killed), and the Government may have decided to hold off on that charge for the time being.

The death penalty is not an option at this time unless the Government obtains a superseding indictment adding one or both of the murder charges in the complaint.  . . . Read the rest of this entry →

Electric Chair by Andy Warhol (photo: gliuoo at LACMA via Flickr)

Sometime in the year 2000, I attended an emergency meeting of the Death Penalty Committee of the Washington Association of Criminal Defense Lawyers. The issue we addressed at that contentious meeting concerned an ethical problem facing one of our members, who also was a good friend. He had been appointed to represent James Elledge, who was accused of capital murder.

We were informed at the meeting that Mr. Elledge had confessed to police that he invited a woman named Eloise Fitzner and her friend to meet him at a church where he worked as a custodian. When they arrived, he gave them a tour, eventually directing them to the Bible-Study Room, where he pulled a knife and bound them with rope. When Ms. Fitzner struggled, Mr. Elledge strangled her into unconsciousness and stabbed her in the neck. After killing her, he took the other woman to a mobile home and assaulted her sexually. He released her the next day and she immediately went to police. Mr. Elledge voluntarily confessed to police that he killed Ms. Fitzner because she had interfered with a relationship he had a year earlier. Mr. Elledge told his lawyer that he wanted to plead guilty and be sentenced to death.

The ethical question we debated that day was whether a lawyer violates his duty to represent his client ethically and zealously to the best of his ability within the boundaries set by the Rule of Law, if he accedes to a client’s desire to commit suicide by volunteering for the death penalty and waiving all of his constitutional rights to trial and appeal. Many of us argued that no lawyer should ever assist his client to commit suicide, regardless of the situation, because a death penalty client’s naturally depressed, terrified, and occasionally suicidal emotional state when facing the possibility of being sentenced to death precludes the client from rationally deciding to surrender to what may seem inevitable at the time and opt for death by execution. Mental illness can aggravate the problem. We were aware of many cases where clients made that fateful decision and later changed their minds to no avail. Guilty pleas are virtually impossible to overturn and they went to their deaths regretting their decisions.  . . . Read the rest of this entry →

Electric Chair by Andy Warhol (photo: fibonetti via Flickr)

The issue in Jared Loughner’s case is not whether he is convicted or acquitted. The issue is whether he lives or dies. They have him on videotape committing the murders, he was restrained at the scene by a shooting victim and several onlookers, and they have his handwriting on an envelope recovered from his residence in which he admitted that he planned it, together with a form letter from Congresswoman Giffords addressed to him and dated August 30, 2007, thanking him for attending a meet and greet that had occurred five days earlier. They also have at least one close friend, Bryce Tierney, who told Nick Baumann, a reporter for Mother Jones magazine, that Loughner disliked Congresswoman Giffords because he didn’t like her answer to a question that he asked at that meet and greet. The question he asked was, “What is government if words have no meaning?”

Our best death penalty lawyers are part lawyer and part priest. They aren’t in it for the money because prosecutors rarely, if ever seek the death penalty against a rich person, and only the filthy rich have enough money to pay for a defense in a capital case. Death penalty lawyers are public defenders compensated with their regular monthly paycheck, or private counsel who are court appointed and compensated at rates that usually fail to cover their monthly overhead. Court appointed counsel in federal death-penalty cases are compensated at an hourly rate up to a maximum of $178/hour. Because they are so demanding of counsel’s time and energy, it’s extremely difficult to handle other cases when representing a client in a capital case. I used to clear the decks when I agreed to take one on and I always lost money when I did.

Why did I do it? I did it because it’s the right thing to do. We aren’t smart enough or wise enough to play God.  . . . Read the rest of this entry →

Because Representative Giffords and Judge John Roll are federal people, federal crimes were committed and the FBI has jurisdiction to enter the case. I’ve done a lot of federal criminal defense work, so this is what’s going to happen.

The U.S. Attorney’s Office will file a complaint in the United States District Court for the District of Arizona charging Loughner with at least one felony offense. The Complaint will have an affidavit attached to it, probably drafted by a U.S. Attorney, setting forth facts that the investigation has turned up. Do not expect that the affidavit will contain all of the facts that are known. The Government has to assert sufficient facts to convince a United States Magistrate Judge that there is probable to believe that the defendant committed the crime(s) charged in the Complaint. The affidavit will be drafted with that in mind.

The main location for the district court is in Phoenix, but there is a branch in Tucson. There is an issue in this case regarding the possibility of prejudice against the defendant, since everyone in the federal courthouse in Tucson and probably the other federal courthouses in Arizona know him well. There may be a motion to change venue that probably is a good idea, so be aware of that. They may bring in a federal judge from some other district in the country, probably a Senior Judge (i.e., semi-retired).

The hearing probably will be scheduled for late Monday morning or sometime in the afternoon to permit Loughner and his counsel sufficient time to review the Complaint and Affidavit. I suspect Loughner is unable to retain counsel, therefore, counsel will be appointed to represent him. That will probably be the Federal Public Defender Office in Tucson and they probably will assign two of their lawyers to represent him. . . . Read the rest of this entry →

I am a retired law professor and former felony criminal defense attorney for 30 years. I also worked as an appellate court law clerk for four years after graduating from law school in 1972. I wrote this faux opinion after taking a look at the relevant CFR, which I set out below. The decision is easy to reach without grappling with the larger issues, but I mention them anyway just to point them out and suggest how they should be decided. The final sentence is my own editorial comment and you would no likely find a sentence like that in a legal opinion. Anyway, I offer this effort for your reading pleasure, or displeasure as the case may be.

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The issue raised by the gentleman at the San Diego Airport who refused to submit to the invasive genital scan stating, “If you touch my junk, I’ll have you arrested, is whether the TSA can impose a civil penalty of up to $11,000 based on his refusal. The TSA Guidelines recommend a fine of $500 to $1,500 for a first offender see Section VI(3)(B)(ii)] subject to a list of aggravating and mitigating circumstances that need not be discussed given this Court’s decision. The facts appear to be undisputed. TSA officials escorted him out of the building after refusing to permit him to board his flight. There does not appear to have been any physical resistance.

49 CFR § 1540.109 Prohibition against interference with screening personnel provides:

No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.

Since the gentleman did not assault, threaten, or intimidate screening personnel, this Court must decide the following questions: (1) did he interfere with a TSA official’s screening duties by refusing to be screened, and if so, did he have a right of privacy to do so such that he cannot be required to pay a civil penalty for asserting his constitutional right?

The answer: No, the gentleman did not interfere with a TSA official’s screening duties by refusing to be screened and voluntarily leaving the airport escorted by TSA officials. He also had the right to refuse to be screened under the Fourth Amendment and he cannot be required to pay a civil penalty for exercising that right.

Just as the law is well-settled that flying, like driving, is a privilege and not a right, so too is the law well settled that a genital search is an invasive search protected by the Fourth Amendment (citations omitted). Since abandoning his flight and leaving the airport is all that the gentleman did in this case after he was told that he could not board his flight, unless he submitted to the invasive genital search, he necessarily did not interfere with a TSA officer’s screening duties and there is no basis to impose a civil penalty under the regulation.

Whether the TSA may reasonably require a passenger to submit to a potential health compromising or injurious screening procedure that also effectively displays the person’s genital areas on a monitor as a condition of boarding a flight is a separate question that is unnecessary to decide in order to resolve this case. Clearly, however, the screening procedure is invasive and violates a person’s right to privacy. Since the right to privacy is not absolute, however, the issue can only be decided after weighing the totality of the circumstances and determining if the screening procedure is reasonably necessary to protect the public. That process would require an extended evidentiary hearing with expert witnesses and that has not happened. Therefore, this Court cannot reach that issue.  . . . Read the rest of this entry →

Detroit police officers serving a search warrant broke into the wrong apartment in a duplex discharging a stun grenade inside just before they entered. As the officers rushed inside, one of them fired his gun after he collided with a disoriented and confused grandmother standing in the living room. The fatal shot struck the girl in the neck as she was sleeping on the couch.

Link.