In this artist rendering, Jared Lee Loughner makes his first court appearance at the Sandra Day O'Connor United States Courthouse in Phoenix, Ariz., Monday, Jan. 10, 2011. Loughner appeared in federal court on charges he tried to assassinate Rep. Gabrielle Giffords in a shooting rampage that left six people dead. (AP Photo/Bill Robles)
Like Oklahoma City bomber Timothy McVeigh, Jared Loughner, identified as the gunman in last weekend’s killings of congressional aide Gabriel Zimmerman, judge John Roll and several others, stands accused of crimes eligible for the federal death penalty.
As do the laws in 35 states, federal law authorizes the death penalty in some cases, including an offense specified in the criminal complaint against Loughner filed by the government on Sunday: murder of federal employees who were “engaged in the performance of official duties.”
Federal law gives the attorney general the sole discretion to decide whether to seek the death penalty. “That's probably the toughest decision that an attorney general has to make: when do you authorize the seeking of the death penalty?” Attorney General Eric Holder said in comments reported by National Public Radio in 2009.
Death penalty almost inevitable
“I can’t imagine the government not asking for the death penalty,” said Nina Ginsberg, a veteran defense lawyer in Alexandria, Va., who has represented clients in death penalty cases. “This will be an almost impossible case for the government not to ask for the death penalty.”
Whether Holder will seek the death penalty "is a question of how the facts develop — mostly about the defendant, not how the facts develop about the crime, because I don’t think there’s much that is not already known about the crime,” said law professor and defense attorney Andrea Lyon, the director of the Center for Justice in Capital Cases at DePaul University College of Law in Chicago.
Lyon has been the defense attorney in more than 30 potential capital trials.
“My guess would be that they will seek the death penalty,” she said.
But a long, complex process must unfold before any trial takes place, said Lyon. “It’s going to take a long time before this case goes to trial, I can tell you that right now.”
She said that Loughner’s competency to stand trial is a different question from whether his lawyers decide to use — and are successful in using — insanity as a defense.
Fitness to stand trial
Showing fitness to stand trial is an easier legal standard to meet than showing that a person is sane enough to be found guilty, Lyon said.
To be found unfit to stand trial, a person has to be determined to not understand, for instance, what he is charged with, not to know what a court is, or not be able to cooperate with his defense lawyers.
“Sometimes you have a defendant who is behaving so bizarrely” that the judge will, on his own initiative, order a doctor to examine the person to determine whether he can stand trial, Lyon said.
But “usually that is something that the defense asks that the court do,” said Lyon. “There may never be a fitness hearing, I don’t know.”
If the case does go to trial and if defense attorneys decide to use a defense of insanity, then it would up to the jury at the trial to decide whether the defendant were sane.
An insanity defense is “very unusual. I know that TV likes it and you see it all the time in the movies, but it is used very rarely — and successful almost never,” Lyon said.
David Bruck, Clinical Professor of Law and Director of the Virginia Capital Case Clearinghouse at Washington and Lee University, said, “Insanity is an affirmative defense that must be raised by the defense in order to be considered by the jury. So there is no way to know at this early stage whether it will be at issue in the trial in this case.”
Trying to head off death penalty
Before any trial, Loughner’s defense counsel likely would seek to meet with federal prosecutors in Arizona to try to persuade them to not ask for the death penalty.
Defense counsel can present mitigating evidence, that is, reasons not to punish the accused person with the death penalty, “such as mental or psychological problems or physical problems,” said Lyon.
The federal prosecutors in Arizona who are handling the case will at some point, likely to be months from now, make a recommendation to the Department of Justice in Washington as to whether the death penalty should be sought.
A committee on capital cases at the Justice Department will then meet to consider the case. At that stage, too, said Lyon, defense attorneys would have a chance to make their argument that the department ought not to ask for the death penalty.
Ultimately the attorney general will make a decision on whether to seek the death penalty.
President Barack Obama said during the 2008 presidential campaign that he supported the death penalty for crimes for which the "community is justified in expressing the full measure of its outrage."
Eileen Connor, a lawyer in Newark, N.J., who has written a recent critique of the federal death penalty in the Journal of Criminal Law & Criminology, said “the attorney general could determine never to authorize the death penalty, or to authorize it in every case. The decision is final and not reviewable by any court.”
Ultimately, the attorney general “is accountable as a political appointee and may face removal in the event that the president is not satisfied with the implementation of the federal death penalty.”
Usually, attorneys general "do what the local prosecutors want to do, but not always. Particularly when (George W.) Bush was president, sometimes local (federal) prosecutors said ‘we shouldn’t seek death in this case’” and the Justice Department would decide to seek the death penalty anyway, Lyon said.
It’s not easy for non-lawyers to understand why the Justice Department seeks the death penalty in some cases but not in others.
“That’s because every case is unique," Lyon said. “Some of it has to do with their assessment of the crime and the criminal. Some has to do with their assessment of their ability to win the case and the strength of their evidence.”
If authorities in Arizona also decided to prosecute Loughner, the federal trial would take place first, Lyon said. The state authorities might decide to not indict him or they may wait. “There’s no statute of limitations on murder,” she noted.
Arizona is one of the 35 states that has its own death penalty statute.
If Loughner were tried in federal court and the death penalty were sought but the federal jury decided not to give him the death penalty, Arizona could seek to try him and put him to death.
The federal death penalty has been carried out in three cases since Congress reinstated federal capital punishment in 1988: They are:
According to the Federal Death Penalty Resource Counsel, since 1988, the government has taken to trial federal death penalty cases involving 270 defendants. Sixty of them are now sentenced to death and waiting the outcome of their appeals.
Connor noted that Holder has authorized at least one capital prosecution in a state that banned the death penalty, Vermont. In such cases, she argued, “the local values, expressed in the refusal to enact a death penalty statute, or to seek the death penalty, are undermined.”
Facing the death penalty in that Vermont case is Michael Jacques, who has been charged with kidnapping, raping and killing his 12-year-old niece.