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Loughner to face separate federal and state prosecutions

The suspect will be defended by Judy Clarke, who kept the Unabomber and the Olympics bomber off death row. His lawyers will probably examine whether insanity is his only potential defense.

January 11, 2011|By Richard A. Serrano and David Savage, Washington Bureau

Reporting from Washington — The judicial process for Jared Lee Loughner, accused in the Tucson shooting rampage, promises to be a long and potentially convoluted one involving both federal and state prosecutions.

Loughner's federal defense team, led by high-profile capital-defense lawyer Judy Clarke, will probably examine whether he has any defense other than insanity, and whether an insanity defense alone could keep him off death row, legal experts said.

Clarke, a former head of the National Assn. of Criminal Defense Lawyers, is based in San Diego, and has represented Theodore Kaczynski, the Unabomber, who pleaded guilty by reason of insanity, and Atlanta Olympics bomber Eric Rudolph. Both escaped death and are serving life sentences. Clarke also represented Susan Smith, the South Carolina woman who drowned her children by driving her car into a lake. Smith is serving a life term.

Loughner, 22, appeared in federal court Monday on a five-count complaint including allegations that he attempted to assassinate Rep. Gabrielle Giffords (D-Ariz.) and killed a federal judge and a congressional aide, charges that could include the death penalty if he is convicted.

The shooting rampage killed six people and injured 14. The five federal charges involve the five government employees who were victims.

Also Monday, Pima County Atty. Barbara LaWall said her office will launch its own prosecution against Loughner on behalf of the four others who were killed and 11 injured.

Clarke was brought into the Loughner defense at the request of Jon Sands, the federal public defender in Arizona. He told a federal judge that they would need her assistance and expertise because she was qualified in death penalty cases.

Lawyers who know Clarke say that Loughner presents "a classic Judy Clarke case": one that is high-profile, a potential federal court death penalty case, with political and public pressure on prosecutors to seek the death penalty, and a client not likely to garner much sympathy. Her opposition to the death penalty is one of her passions.

"She just feels that the country should not be executing people when the death penalty is so capriciously applied," said Sacramento attorney Quin Denvir, co-counsel with her in the Kaczynski case.

During his brief court appearance Monday, Loughner had a faraway stare. When asked a series of questions about the federal charges against him, he seemed calm and articulate, and said he understood the charges.

"There will be a mental health defense," predicted Andrea Lyon, a DePaul University law professor who directs the Center for Justice in Capital Cases. "That may be the only route to go. But the truth is, it is very, very hard to win" on an insanity claim.

The most notable success was John Hinckley Jr., who in 1982 was acquitted by reason of insanity in the attempted assassination of President Reagan.

Since then, Congress and the courts have made it harder for defendants to win leniency because of a mental condition. In general, a judge or jury must be convinced the defendant did not understand his acts were wrong.

An insanity defense is difficult to prove, though Loughner's writings on the Internet suggest he was troubled and held beliefs that make little sense. Pima County Sheriff Clarence W. Dupnik described Loughner as an "unstable loner."

LaWall said she is in "no rush" to press state charges against Loughner because he is in federal custody.

"We do have exclusive jurisdiction over all the victims that are not covered in the federal prosecution," LaWall said. "We have a little bit of legal research to do. Can we proceed simultaneously or should we wait until the federal prosecution is completed?" She said she had not decided whether to seek the death penalty.

LaWall said she would still pursue a state case even if Loughner is sentenced to death in a federal court.

"We have numerous other victims that are not covered by the federal statute," she said. "And you never know when a case is going to get reversed on a technicality and overturned … part of this is providing justice for our other victims. And that is very important to me."

Times staff writer Tony Perry in San Diego contributed to this report.

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