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Trial not likely for Jared Lee Loughner in 2012

By Jacques Billeaud
Associated Press / January 6, 2012
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PHOENIX—The mentally ill man charged in the Tucson shooting rampage that killed six people and wounded Rep. Gabrielle Giffords and 12 others isn't expected to go to trial in 2012 as he continues to be forcibly medicated to make him psychologically fit to stand trial.

The case was put on hold indefinitely when psychologists diagnosed suspect Jared Lee Loughner with schizophrenia and a federal judge ruled the 23-year-old wasn't fit to stand trial in the shooting that occurred a year ago Sunday.

Loughner is being treated at a Missouri prison facility, where he has been forcibly medicated for more than five months with psychotropic drugs. Even though psychologists say his condition is improving, his lawyers have vigorously fought the government's efforts to medicate him.

Mike Black, a former federal defender who is now in private practice as a criminal defense attorney in Phoenix, believes it would take Loughner's lawyer a long time to prepare for a trial, if he is ever declared mentally fit.

"If he was restored to competency tomorrow, I don't think there would be a trial until 2013," Black said.

James Cohen, who teaches psychology in criminal law at Fordham University, believes the end result for Loughner will be the same, regardless of whether he goes to trial.

"He will be confined for the rest of his life," Cohen said.

He believes Loughner's attorneys oppose forced medication because they want him to act bizarrely at trial. It will be hard for a jury to see the depth of Loughner's psychological troubles if he is placid in the courtroom and appears to be cooperating with his attorneys, Cohen said.

"They think the medications actually disguise what's going on and that he should be judged on what's really going on and not based on what the medication created," Cohen said.

Loughner has pleaded not guilty to 49 federal charges stemming from the shooting.

U.S. District Judge Larry Burns has ruled Loughner can eventually be made mentally fit to stand trial. His current stay at the Missouri facility is set to end on Feb. 8 but could be extended.

Loughner's treating psychologist Christina Pietz has said in court that it could take another four months of treatment to make him ready for trial, meaning his stay could be extended until June if she can show the judge that Loughner has made progress but still needs more treatment.

If the judge finds Loughner is ready to stand trial, the criminal case will resume. But if Burns finds there's no likelihood of Loughner being made mentally ready for trial, he can dismiss the charges under a U.S. Supreme Court ruling that stipulates a person can't be indefinitely held for trial.

If the charges are dismissed, it's unlikely Loughner would be released. Instead, state and federal authorities would probably petition to have Loughner civilly committed and seek repeated extensions of his commitment until his death.

Legal experts say Loughner will have no choice but to mount an insanity defense if he does go to trial, because the shooting was captured on surveillance video and witnessed by dozens of people.

Loughner's lawyers haven't said whether they intend to present an insanity defense, but noted in court filings that his mental condition will likely be a central issue at trial. A call to his lead attorney, Judy Clarke, wasn't returned.

Insanity defenses, however, are risky because they often don't succeed.

A well-known insanity defense was mounted for John Hinckley Jr., who tried to assassinate President Ronald Reagan 30 years ago and has been committed to a psychiatric hospital after being found not guilty by reason of insanity.

The Hinckley case caused a public outcry and drew reforms that limited the insanity defense as an option.

Even if Loughner is found fit to stand trial and fails at an insanity defense, his lawyers could still use his psychological troubles to help save him from the death penalty if prosecutors choose to pursue that punishment, said Christopher Slobogin, an expert in criminal and mental health law at Vanderbilt University Law School.

Loughner's defense team has interviewed at least one of his relatives and sought records on other family members as part of an effort to show that his family has a history of mental illness.

Judy Wackt, the first cousin of Loughner's mother, was interviewed by a member of the defense team and has said Loughner's attorneys hope to use the family history in a bid to save him from execution.

Loughner, whose mental health declined in the two or three years before the shooting, has demonstrated bizarre behavior since his arrest.

He threw a plastic chair against a wall of his prison cell on two occasions and spit on one of his attorneys. He was put on a 24-hour suicide watch in mid-July after he asked a prison psychologist to kill him. Prison staff also reported that he had been pacing in circles near his cell door, screaming loudly, crying for hours at a time and claiming to hear messages from a radio.

He was removed from a May 25 court hearing when he lowered his head to within inches of the courtroom table then lifted his head and began a loud and angry rant. "Thank you for the free kill. She died in front of me. Your cheesiness," Loughner said before U.S. marshals whisked him out of the courtroom.

Pietz has said that since Loughner has been forcibly medicated, he knows Giffords is alive, that he has killed people and is now remorseful. In addition, his courtroom demeanor has changed. He sat still and expressionless for seven hours at a hearing in September.

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