Investigators have been poring over surveillance video, interviewing witnesses and analyzing items seized from Jared Loughner’s home as they build a case in the assassination attempt against Rep. Gabrielle Giffords.
It’s a case that likely will take years to play out as it goes through the many phases of the criminal justice system: prosecutions by both federal and state authorities, proceedings over whether to move the case to a different venue, a possible insanity defense by Loughner and prosecutors’ likely push for the death penalty.
The next step is an arraignment scheduled Monday afternoon in Phoenix for Loughner, who is accused of opening fire on a Giffords political event two weeks ago in a rampage that wounded 13 people and killed six others, including a federal judge and a 9-year-old girl born on Sept. 11, 2001.
In a court filing late Sunday, the U.S. attorney for Arizona asked that the federal case be transferred back to Tucson for all further hearings.
The U.S. attorney’s office filed a motion late Sunday to move all future court proceedings to Tucson, arguing that it’s difficult for victims to attend hearings if they have to drive four hours round trip to Phoenix. Local federal court rules also require that a crime that happens in the court’s Tucson region should be tried there unless a court moves the case.
The arraignment will go on as scheduled Monday at 3:30 p.m. ET in Phoenix.
Loughner is charged in a federal indictment with attempted assassination of a member of Congress and trying to kill two federal employees. Additional federal and state charges are expected.
The case was moved to Phoenix because one of the six dead, U.S. District Judge John Roll, was based in Tucson and federal judges there recused themselves. All the federal judges in the rest of the state soon joined them, and a San Diego-based judge is now assigned to the case.
Investigators have said Loughner was mentally disturbed and acting increasingly erratic in the weeks leading up to the shooting. If he pleads not guilty by reason of insanity and is successful, he could avoid the death penalty and be sent to a mental health facility instead of prison.
Paul Charlton, who worked as Arizona’s U.S. attorney from 2001 to 2007 and isn’t involved in the Loughner case, believes Loughner will likely mount an insanity defense. “Given what we know, that’s going to be a defense,” Charlton said.
“I don’t see a lot of other viable defenses,” said Michael Piccarreta, a Tucson lawyer who has practiced criminal defense in federal court for 30 years. “It appears the actual guilt or innocent of the shooting will not be difficult to prove, and his pre-shooting behavior seems to be a history of erratic behavior – issues of pre-existing mental illness.”
Before the case even gets to trial, the court would have to decide whether Loughner is mentally competent to stand trial. If he isn’t, he would be sent to a federal facility for a minimum of four months to see if they can restore his competency. It could be up to a two-month wait just to get him into one of those facilities.
“It could take a year, it could take a year and a half. It could take longer,” Heather Williams, the first assistant federal public defender in Arizona, said of the time it will take to bring the case to trial. Her office didn’t take the Loughner case because it had conflicts of interest.
One area that will help the pace of the case is the fact that it’s a relatively simple investigation. While other high-profile cases have required a lengthy investigation to chase down leads and co-conspirators, authorities have said Loughner acted alone. Dozens of people witnessed the shooting and surveillance cameras captured it on tape.
Investigators say they have also seized writings from Loughner in which he used words like “I planned ahead,” “My assassination” and “Giffords.”
Loughner will face two cases – federal and state. The federal charges will cover the killing and attempted killings of U.S. government employees such as the judge and Giffords, while the state case will deal with the other victims, including the 9-year-old girl. Federal prosecutors are going first, as charges have yet to be filed in the state case.
Pima County Attorney Barbara LaWall has the discretion to decide whether to seek the death penalty against Loughner in the state case, while the federal decision on whether to seek the death penalty rests with Arizona U.S. Attorney Dennis Burke and Attorney General Eric Holder, Charlton said. Prosecutors haven’t signaled whether they would pursue the death penalty, but experts say all signs point toward that.
Federal law gives prosecutors a reasonable amount of time before trial to inform a defendant that they are seeking the death penalty, but there is no hard deadline for doing so.
Whether the case plays out in Arizona is up in the air. First, the case was moved to Phoenix from Tucson after all federal judges there recused themselves because their colleague was slain, although Sunday’s filing shows the government wants it sent back. Next, defense lawyers could ask that the case be moved out of Arizona by arguing that extensive negative publicity would make it impossible for Loughner to get a fair trial.
There was so much speculation that San Diego would ultimately be the home for the trial that federal authorities were prompted to issue a statement last week denying the reports and saying it’s way too early in the case to discuss. The judge presiding over the case works out of San Diego, and Loughner’s court-appointed lawyer, Judy Clarke, is based there as well.
Clarke has not responded to requests seeking comment. She is one of the top lawyers in the country for defendants facing prominent death penalty cases, having represented clients such as “Unabomber” Ted Kaczynski and Olympic bomber Eric Rudolph. She has a reputation for working out plea deals that spare defendants the death penalty, as was the case for Rudolph and Kaczynski.
Piccarreta expects the trial to eventually be moved out of Arizona, because of people’s connections to Roll and Giffords.
“My personal view is that Arizona is still too close. Why risk a potentially unfair trial when you can move the matter outside of the state,” Piccarreta said.
He later said, “They have moved cases out of the state with far less (media) exposure than this,” noting that a 1981 trial into the killing of Arizona Republic reporter Don Bolles was moved from Phoenix to San Diego.
Another dramatic scenario that could arise in a criminal case: Giffords testifying against Loughner. It’s too early to know if that will happen, and Charlton said prosecutors have many other options for witnesses given that so many people were there when the shooting occurred.
“I suspect that there is sufficient evidence relating to who did what here. Not every witness would have to be called,” Charlton said.