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Fair Trial for Loughner Poses Big Challenge for Court System

January 24, 2011 at 12:00 AM EST
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Alleged Tucson shooter Jared Loughner appeared Monday in a Phoenix courtroom, where a plea of not guilty was entered on his behalf. Gwen Ifill talks to Michael Kiefer of The Arizona Republic about the day's events, and then to Laurie Levenson of Loyola Law School for an in-depth look at the legal issues at play in the case.
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TRANSCRIPT

GWEN IFILL: Next: to today’s court hearing for the man accused of carrying out a mass-shooting in Tucson just two weeks ago.

Jared Loughner appeared for an arraignment this afternoon in a Phoenix courtroom. The federal charges against him include the attempted assassination of Congresswoman Gabrielle Giffords and the attempted murder of two of her aides. He will later face state charges dealing with the other victims.

For more on Loughner’s time in court today, we turn to Michael Kiefer of The Arizona Republic.

Thank you, Michael, for covering this for us.

So, what did he plea, and — and how did it come out?

MICHAEL KIEFER, The Arizona Republic: Well, actually his attorney allowed — asked the judge to enter a plea for him, a plea of not guilty.

And it’s pretty much a procedural thing. The most interesting thing I think is that, as in his earlier appearance, he smiled all the way through it. He laughed, seemed to laugh at — as if at some private joke.

And the rest of it, as I said, was procedural. They discussed a motion to move the proceedings down to Tucson because the victims and the witnesses are down there, and…

GWEN IFILL: Well, let’s — well, I want to ask you…

MICHAEL KIEFER: Yes.

GWEN IFILL: I want to ask you about that, but I want to go back to this question of his — his demeanor.

We just saw some sketches that showed him wearing glasses and an orange jumpsuit. What — how was he led in? How was he led out? Did he stand? Did he sit? Did he speak?

MICHAEL KIEFER: No, he didn’t speak. He was brought in, in an orange jumpsuit and in belly chains and leg irons, his hands cuffed to the chain around his waist.

And he came in and sat at the table and waited maybe 10, 15 minutes before the hearing started. And that’s when he was smiling.

He looked quite a bit different actually from his last hearing. His face is no longer swollen. He looks leaner. His hair is growing out. And he was wearing glasses. It looked — I guess you would say he looked more like that picture in his Facebook page, where he’s wearing glasses.

GWEN IFILL: Who was in the court, besides reporters and lawyers?

MICHAEL KIEFER: That’s pretty much it.

There were probably about 110 people there, mostly — mostly journalists. And it didn’t appear that there were any family or friends there. So, it was — that was it.

GWEN IFILL: Perhaps because it was in Phoenix, there weren’t relatives of victims or anything like that?

MICHAEL KIEFER: You know, it’s really hard to say at hearings.

Very often — I cover the courts, and it’s not uncommon for few people to show up to the hearings. The whole thing was over, I think, about seven, eight minutes.

GWEN IFILL: Mm-hmm.

MICHAEL KIEFER: The — they entered the plea. They discussed moving the case to Tucson or moving the procedure back down to Tucson. The defense attorney, Judy Clarke…

GWEN IFILL: For people who don’t — yes, just pardon me for a minute. For people who are not familiar with the way Arizona, the geography of Arizona, Tucson is some distance from Phoenix, a couple hours away. So, it’s not insignificant…

MICHAEL KIEFER: It’s an hour-and-a-half or two hours.

GWEN IFILL: Yes.

GWEN IFILL: So, it’s not insignificant that it was discussed moving the venue.

MICHAEL KIEFER: No. And in the motion that was filed yesterday, the prosecutor had in fact said — noted that it’s a two-hour drive each way. So, it really would create a hardship for people who wanted to attend the — the hearings.

GWEN IFILL: So, you mentioned Judy Clarke, his defense attorney, who didn’t object to moving this back to Tucson.

I’m curious about why we saw the charges that were brought today and not others we came to expect. Like the murder charges, we didn’t see those today.

MICHAEL KIEFER: Well, under — you know, under the constitution, you have a certain number of days to get someone indicted in order to hold them. So, he’s been indicted on these charges, and then they will take their time.

The prosecutor, Wallace Kleindienst, said that a superseding indictment would be forthcoming probably within about 30 days. So one would assume that that would have the two federal murder charges. And then the state has decided to take a back seat and — for the time being.

But there will be subsequent charges. And in fact, it’s my understanding that Loughner could also still be charged again for the murders that he will be — that he’s already been charged for, but not yet indicted…

GWEN IFILL: I just want to clear one other thing up about venue…

MICHAEL KIEFER: … indicted on.

GWEN IFILL: Mm-hmm — about venue, which is there was some talk for a while that this — because a federal judge was involved, and so many judges had to recuse themselves, that this might be moved out of state entirely. Is that still a possibility?

MICHAEL KIEFER: Well, you know, it’s a possibility. It’s — it’s really hard to say.

I know there were assumptions made that, because the judge is from San Diego and the defense team is from San Diego, that it would go to San Diego.

But, you know, there’s a lot that has to happen yet. I mean, they’re going to probably discuss issues of whether Loughner is competent to stand trial. They’re going to — who knows what could happen if he’s going to plead guilty. The only time — or enter into a plea agreement, rather.

The only time that the — well, a change of venue has to do with the jury. They want to make sure that they can find an impartial jury. So, when they’re sure it’s going to a jury trial, then that may come up at that point.

GWEN IFILL: OK. Well, that’s one of the things we will…

MICHAEL KIEFER: It’s really — it’s really very early.

GWEN IFILL: … we will watch for.

Michael Kiefer, thank you very much.

Now, for a closer look at the legal and ethical issues at play in the Loughner case, we are joined by Laurie Levenson, professor of criminal law at Loyola Law School and a former federal prosecutor.

Let’s pick up where Michael Kiefer just left off, Ms. Levenson.

This whole question about competency, we — we heard this kind of disturbing story of him coming to court today, laughing as if to himself. We have heard lots of other stories about him. At what point does that begin to enter into the determination of the court about what charges to bring and how he’s to be prosecuted?

LAURIE LEVENSON, Loyola Law School: Well, I think that the judge even today asked Judy Clarke, the defense lawyer, are there issues of competency? And she said, not at this time.

I think they’re trying to sort this out. Eventually, they might send him out for a competency exam. They would send him to a hospital prison institution to be evaluated — that could take months — and determine whether he really understands the proceedings and can participate.

If he can’t, he’s sent to the institution to get better. And then, when he is better, they will have the proceedings. But if he’s competent, they will just move forward.

GWEN IFILL: Now, not at this time, that doesn’t mean — that doesn’t preclude her possibility of making this case later. Just today she wasn’t prepared to make that case.

LAURIE LEVENSON: That’s right. She is very — moving very carefully here. There’s a lot that needs to be sorted out.

They still need to know what the federal authorities are going to charge, whether they’re going to seek the death penalty, what his mental state is, what his mental history shows. So, I think Judy Clarke is doing what she often does, play it close to the vest, not reveal anything more than she has to.

GWEN IFILL: You say — you say what she often does. She’s known in legal circles for these kind of — making — mounting this kind of defense before?

LAURIE LEVENSON: She has represented very difficult defendants in the past. Probably the one best known by your viewers is the Unabomber, Ted Kaczynski, who also had some mental problems. She also represented Susan Smith, who drowned her children.

So, Judy Clarke is very familiar, both with the federal death penalty and then with mental issues as well. She needs to get the information from the government in order to decide what her tactics will be for her client.

GWEN IFILL: One of the things you would think she would be worried about is the possibility of a tainted jury. Today, they were talking about moving this back to Tucson, exactly — exactly the place where you could imagine every single person they could call for jury — a jury would have heard about this, if not all over the country. Why wouldn’t she have objected to that today?

LAURIE LEVENSON: I think it’s a matter of timing.

I mean, right now, as the reporter said, they’re just dealing with pretrial matters and hearings. And I think she wants to appear as cooperative as possible. If they end up having this trial in Arizona, she’s fighting for his life perhaps. She wants it to look like they’re cooperating.

There will be a time, if there actually is a trial, for her to argue, it’s unfair. There’s inflammatory publicity. We have got to move it out, maybe move it to San Diego or somewhere else.

But she doesn’t have to argue that now.

GWEN IFILL: How does one determine if someone is mentally competent to stand trial in a case like this, especially when there has been so much publicity about what seems to be instability on his part?

LAURIE LEVENSON: This is something that has to be sorted out, frankly, by experts, by the doctors, to make sure that this isn’t a show, which some people will claim, that, in fact, he doesn’t really get what’s happening in these proceedings.

Now, it’s a low threshold to be competent. And the odds are, he probably is competent. We have had people like Colin Ferguson, the freeway — I mean, the subway shooter in New York. He was bizarre, but he was competent.

And there’s two different issues here, of course, whether he’s competent to stand trial, which is simply, does he understand what’s happening? Can he participate? And then the separate issue of whether he will raise an insanity defense.

GWEN IFILL: And there’s some evidence at least that the government has put forward that there is — may have been premeditation involved in his actions, which leads one to think that that doesn’t make him insane, if he can sit there and plot and plan. But I guess you could argue this lots of ways.

LAURIE LEVENSON: That will be much harder for him.

GWEN IFILL: Yes.

LAURIE LEVENSON: Gwen, you’re — you’re absolutely right.

You know, if he’s planning, and they have the writings by him that’s calling it an assassination, and he’s buying the ammunition, and taking the taxi, and then, on the day of the shooting, when he’s told to get back in line, and he momentarily does that, that shows that he was functioning.

And the standard for insanity is no longer the one that we had before, when Reagan was shot. It’s one that very difficult for defendants to meet.

GWEN IFILL: Is there a distinction to be made between the federal charges which are being brought against him and the state charges that we anticipate as well?

LAURIE LEVENSON: There are.

I mean, first of all, the state charges, we assume, will be the murder charges, probably going to be the death-penalty charges. The procedures are different. In the federal charges, he’s starting to get some of the discovery here. I think he got a load of 250 interviews already for his lawyer to review.

So, the procedures are different. And, also, the tone of the courtroom can be quite different.

GWEN IFILL: Laurie Levenson of Loyola University Law School, thank you so much for helping us out.

LAURIE LEVENSON: A pleasure.