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Jami FloydBack to OpinionJami Floyd

If the defense fits: Don’t toss out the insanity defense yet for Loughner

When the funerals are over, the speeches are made, the recoveries are (God willing) well underway, and we come to a verdict in this case, it will all come down to one simple question: What was he thinking? In the end, all the jury that passes judgment on Jared Loughner will need to know is this: What was his state of mind, on Saturday last? For, with each day that passes, it becomes increasingly clear, despite any possible political context, that the shootings in Tucson were committed by a person suffering from some sort of mental disease or defect. The question now becomes not whether his mental state will factor into his defense in a court of law, but how much.

Judy Clarke

Jared Loughner has the best possible criminal defense attorney, given the available defenses. I say this having covered — in my capacity as a law and justice reporter — every high-profile case Judy Clarke has handled in the last 15 years: Susan Smith (who drowned her children), “Unabomber” Ted Kaczynski and abortion-clinic bomber Eric Rudolph. She also served as stand-by counsel in the terrorism trial of Zacarias Moussaoui. Each time, she managed to avoid the death penalty for notorious death-eligible defendants.

At the moment, Jared Loughner is in the media spotlight and seems doomed. But as the history of these other cases instructs, he may not be. In those cases, Clarke’s clients were found guilty, but she was able to argue that, while perhaps not insane as a matter of law, they were mentally impaired. This argument concedes that a defendant bears some responsibility for what he has done, but lacks the guilt necessary to face the death penalty.

There is, however, another option: the insanity defense.

Jared Loughner

Every analyst I have heard discussing Jared Loughner’s case has discounted the insanity defense out of hand. While I understand the reluctance of criminal defense attorneys to employ the defense, in some cases, it can, and should apply. Jared Loughner’s may be that case.

Before the attempted assassination of President Reagan, Loughner’s would have been a clear case of insanity. Loughner’s apparent premeditation would not have been seen as undercutting insanity; it would have been part of demonstrating insanity.

But public outrage over the jury’s verdict in John Hinckley Jr.’s trial — not guilty by reason of insanity — prompted Congress to make it much more difficult to establish that claim in federal criminal trials. This simply reinforced the public misconception about the insanity defense. (Contrary to popular belief, these defendants do not go free. A not guilty by reason of insanity verdict means a hospital for the criminally insane rather than a prison. Though Hinckley was found not guilty by reason of insanity, for example, he has remained under strict institutional psychiatric care since then.) Under the post-Hinckley rules, proving insanity is an uphill battle.

That leads most defense attorneys to avoid the defense altogether — a mistake, I believe, if the defendant is, in fact, insane.

Judy Clarke may agree. In representing Ted Kaczynski, she initially attempted to make an insanity case. The effort failed, but it demonstrates her willingness to use the defense where the facts and the mental state of the client justify its application.

Ted Kaczynski

In Kaczynski’s case, the legal team ultimately negotiated a settlement by which Kaczynski pleaded guilty in exchange for avoiding the death penalty, still a good result for a man who most thought would receive a death sentence, given the clear premeditation of his acts, the long written exposition of his politically motivated plot, the innocence of his victims and the sheer awfulness of what he did. Clearly, unlike most attorneys, Clarke will attempt to show insanity where she feels her client is entitled to that defense.

Despite the early handicapping by the sideline legal analysts, it is simply too early to say whether Jared Loughner is insane as a matter of law. But most lay people — i.e., prospective jurors — probably already consider him to be mentally ill based on media reports of his bizarre behavior, not to mention his eerie mugshot.

The few hard facts we do have come from the complaint filed by federal prosecutors, who hint at the proverbial mountain of evidence they plan to use against Loughner. This mountain may make any defense outside of insanity practically impossible.

First, there is at least one surveillance tape of the shooting. Second, there are any number of eyewitnesses available to testify. Finally, to prove intent and premeditation, the authorities apparently have a letter from Loughner’s house bearing the words, “I planned ahead,” “My assassination” and “Giffords” next to what looks to be Loughner’s signature. And they have evidence that he purchased the weapon used in the attacks on November 30.

It would be hard to imagine prosecutors having a better case when it comes to the actual elements of the crimes — but for sanity.

I have heard the pundits: “Most insanity defenses don’t succeed,” and they are right. One study found that less than one percent of criminal trials involve an insanity defense; and only 25 percent of those resulted in an NGI verdict.

This statistic is a concern but not a determinant. Here’s what I know, and Judy Clarke knows too: Because prosecutors only take their best cases to trial, most defendants don’t succeed at trial — whatever their defense.

So what’s a defense lawyer to do? Great defense attorneys know that the best strategy is the one that aligns most closely with the truth. It is clear from even the initial reports that Jared Loughner was spiraling downward toward insanity. The only question now is whether, on Saturday, he’d already arrived.

Jami Floyd is a lawyer, an award-winning journalist and a nationally renowned news anchor.