Defense opposes mental exam of Tucson suspect

James A. Cohen in The Houston Chronicle, March 10, 2011

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SAN DIEGO — The decision to have the suspect in the Tucson, Ariz., shooting rampage undergo a psychological examination seemed obvious given the man's bizarre behavior both before and after the deadly attack.

So why would Jared Loughner's lawyer try to stop something that seemingly could help his defense?

Legal experts say it's not that simple: The threshold a judge uses to determine if someone is mentally competent to stand trial is extremely low — usually based on whether the person understands the proceedings and the judge and attorneys' roles. It does not address a person's mental state during the offense.

That means almost everyone passes, said Mike Black, a former federal defender who is now in private practice as a criminal defense attorney in Phoenix. He is not involved in the Loughner case.

"They would find a tomato competent," Black said.

A determination that Loughner is mentally competent to stand trial now could make it harder for him to invoke an insanity defense later, legal experts say.

In such a case, jurors would have to decide whether Loughner was so insane during the attack on Congresswoman Gabrielle Giffords' event that he did not know what he was doing, said Fordham Law School professor Jim Cohen, a former federal defender.

"It's a standard that jurors are very reluctant to accept," Cohen said. "They want to hold somebody accountable."

Even if jurors believe Loughner is mentally ill, that doesn't guarantee they will determine he didn't know right from wrong and therefore find him not guilty by reason of insanity, Cohen said.

Loughner, 22, potentially faces the death penalty in the Jan. 8 rampage. His court-appointed public defender, Judy Clarke, is known for her ability to win plea agreements that spare capital punishment for people who seemed destined for it, such as "Unabomber" Ted Kaczynski.

Many speculate Clarke is putting her strategic-thinking skills to work now.

"There are all kinds of strategies that the defense can consider, and I have no doubt that she's considering every one of them," said defense attorney Stephen Jones, who represented Oklahoma City bombing suspect Timothy McVeigh. "It's been demonstrated that no case can't be won and no case can't be lost."

Loughner has pleaded not guilty to dozens of federal charges, including trying to assassinate Giffords, attempting to kill two of her aides, and murdering federal judge John Roll and Giffords staffer Gabe Zimmerman.

Prosecutors had asked for the psychological evaluation, citing a YouTube video in which they believe a hooded Loughner wore garbage bags and burned an American flag, and a photo posted on MySpace of the type of gun used in the rampage.

Investigators said that after the shooting, they found handwritten notes such as "I planned ahead" and "Die, bitch" in a safe at Loughner's home.

U.S. District Judge Larry Burns on Wednesday granted prosecutors' request. He said he had his own concerns about the mental competency of Loughner, who has often smirked and smiled during his court proceedings.

Clarke unsuccessfully argued that an exam was premature and would interfere with her ability to work with and develop trust with Loughner.

She said she would raise the issue when it needs to be addressed and noted that the existence of a mental illness doesn't necessarily render a person incompetent. Clarke said prosecutors were relying on a suggestion of mental issues.

Clarke did not return calls from The Associated Press on Thursday.

Kaczynski, who bombed abortion clinics in the late 1990s, opposed being depicted in court as being mentally ill. But Clarke eventually got him to go along with a plea agreement that was based on a mental health defense and spared him the death penalty.

Jones said Loughner, like Kaczynski, may not want to undergo the evaluation.

Clarke may not like the idea of an examination conducted by mental health professionals hired by the prosecution, and it behooves her to delay the proceedings and allow emotions surrounding the case to subside, legal experts say.

Defense attorneys may also want to find out themselves whether Loughner was aware of his actions during the attack or became mentally incompetent after his arrest. And they might be combing the indictment for mistakes that could later work in their favor for negotiating a plea bargain, experts say.

"It's possible that whatever he says may be used against him or it could give the government an opportunity to see him, have interaction with him, even if they do not do more than watch him through a window," Jones said.

And there's a chance the results could be leaked before the findings are made public.

"It's all — to some extent — about the loss of control over the defendant," Jones said.

Prosecutors want the issue out of the way to avoid it being used in the future to challenge a ruling.

Their motion seeking the mental evaluation says a federal medical center staffed by U.S. Bureau of Prisons psychiatrists or psychologists would provide the most efficient way. Prosecutors also say the government would allow Clarke to do a separate exam.

Loughner also is charged with causing the deaths of four others who weren't federal employees, causing injury and death to participants at a "federally provided activity" and using a gun in a crime of violence.

He likely will also face state charges stemming from the attack outside a Tucson grocery store. Giffords, who was shot in the head during the rampage, has been slowly recovering from a traumatic brain injury at a Houston hospital.

Burns scheduled a May 25 hearing to determine if Loughner is competent to stand trial.

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Jacques Billeaud in Phoenix contributed to this report.