Legal experts: Loughner's only defense is insanity

James A. Cohen in Associated Press, October 02, 2011

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PHOENIX (AP) — A judge has ruled that Tucson shooting rampage suspect Jared Lee Loughner isn't yet mentally fit for trial, but legal experts say it's only a matter of time before his competency is restored and that his lawyers will have no choice but to mount an insanity defense.

The judge extended Loughner's four-month stay at a Missouri prison facility by another four months so doctors can continue to pursue his readiness for trial and assist his lawyers. In that eventuality, Loughner, 23, will most likely invoke his mental illness as a legal defense because the Jan. 8 shooting outside a Tucson grocery store that killed six and injured 13, including U.S. Rep. Gabrielle Giffords, was captured on surveillance video and witnessed by dozens of people.

"I don't see what other defense he's got," said Stephen J. Morse, a professor of law and psychiatry at the University of Pennsylvania. Morse, who has followed Loughner's criminal case. Morse believes Loughner will be made mentally fit for trial.

Loughner appeared in court on Wednesday for the first time since May, when in an angry outburst he shouted "Thank you for the free kill!" This time, he sat expressionless and quiet throughout the seven-hour hearing, having been forcibly medicated with psychotropic drugs for the last 60 days.

U.S. District Judge Larry Burns concluded that Loughner can probably be made psychologically ready for trial, begging a broader question: What happens next?

If the judge finds four months from now that Loughner is ready to stand trial, the case will resume.

If Loughner is found to still be mentally unfit, Burns could give him another four months at the prison facility in Springfield, Mo., though the judge said he'd have to see more progress by Loughner before he grants another extension.

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 an individual can't be indefinitely held for trial.

If the charges are dismissed, state and federal authorities would likely petition to have Loughner civilly committed and seek repeated extensions of his commitment until his death.

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 immediately returned Friday afternoon.

Loughner has pleaded not guilty to 49 charges stemming from the shootings, which killed federal judge John Roll, 9-year-old Christina-Taylor Green and Giffords staffer Gabe Zimmerman, and three others.

Prosecutors haven't said whether they will seek the death penalty if Loughner goes to trial. But, if so, his attorneys are expected to use his mental condition to save him from a death sentence.

James Cohen, who teaches psychology in criminal law at Fordham University in New York City, said he thinks there's little possibility Loughner will get the death penalty if his case goes to trial, even if he gets a tough jury, because of his mental illness.

"That may be one of the reasons his lawyers are trying to keep him off medication, because he will make a sorrier sight, although a scarier sight, if he's taken off medication," said Cohen, who also believes Loughner will eventually be made fit for trial.

But pursuing an insanity defense is risky because it often doesn't succeed.

Insanity defenses are used in less than 1 percent of all felony cases in America, and of those that go to trial, only about 25 percent of those defenses succeed, said Christopher Slobogin, an expert in criminal and mental health law at Vanderbilt University Law School.

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

Other notable insanity defenses were made by Andrea Yates, the mother who drowned her five children in the family's Houston bathtub in 2001, and Lorena Bobbitt, a Virginia woman who cut off her husband's penis in 1993.

Yates succeeded in having her capital murder conviction overturned and was found innocent by reason of insanity at her retrial. Yates, who had been diagnosed with schizophrenia and other mental illnesses, was sent to a maximum-security mental hospital.

Bobbitt was acquitted by reason of insanity.

But Jeffrey Dahmer, who confessed to killing, dismembering and sometimes cannibalizing 17 boys and men in Ohio and Wisconsin, pleaded guilty by reason of insanity in 15 of the cases.

The jury found him sane on all counts, and he later pleaded guilty to one of the killings. Dahmer was bludgeoned to death by another inmate in 1994 while serving a life sentence.

Mike Black, a former federal defender who argued four death penalty cases and is now in private practice as a criminal defense attorney in Phoenix, said the Hinckley verdict caused an outcry and drew nationwide reform that limited the insanity defense as an option.

Still, Black thinks Loughner stands a chance in front of a jury with the insanity defense, but said it will be a difficult argument for his attorneys to make because juries are afraid that defendants will be set free.

"They think, 'This guy is a wacko but we can't find him not guilty because he could shoot us at a grocery store,'" Black said.

Whatever happens with Loughner's fitness for trial and regardless of whether he goes to trial, Fordham University's Cohen believes the end result will be the same.

"It all ends up with him in some sort of jail-type facility," Cohen said. "Either it will be a prison or it will be a psychiatric hospital, and he will be there the rest of his life. It seems to be a foregone conclusion."