Now lets see how our legal system deals with this one.
"Fair Trial for Loughner Poses Big Challenge for Court System" PBS Newshour Transcript 1/24/2011 (includes video)
Excerpt
GWEN IFILL (Newshour): 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.
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