by Jim Nintzel
“Thank you for the freak show!” shouted Loughner, who is facing 49 charges related to the Tucson shooting spree on Jan. 8 that killed six and wounded 13, including Congresswoman Gabrielle Giffords, who was shot in the head. “She died right in front of me. You’re treasonous!”*
After Loughner was removed from the courtroom, Burns completed his ruling regarding the release of records related to the Pima County Sheriff’s Department’s investigation into the shooting. He determined that the records would remain sealed for now.
Burns then called a brief recess, after which he asked Loughner if he wished to return to the courtroom for the discussion of whether the accused murderer was competent to stand trial. Loughner chose to watch the proceedings on television in a nearby room.
Burns ruled that after reviewing the reports from doctors who had examined Loughner, he had concluded that the defendant was not competent to stand trial and ordered him to be placed in the custody of the U.S. Attorney General and sent to a federal facility for psychiatric treatment so he can be restored to competency.
Both prosecutors and defense attorneys agreed with reports from a psychologist and psychiatrist who examined Loughner concluding that he is not competent to assist in his defense against the 49 counts stemming from the failed assassination attempt on Giffords, who is still recovering in a Houston rehabilitation facility after being shot in the head.
The doctors concluded that Loughner suffers from schizophrenia that results in delusions, bizarre thinking and hallucinations, according to Burns. They also concluded that Loughner is not malingering.
The next court hearing is slated for Sept. 21.
Burns’ decision to send Loughner to a federal medical center for psychiatric treatment does not mean that he won’t face trial, says Kurt Altman, a former prosecutor with the U.S. Attorney’s Office who now works as a criminal defense attorney in Phoenix.
“There’s a misconception out there that this is a blow to the prosecution’s case,” Altman says. “It’s really not. The Constitution guarantees a trial for competent individuals, and because there were certainly issues in regards to his mental capacity or mental deficiencies or whatever, the prosecution certainly wants to get that out into the open right away. … He has to understand the nature and the consequences against him, and he also has to be able to assist his counsel in his defense.”
That’s why prosecutors pushed to resolve the issue of competence at a March hearing, over the objections of the defense team. By resolving the issue now, it means it won’t be a problem on the eve of a trial or even after a trial has begun.
“Competency can be raised at any time, and you don’t want to have to go back and start this process over and basically reinvent the wheel,” Altman says. “So the earlier they address it, the better for them.”
The question of whether Loughner is competent to stand trial is a separate issue from an insanity defense, according to Altman.
“Competence focuses on his mental state now, as we sit here today, and his ability to understand what he’s going through,” Altman says. “It has nothing to do with whether he’ll stand trial or not.”
Under federal law, a team of doctors will work with Loughner to restore him to competence to stand trial for up to four months. If they are making progress but have not yet restored him to competence, they can request another four months, says Altman, who adds that in the vast majority of cases, the defendant is restored to competence and faces trial.
It’s possible that Loughner could be forced to take medication against his will as part of the restoration process, but that will require another court order, according to Altman.
“We don’t know what his treatment may be,” he says. “But if they determine, ‘Hey, we believe that psychotropic drugs of whatever kind are going to benefit his treatment,' and he refuses, then you’re in a sticky wicket. … It’s very difficult to get a court order to force medication on somebody.”
Loughner could face the death penalty if convicted of the charges against him, which include killing U.S. District Judge John M. Roll, Gabe Zimmerman, Dorothy J. Morris, Phyllis C. Schneck, Dorwan C. Stoddard and Christina-Taylor Green.
Altman explains that after Loughner is restored to competence, it’s possible that his defense team will inform prosecutors that they intend to present an insanity defense, which “would focus on, ‘He didn’t understand what he was doing. He didn’t understand that what he was doing was wrong at the time of the incident.’ … The best example is somebody who thought God told them to do it, and they believed that was what was going on, and they can prove that God told them it was the right thing to do. They didn’t know what they were doing was wrong at that point.”
If a jury were to find Loughner not guilty by reason of insanity, “it doesn’t end there,” Altman says. “That doesn’t let him walk out the door. There are civil-commitment proceedings for people who are a danger to themselves and others.”
* I originally thought Loughner had yelled out "You're changing it!" but others reported that he said "You're treasonous!" After listening to a recording of the outburst and having heard many of Loughner's other irrational speeches, "You're treasonous" seems to be a more likely comment.