Expert: Only question is will Loughner get death

Loughner_Jared Police Photo U.S. Marshals Service

Federal prosecutors on Friday announced new charges against the suspect in the attempted assassination of Congresswoman Gabrielle Giffords, accusing him of killing six people and wounding 13 others who were exercising the fundamental American "right to meet freely, openly and peaceably with their member of Congress."

A federal grand jury returned the 49-count indictment Thursday, charging Jared Lee Loughner in the deaths stemming from a Jan. 8 shooting at a political event held by Giffords outside a grocery store.

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"This indictment is comprehensive and is solid, and covers all the murdered and injured victims," U.S. Attorney Dennis Burke said. "There are no distinctions at all between the victims. These victims were exercising one of the most precious and fundamental rights of American citizens."

The indictment charged Loughner in the murders of U.S. District Judge John Roll and Giffords aide Gabe Zimmerman, and with causing the deaths of four others who were not federal employees, including a 9-year-old girl.

Loughner also was charged with causing the death of a participant at a federally provided activity; injuring a participant at a federally provided activity; and using a gun in a crime of violence.

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Loughner had pleaded not guilty to earlier federal charges of trying to assassinate Giffords and kill two of her aides.

His attorney, Judy Clarke, didn't return a call and e-mail left at her office by The Associated Press Friday.

Federal prosecutors haven't yet said whether they will seek the death penalty against Loughner. But legal experts believe it's a virtual certainty.

And one expert, former federal prosecutor Sunny Hostin, told "Early Show on Saturday Morning" co-anchor Russ Mitchell, "He's going to be convicted. It's a question of whether or not he will be put to death."

Loughner will likely face state charges in the attack, as well, but will be tried in federal court before any prosecution begins on state charges. Federal and county prosecutors said federal law requires state prosecutions to be suspended while a federal case is pending.

Loughner is scheduled for a court hearing in Tucson on Wednesday, when he will be arraigned on the new charges.

A day after the shootings, prosecutors filed a complaint in court charging Loughner with trying to assassinate Giffords, attempting to kill two of her aides, and killing Roll and Zimmerman. Those charges were later replaced by federal indictments that mirrored the same charges.

Hostin called the new indictment "really novel."

"Typically," she explained, "federal prosecutors have to have a federal hook. We know, initially, they were charging him because judge Roll was a federal judge who was killed. He was being charged with that murder. He was also being charged, of course, with the maiming of the congresswoman. That was the federal hook. This time, 49-count indictment, 28 pages, they are charging for the assault and murders of the civilians. And the way they are doing that is they're basically claiming the fact that they were attending this sort of 'Congress on the Corner' made that corner ... almost congressional ground. It was a federally-protected activity.

"I will say this: There's no question that he did this. So many witnesses. Why bring that sort of novel count, that novel legal argument here? (It) makes me a little uncomfortable. This is certainly going to be an issue on appeal."

Hostin added, "Many people are saying that it's because they want justice for the families. They don't want the state to be involved at this point. They want the federal government to get justice for those families."

What can we expect to see at Loughner's arraignment on the latest charges?

"I think we're going to see more of the same," Hostin replied. "Remember, he sort of had that crazed look at the last arraignment. He didn't speak. The judge entered a not guilty plea for him. I think we're going to see a lot of that. We may see his mental competency put forth. Judy Clark, his attorney, is a wonderful attorney. She's sort of a Dream Team attorney for him. She's a specialist in sort of getting people off for mental insanity. So I think we may hear a little bit about that at this arraignment."

But, Hostin pointed out, while the insanity defense is clearly the best way for Clark to go, "It is rarely, rarely successful. In (only) three percent of the cases it's successful. "

Why haven't prosecutors formally sought the death penalty yet?

"Having been at the U.S. Attorney's office," Hostin responded, "having been a federal prosecutor, this is a long and tedious process. When you want to bring a death penalty case, as a prosecutor, it goes all the way up to the attorney general. Eric Holder, our attorney general, will certainly have a say in this. So there is a capital review case committee. It will go to that committee. And it usually takes about 90 days.

But, she repeated, " ... I think this is not a question of whether or not he's going to be convicted. He's going to be convicted. It's a question of whether or not he will be put to death. And I think Judy Clark is gunning up for that."

Aren't there any pitfalls prosecutors might suffer from?

"I can't see it. I hate to say something is a slam-dunk. But again, everyone saw him. This was a premeditated act. I think he's going to be found guilty. He's going to be convicted. But it's only a question of whether or not he will be put to death."

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