Jared Loughner Defense Strategy: Federal, State Law Make Insanity Defense Far from Easy

Jared Loughner Defense Strategy: State and Federal Law Wont Make Insanity Defense Easy
Jared Laughner Mug Shot (Pima Sheriff's Dept.)

PHOENIX (CBS/AP) Jared Loughner has been described by friends as a social outcast with almost indecipherable beliefs steeped in mistrust and paranoia, claims that appear to be bolstered by Loughner's own writings and YouTube rants - making his a case that seems tailor-made for an insanity defense, according to many health and legal experts.

PICTURES: Jared Loughner

But federal and state law will not make it as easy for Loughner to invoke an insanity defense as it seemed to be for John Hinckley, the man who tried to assassinate President Ronald Reagan.

After Hinckley tried to assassinate Reagan and was found not guilty by reason of insanity in 1982, public outrage over the jury's verdict prompted Congress to make it much more difficult to establish that claim in federal criminal trials. Among the changes, the burden of proof over insanity has been shifted to the defense.

Loughner is currently only facing federal charges for the Saturday morning massacre that critically wounded Rep. Gabrielle Giffords in addition to taking six lives including a federal judge, a congressional staffer and a 9-year-old girl who was born on 9/11.  Pima County Attorney Barbara LaWall says her office is looking into state charges as well.

That would make an insanity defense even more difficult for Loughner because Arizona law doesn't allow for a finding of not guilty by reason of insanity.

Arizona law lets the defense make the argument for insanity, but the jury is only allowed to return a verdict of guilty, but insane - an outcome that provides for imprisonment if the convict recovers enough to leave a mental institution.

"So the person is held at a state mental hospital, and if sanity somehow comes back, he's transferred to prison, not just let go," LaWall said.

Neither the Justice Department nor the local prosecutor has yet said whether Loughner will face a possible death penalty.

But federal prosecutors are already moving forward with charges, and veteran lawyers anticipate they will ask for Loughner to be executed.

In that case the question of mental health could be used by the defense as a mitigating factor to prevent the death penalty by arguing "diminished capacity." In essence, this would mean that defense attorneys would concede that Loughner bears some responsibility for what he has done but lacks the guilt necessary to face the death penalty.

Whatever defense strategy Loughner's attorneys devise, they will most likely end up making it twice.

"It's often the case that both jurisdictions would file charges and then sort it out later," said John Canby of Phoenix, a board member of the Arizona state association of criminal defense lawyers. "If for some reason, the feds didn't want to go for the death penalty or didn't get it, it would be available at the state level perhaps."