Defense attorneys for the suspect in an Arizona shooting rampage want assurances that a court-ordered mental competency evaluation doesn't expand into a review of their client's sanity. They argue that the exam should be done by an outside expert, not a federal Bureau of Prisons employee.
The lawyers also want the judge who ordered the examination of Jared Lee Loughner not to order him moved from a federal prison in Tucson, as federal prosecutors are suggesting. The attorneys refer to Loughner as their "seriously ill client."
Loughner has pleaded not guilty to charges stemming from the Jan. 8 attack in Tucson that killed six and injured 13, including Rep. Gabrielle Giffords. She remains at a rehabilitation center in Houston as she recovers from a bullet wound to the brain.
In court papers filed late Wednesday, lead defense attorney Judy Clark writes that moving Loughner would harm the defense team's efforts to develop an attorney-client relationship. She also insisted that an independent evaluator who isn't from Tucson conduct the exam. The examination should also be videotaped and defense lawyers should be allowed to view it live on a video feed, she argues.
Prosecutors, in a similar filing, suggested that Loughner should be sent to a federal medical center in Springfield, Mo., for the evaluation. They argued that the BOP facility has the staffing and expertise to conduct the exam, has facilities to test for neurological or other problems and the ability to monitor him day and night to see if he might be faking.
The federal filing also noted that the Springfield facility can treat Loughner to restore his competency for trial, if needed. "If the defendant is found incompetent, the BOP can restore competency at Springfield without transferring the inmate thereafter," the filing quotes the BOP's chief psychiatrist as noting.
Clark did not return a call seeking comment, and a spokesman for the U.S. attorney for Arizona said he would not comment beyond the filing.
The mental competency at issue refers only to a defendant's ability to understand the proceedings against him and to assist in his or her defense. Clark insisted that because the exam has been court-ordered, prosecutors should not be allowed to use anything they learn from it in their efforts to convict him, citing his Fifth Amendment rights against self-incrimination.
Defense lawyers have not said if they intend to present an insanity defense, but if they pursue that course, it will not be easy. After John Hinkley was found not guilty by reason of insanity for the 1981 shooting of President Ronald Reagan, Congress changed the law to make it much more difficult to claim insanity. Legal experts call any such defense an uphill battle after the changes.
Prosecutors have brought 49 counts against Loughner, including trying to assassinate Rep. Gabrielle Giffords, attempting to kill two of her aides, and killing U.S. District Judge John Roll and Giffords staffer Gabe Zimmerman. Loughner also is charged with causing the deaths of four others who weren't federal employees, causing injury and death to participants at a "federally provided activity" and using a gun in a crime of violence.
Many of the counts could bring a death sentence, but prosecutors have not announced if they will pursue that penalty. State charges are on hold until the federal case is complete but also carry the potential for the death penalty if Loughner is convicted.
U.S. District Judge Larry Burns ordered the competency exam at a hearing in Tucson last week. He ordered the defense and prosecution lawyers to try to agree on where and how it would be held, but after a meeting on Monday they were unable to reach a consensus. Wednesday's court filings throw the decision back to Burns.