By Jerry Markon
Washington Post Staff Writer
Thursday, January 13, 2011; A06
Everyone gets his day in court, but the key day for Arizona shooting suspect Jared Lee Loughner could be if a jury decides whether he should be spared the death penalty because of his mental state, defense lawyers and former prosecutors said Wednesday.
Loughner, accused of killing six people and wounding 13, including a congresswoman who remains hospitalized, is innocent until proven guilty, and the federal charges against him are barely four days old. His defense team will surely fight for acquittal.
But lawyers with expertise in high-profile cases said the facts arrayed against the suspect in Saturday's shooting in Tucson - there were up to 150 witnesses, several of whom held the shooter down until police arrived - may prove overwhelming. Loughner's lawyers, they said, will focus on using his troubled mental state to keep him off death row.
"Guilt is not the issue here. Everyone saw him do it; he was stopped there. There's just no question,'' said Jonathan Shapiro, a Fairfax County lawyer who defended Washington area sniper John Allen Muhammad. "The issue is his mental state, and the sole goal is to avoid the death penalty.''
Loughner is charged with murder and attempted murder in the shootings outside a supermarket that killed a 9-year-old girl, a federal judge and four others, and wounded Rep. Gabrielle Giffords (D-Ariz.). Several counts could carry the death penalty. His lawyer, San Diego attorney Judy Clarke, is known for trying to keep defendants in other high-profile cases from being executed.
A tireless campaigner against capital punishment, Clarke convinced a South Carolina jury in the 1990s that Susan Smith did not deserve to die for drowning her two sons. She also represented Unabomber Theodore Kaczynski, who is serving a life term in prison.
"She's great for Loughner,'' said Alan Yamamoto, an Alexandria lawyer who worked with Clarke on the defense of Zacarias Moussaoui, the conspirator in the Sept. 11, 2001, attacks whose mental health played a central role in his case. "She's an expert in the death penalty phase of a case and looking into someone's background. She'll delve into everything.''
Clarke did not return telephone calls seeking comment Wednesday. Lawyers said one of her first moves will likely be to seek a change of venue for the trial, arguing that an Arizona jury cannot be objective given the trauma of the events.
"The case may very well be moved out of Arizona,'' said Joseph diGenova, a Washington lawyer and former U.S. attorney in the District. But he added that a new venue may not help the defense because the "saturation of information" from the Internet and other news sources means potential jurors anywhere will be familiar with the shootings.
Clarke's biggest focus, said lawyers who know her, will be to explore an insanity defense and, if Loughner is convicted, to gather evidence about his mental state to use during a possible death penalty phase of the trial. She will also search for other "mitigating'' factors, such as childhood abuse, that could persuade a jury to spare his life, lawyers said.
Authorities and people who know Loughner say his erratic behavior included outbursts at a local YMCA and disruptions in classrooms and libraries at Pima Community College.
"Judy is going to be gathering every bit of evidence she can about the guy's behavior, anything that makes him look crazy,'' said Shapiro, who is a friend of Clarke's. "Everything about this young man's past needs to be investigated, all his bizarre behavior.''
Insanity defenses at trial, which lawyers said are always difficult to mount, have grown even more so since John W. Hinckley Jr. was found not guilty by reason of insanity in the 1981 shooting of President Ronald Reagan. DiGenova, who oversaw that prosecution, said the verdict led to legal changes that give defense lawyers a higher burden to prove insanity than in the Hinckley case.
In death penalty cases, the Supreme Court has long held that the insane may not be executed. In 2007, the court ruled, 5 to 4, that a mentally ill convicted murderer, whose delusions prevented him from having a "rational understanding" of his sentence, could not be put to death.
It is not known whether Loughner, who is likely to be evaluated by both defense and government psychiatrists, will be found to be mentally ill. Prosecutors will probably counter any insanity defense - and argue for his execution - by laying out evidence they will say shows that he meticulously planned the shootings.
"They want to show that whatever his problems may have been, that did not preclude him from planning this in advance," diGenova said. "Planning connotates thought and analysis. Those traits are theoretically inconsistent with insanity, though not necessarily.''