The Best Possible Defense Lawyer for Jared Loughner
It has been reported that Judy Clarke will represent Tucson gunman Jared Loughner in court. Clarke has previously represented the unabomber Ted Kaczynski and other grim figures:
Judy Clarke is known in legal circles as "the patron saint of criminal defense attorneys" and "the One-Woman Dream Team."
Now, the nationally known criminal defense lawyer is adding Tucson mass shooting suspect Jared Loughner to an already long list of high-profile defendants that included "Unabomber" Ted Kaczynski, Olympics bomber Eric Rudolph, 9/11 conspirator Zacarias Moussaoui and South Carolina mother Susan Smith, who drowned her two sons...
The Asheville, N.C., native, with more than three decades of criminal defense experience, is considered one of the nation's leading experts on death penalty cases. A fierce opponent of the death penalty, Clarke has helped several high-profile defendants avoid death row, including Kaczynski, Smith and Rudolph.
On balance I think that it is a good thing that Jared Loughner will get the best possible defense lawyer. The first point is that if the death penalty is imposed, there will be greater public confidence in the verdict if Loughner is represented by the strongest possible lawyer.
The second point is that in these cases, the issues on criminal responsibility do not only concern the issue of whether the action was done, or even whether it was done with an intention to kill. Considering both the act and mind requirements (actus reus and mens rea), the case is pretty straightforward. The level of planning was too thorough to deny either of these elements. And lord knows there are enough witnesses. But the criminal law allows for all sorts of other defenses by way of mitigation, including those which go to the level of the capacity of the defendant. In addition to the acquittal by way of insanity, there are also mitigation defenses based on diminished capacity. In general today there is vast hostility toward the outright acquittal on the insanity defense. But there is some wiggle room on the diminished capacity defense, and that could easily lead to the judgment that the death sentence is inappropriate.
There is little doubt that the sentencing phase of this case will be far more controversial than the earlier phase dealing with responsibility. The positions on the death penalty vary from those who think that it should never be used to those who think that it is underused on both moral and deterrence grounds. Those philosophical differences will be aggravated by what is likely to be a very contentious set of factual disputes. Remember the prosecutor could well find evidence which shows that the motivations make the crime even more heinous than we now expect.
There will also be larger discussions about gun control. For a perceptive view as to why those reforms will not work, see Steve Chapman’s excellent column this morning in the Chicago Tribune.
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Oct '10
Re: The Best Possible Defense Lawyer for Jared Loughner
Thank you, professor. I too believe that society is best served by equal justice under the law. Any high profile case such as this needs to be prosecuted and defended both competently and scrupulously. There is little disagreement on this. Where there is need for public debate and modification of public policy is in the preventative rather than punitive aspects of the criminal behavior of the mentally ill.
Sep '10
Re: The Best Possible Defense Lawyer for Jared Loughner
It's probably obvious to everyone else, but I've often wondered why there is no guilty-by-reason-of-mental impairment plea.
Dec '10
Re: The Best Possible Defense Lawyer for Jared Loughner
I don't think he'll get the death penalty. Sheriff Dupnik has almost utterly destroyed the Arizona case, we'd be lucky to get any state convictions at all. Obama's speech may have taken the Federal death penalty off the table because if Roll was not acting in an official capacity, there is no Federal crime there.
Oct '10
Re: The Best Possible Defense Lawyer for Jared Loughner
I see no benefit in the case being prosecuted under Federal jurisdiction. We all have dual citizenship in the Republic, but the crime was primarily against the citizens of Arizona.
Aug '10
Re: The Best Possible Defense Lawyer for Jared Loughner
If I had gone off my onion and killed a bunch of people, and my choice were between the death penalty and a life of imprisonment and continued mental sickness, I'd gladly welcome death.
Not that my peculiar moral calculus has any weight in matters like these. But I do sometimes wonder how many others feel the same way I do.
May '10
Re: The Best Possible Defense Lawyer for Jared Loughner
"Given the gravity of the charges, the possibility of the death penalty and our discussions with the U.S. attorney's office, we believe that death-qualified counsel must be appointed," Federal Public Defender Jon Sands said in court papers, according to the Associated Press. -USAToday
Im wondering - is Ms. Clark volunteering her services pro bono or has she been hired by the (Federal?) public defender?
Also, who has jurisdiction over this case? The State of Arizona or the Federal Government?
Nov '10
Re: The Best Possible Defense Lawyer for Jared Loughner
I also believe that Loughner should have the best possible defense lawyer. He should receive a fair trial, with all due process and every benefit of the Law.
Then he should be hanged.
One thing about American culture (especially the MSM) that deeply disturbs me is our tendency to forget the dead and wounded as quickly as possible. I am not made that way. Nine-year-old Christina Green haunts me. Everything she had and everything she was going to have has been taken away from her. My sympathy is for her and the other victims — already mere statistics fading from the public consciousness.
No tears for Loughner. I do not care how sick he is; I do not care what his crazy motivations were. His life may have been a wreck, but that does not excuse wrecking the lives of others.
Christina Green will always haunt me. In that sense, Loughner has tainted my own life. He should be put down like the mad dog he is.
Re: The Best Possible Defense Lawyer for Jared Loughner
We should all want Loughner to get the best possible counsel, even though it is obvious that he is guilty. Our legal system, to its credit, does not put a judge in the position of finding the facts of a case. It depends on two sides fighting it out in court, and from that contest the truth will emerge -- think of medieval England with a dispute settled by two champions jousting on the field. Our system fails if either the prosecution or defense does not represent its side to the best of its ability.
For me, the true waste of resources occurs in the death penalty stage. If Loughner is convicted, as I expect (unless he is found to be so mentally incompetent that he is not responsible for his actions), he should be eligible for the death penalty. Even if Loughner is convicted of the death penalty, it will be a long, long time before he is executed. The courts have so distorted the death penalty process -- both in deciding on the sentence and then on the appeals -- that millions of dollars in resources and decades are wasted. Regardless of how one feels about the death penalty (I, for one, believe it is constitutional and good policy), the current death penalty system is dysfunctional and will delay justice being done here for far too long.
Edited on Jan 13, 2011 at 11:08amRe: The Best Possible Defense Lawyer for Jared Loughner
Lady Kurobara: I also believe that Loughner should have the best possible defense lawyer. He should receive a fair trial, with all due process and every benefit of the Law.
Then he should be hanged. · Jan 13 at 11:04am
I agree. Assuming the evidence shows that Loughner understood what he was doing--and that seems likely--his mental illness should not excuse him from the death penalty. It is important that his punishment fit his crime, and also that a strong message is sent to other would-be assassins.
Nov '10
Re: The Best Possible Defense Lawyer for Jared Loughner
George Savage
Lady Kurobara: I also believe that Loughner should have the best possible defense lawyer. He should receive a fair trial, with all due process and every benefit of the Law.
Then he should be hanged.
I agree. Assuming the evidence shows that Loughner understood what he was doing--and that seems likely--his mental illness should not excuse him from the death penalty. It is important that his punishment fit his crime, and also that a strong message is sent to other would-be assassins.
I have not forgotten your aunt, either, George. It is just that the death of a child is especially poignant.
Jul '10
Re: The Best Possible Defense Lawyer for Jared Loughner
Richard Epstein:
That's quite the roll call of glowing victories. May her streak continue.
Re: The Best Possible Defense Lawyer for Jared Loughner
Thank you, LK. But you know what? I am of the same mind as you. All of us: me, my aunt, you--we would all trade places with Christina Green if we could.
Re: The Best Possible Defense Lawyer for Jared Loughner
George Savage
Thank you, LK. But you know what? I am of the same mind as you. All of us--me, my aunt, you--we would all have gotten between Christina Green and the gunman if given the chance. · Jan 14 at 7:08am