RENEE MONTAGNE, host:
Over the next few minutes, we're going to hear about the latest legal developments coming out of the shootings in Tucson. Jared Loughner has now been indicted by a federal grand jury for the attempted assassination of congresswoman Gabrielle Giffords, and attempted murder of two of her aides. Arizona prosecutors may yet add state charges of their own but the initial focus will be on the federal case. NPR's Carrie Johnson reports that for Jared Loughner, an insanity defense would be a tough sell at the federal level - and even tougher in a state court.
CARRIE JOHNSON: Things got a lot more difficult for defendants who wanted to plead insanity after John Hinckley shot President Ronald Reagan 30 years ago this March. The outcry was so great that Congress changed federal law.
Mr. BARRY BOSS (Criminal defense attorney): The defense now has to prove by clear and convincing evidence, which is an extremely high burden, that the defendant did not understand the wrongfulness of his conduct.
JOHNSON: That's Barry Boss. He's defended clients who say they're too sick to be held responsible for their actions.
Mr. BOSS: And that's a very difficult thing to establish because even in the most delusional people, there is often some evidence that they did things to avoid getting caught.
JOHNSON: And that they took lots of steps to carry out their mission.
For instance, investigators say Jared Loughner visited two different stores to buy ammunition. He took the time to pose with his Glock weapon and developed the photos. The FBI says he also left a note that reads: I planned ahead. ..TEXT: That kind of detail could help prosecutors convince a jury that Loughner wasn't legally insane.
Lisa Wayne is a defense lawyer. She says most juries are like parents: They don't like excuses.
Ms. LISA WAYNE (Criminal defense lawyer): People out in the community really reject mental health defenses. They don't like them; they don't buy them.
JOHNSON: Legal experts say it's even harder to win an insanity defense in Arizona than in the federal system because the U.S. Supreme Court limited the kind of evidence that defendants could present in an Arizona case back in 2006.
Given all those challenges ahead for Loughner, his lawyer, Judy Clarke, might have just one main goal: to convince the Justice Department that he's too sick to be a candidate for the federal death penalty by presenting evidence of his writings, and maybe even brain scans and testimony from experts about his mental state.
The process involves a review by a special committee, and Attorney General Eric Holder would make the ultimate decision. Again, here's legal expert Barry Boss.
Mr. BOSS: The bottom line is, even if you can't get to the point where you can succeed upon an insanity defense, you will create mitigating evidence that can be used to argue against the death penalty. A realistic goal in a case like this, from a defense perspective, is to save Loughner's life.
JOHNSON: From the prosecution perspective, federal officials have the legal authority to prosecute crimes against the congresswoman, her staff members and federal judge John Roll.
But that doesn't extend to the other people shot outside the Safeway, such as the 9-year-old girl, Christina Taylor Green. County prosecutors could bring their own criminal charges for those deaths, under Arizona law. A spokeswoman for Pima County says they're still doing research, and that nothing's been decided except that federal prosecutors are moving first.
That's the way it was with the Oklahoma City bombing. Aitan Goelman worked on that federal case back in 1995.
Mr. AITAN GOELMAN (Trial lawyer): The D.A. in Oklahoma City said from the beginning that, you know, he planned to - whatever happened in the federal case, to prosecute the perpetrators in Oklahoma state court because out of the 168 people murdered in that crime, there was only federal jurisdiction over the eight federal agents.
JOHNSON: In the end, Oklahoma officials never tried Tim McVeigh for planting that bomb. A federal jury had already sentenced him to death. But the state made a different decision regarding his accomplice, Terry Nichols. Oklahoma spent the money to try Nichols, but they wound up getting the same result the feds did when they tried him: life in prison, not the death penalty.
Carrie Johnson, NPR News, Washington.
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