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The Tragedy in Arizona Continues

Dave Hardy talks about Judge Roll’s viewing and funeral. He also speak about attending the ABC Town Hall, and some mistakes the legal community think is being made with the killer’s prosecution:

Local legal conversation is that running with the Federal charges first is a mistake, and probably an FBI publicity grab. (1) The insanity defense is the likely defense, and while the Feds have a modified M’Naughton “not guilty by reason of insanity” defense, Arizona has “guilty but insane,” which means the defendant goes to a mental institution, and when release from that goes to prison to finish his sentence. (2) Arizona has a “natural life” sentence, meaning a real life sentence, he leaves the prison when he dies. I don’t know if the Feds so. (3) Proving murder one in Arizona involves proving just that. The Federal crime is murder of a government official, which requires proof in addition that the victim was on official duty. Gabby Giffords was clearly on duty, but it’d only be attempted murder. Judge Roll would be murder, but it may be hard to prove he was on official duty if he hadn’t already started speaking to the Representative within hearing of witnesses, and had brought up court business. Odds are that he was indeed there to speak about the needs of the court, or to thank her for past concern shown, but proving that beyond a reasonable doubt may be a problem.

So the Federal charges may be harder to prove than the State ones would be, the Federal insanity defense is much more effective, and the State sentencing options are better. It’d be better to go with the State charges first, or to go with them exclusively.

These are the people we’re supposed to count on to protect us? The goal should be making sure the killer never walks the streets again. Otherwise this guy is going to be like Hinkley, and end up back out on the streets. The feds are doing everything to make sure that happens, it seems. They should leave this to the State of Arizona, so we can get this guy off the streets for good, and get some justice for the families. This guy was with it enough to plan. He’s with it enough to pay a debt to society for what he did.

Fortunately, I believe the State of Arizona can still pursue state charges after the feds are done with him. Double jeopardy only applies to each sovereign separately. You can still be tried by both the state and federal governments for the same crime.

15 Responses to “The Tragedy in Arizona Continues”

  1. Ian Argent says:

    The ugly side of politics.

    OTOH, I’m not entirely sure why Attempted Premediated Murder carries less of a penalty than succeeding.

  2. Dannytheman says:

    I just heard, on Fox News, that they have multiple video of the entire shooting incident as it occurred in the parking lot of the shopping center. That might help the prosecution a bit!

  3. Ian Argent says:

    The feds need a juristictional “hook” to try him – as Sebastian noted, for the feds to prosecute, they not only have to prove that Mr. Loughner killed a person, but that what he did was a crime that the fed.gov has juristiction over. If Judge Rolls was there in his private capacity, the feds don’t have juristiction. The federal government does not have general police powers.

  4. Chas says:

    “The insanity defense is the likely defense…”

    Markie Marxist sez: “Of course it is! We’ve had a great deal of success at getting our Marxist/warrior/hero/criminals off with the insanity defense. We got Hinckley out for picnics with his parents after he shot the president. Since Loughner didn’t shoot anybody more important than a congresswoman and a federal judge, there’s a good chance that we may be able to get him out for something really nice, like a trip to Disneyland. We love anybody who helps to destabilize and bring down America, and Loughner’s really helped us out with with our gun ban agenda too. That’s why you see absolutely no animosity towards him personally whatsoever coming from the political left. He’s been a big help! We love him! He’s our boy! He’s the one who created the crisis that we’re not going to let go to waste! Ha! Ha!”

  5. ParatrooperJJ says:

    I doubt any federal judge is going to bounce the case of a murdered federal judge juristictional hook or not.

  6. Ian Argent says:

    @ParatrooperJJ: That’s bad, if the jury takes their job seriously. The prosecution has to convince the jury beyond a reasonable doubt that there was a crime prosecutable in federal court, and that the defendent committed it. Each has to be proved separately.

  7. “Local legal conversation is that running with the Federal charges first is a mistake, and probably an FBI publicity grab.”

    Government. Is there anything that it can’t screw up?

  8. Exodus says:

    The Fedgov, of late, hasn’t been particularly good at leaving things to the State of Arizona. This continues the trend.

  9. Scott says:

    Haven’t you learned from DeShaney you can’t depend on the government to protect you?

    If the killer was of a darker complected demographic would Holder drop the case just short of a guilty verdict?

  10. Sebastian says:

    That should have been a ? on the end of that, which change the tone a bit.

  11. Scott says:

    Who decides if the fedgov gets to prosecute? The local DA, AG, or sheriff?

  12. dustydog says:

    I know how the law is interpreted, but the 5th amendment is clear, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”. This language has been tortured like the 2nd amendment.

    Trying him in both federal and state court is a clear violation of the 5th and 14th amendments.

    Likewise, I’d say that the common DA tactic of having 50 charges for the same crime, to be able to plea a defendant down, is clearly violative, as is adding hate crime onto whatever the underlying crime was, or holding back some charges in case the first time doesn’t stick. One offense, even if the offense is shooting a dozen people, should equal one jeopardy.

  13. Ian Argent says:

    @dustydog – They claim the offense is different. See below for a reason why this isn’t terrible.

    @Scott The feds decide who to prosecute – I don’t believe the state can preempt the feds or vice versa, except in a purely technical sense of scheduling their case to try first. Likewise the fed can’t stop the state from prosecuting.

    If only one or the other could prosecute, this actually would be a serious problem, though, as there could be a race to judgement to see who could try him, and likely the feds would win that one. In this case, AZ could still nail him for the non-federal crimes, I suppose. Federalism is a delicate thing, both ways. If eithe rside botched the prosecution, he could walk.

  14. “It’d be better to go with the State charges first, or to go with them exclusively.”

    That’s assuming that the end goal is to lock him up for the longest period of time.

  15. Shootin' Buddy says:

    “probably an FBI publicity grab”

    Probably? There are 200 FBI Agents investigating this matter.

    The forests of Oregon will be wiped out with all the 302s generated.

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