Murder or Attempted Murder of a Member of Congress and Other Federal Officials and Employees: Implications in Federal Criminal Law and Procedure of Events in Tucson
Released: 2011-05-31T00:00:00

Introduction

Jared Lee Loughner was arrested on January 10, 2011, on a complaint charging him with attempting to kill a Member of Congress and of killing and attempting to kill federal officers and employees in the performance of the their official duties in violation of 18 U.S.C. 351(c), 1114, 1111, and 1113. What follows is a description of the federal procedures and attendant legal provisions generally associated with the prosecution of such cases. Comparable attributes of state law are beyond the scope of this report.

Pretrial

Federal and State Prosecution: Double Jeopardy

If probable cause exists to believe that Mr. Loughner committed the offenses charged, he may be prosecuted under state or federal law or both. Ordinarily, federal crimes of violence are also crimes under the laws of the state in which they occur. Nevertheless, at first glance, the Constitution's double jeopardy ban might be thought to preclude prosecution by both state and federal authorities. The ban, however, only applies when the same defendant is prosecuted for the same crime by the same sovereign . Following the Oklahoma City bombing, Timothy McVeigh and Terry Nichols were prosecuted and convicted in federal court. Mr. Nichols, who unlike Mr. McVeigh had not been sentenced to death following his federal conviction, was subsequently tried and convicted for the bombing and resulting deaths in Oklahoma state court.

Consequences of Seeking the Death Penalty

First degree murders committed in violation of 18 U.S.C. 1114 are punishable by death or imprisonment for any term of years or for life. The decision to seek the death penalty rests ultimately with the Attorney General. A number of procedural consequences flow from the prosecutor's decision to seek the death penalty.

Notice

When the prosecutor believes the circumstances justify the death penalty, he must notify the court and the defendant prior to trial or prior to the court's acceptance of the defendant's guilty plea, if the defendant elects to forgo a trial. Federal law permits imposition of the death penalty when authorized by statute as in the case of the first degree murder of a federal official or employee during the performance of his duties. In such cases, imposition of the death penalty requires a finding of at least one aggravating factor. The statutory list of aggravating factors includes instances, for example, when (1) the death occurred during the course of an assault on a Member of Congress or some other designated felony; (2) the homicide was committed in a particular heinous, cruel, or depraved manner; (3) a federal judge was a victim of the offense; (4) the defendant killed or attempted to kill more than one person in a single criminal episode; or (5) when "any other aggravating factor for which notice has been given exists."

Indictment

The Constitution affords defendants charged with a federal felony or capital offense the right to grand jury indictment. Although a defendant charged only with noncapital offenses may waive the right to grand jury indictment, capital offenses will ordinarily be prosecuted by indictment. When the prosecutor intends to seek the death penalty, the indictment must include the aggravating factors upon which the government intends to rely.

Counsel

The defendant in capital cases is entitled, upon request, to the assignment of two counsel, at least one of whom is "learned in the law applicable to capital cases." The right attaches at least upon indictment. Most appellate courts have concluded that the government's decision not to seek the death penalty extinguishes the statutory right. In addition to counsel, the court may authorize payment for investigative, expert, and other services "reasonably necessary" for the defense of an indigent defendant.

Venue and Jury Impartiality

The Sixth Amendment guarantees the criminally accused "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." In doing so, it reinforces the declaration which appears earlier in Article III: "The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trials shall be held in the State where the said Crimes shall have been committed."

In order to secure trial by an impartial jury in a high profile case, an accused may feel compelled to not be tried in, or by a jury of, the place where the crime occurred. In rare instances, the proximity, extent, and character of pretrial media coverage may be such that the courts will presume that trial by an impartial jury in a particular location is impossible. The Federal Rules of Criminal Procedure acknowledge such a possibility by providing that "Upon the defendant's motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair trial there." The anticipated trial of Timothy McVeigh in Oklahoma after the Oklahoma City bombing presented such a case. His actual trial in Denver did not.

Exceptional cases of extraordinary circumstances aside, however, the courts will ordinarily seek other means to secure trial by an impartial jury—granting continuances, instructing prospective jurors to avoid further pretrial publicity, imposing secrecy orders upon the participants, and questioning potential jurors thoroughly to ensure their impartiality (voir dire)—before granting a request for a change of venue as a last resort.

Media Relations

Justice Department guidelines generally describe the types of information which prosecutors may release concerning a criminal case and the types of prejudicial information which they should not. Local Rules of Criminal Procedure of the U.S. District Court for Arizona contain similar provisions applicable to prosecutors and defense counsel alike and authorize the court to make special efforts in "widely publicized or sensational criminal case[s]."

The courts are loath to deny the press and the public access to judicial proceedings and records, particularly those that have historically been publicly available. Yet in the face of substantial countervailing interests, they will close proceedings and seal records.

In the Timothy McVeigh prosecution, the court took several steps in the name of jury impartiality among others. It prohibited (1) court personnel from disclosing without court approval any information related to the case that was not part of the public record; and (2) attorneys appearing in the cases and anyone associated with them from public statements or leaking information concerning (a) the defendants' criminal record, character, or reputation; (b) the results of any tests that the defendants had taken or refused to take, or any statements that the defendants had made or refused to make to authorities; (c) the identity of any prospective witnesses or the specifics or creditability of their anticipated testimony; (d) the prospect or specifics of any anticipated or negotiated plea bargain; or (e) any speculation of the guilt, strength of evidence, or merits of the case.

The court also placed under seal (a) portions of Mr. Nichols's suppression motion; (b) certain FBI notes relating to its interview of Mr. Nichols; (c) portions of the defendants' motions for severance; (d) the information relating to the compensation for defense services provided prior to trial; (e) transcripts of material witness proceedings; (f) motions and orders relating to Mr. McVeigh's conditions of confinement; and (g) proposed questionnaires for prospective jurors.

In the Jared Loughner prosecution, the court only authorized the disclosure of sealed search warrant material after the final indictment had been filed.

Insanity Defense

The insanity defense is an affirmative defense which the defendant must establish by clear and convincing evidence. It is available as a federal criminal defense, when at the time of the commission of the offense, the defendant "as a result of a severe mental disease or defense, was unable to appreciate the nature and quality or the wrongfulness of his acts."

A defendant must notify the prosecutor, if he wishes to assert the insanity defense at trial or to introduce expert evidence of a mental disease or defect at trial or at his capital sentencing hearing. Notice of a defendant's intent to claim an insanity defense triggers the obligation of the court to refer the defendant for a psychiatric examination upon the motion of the prosecutor.

Competence to Stand Trial

The Constitution does not permit the criminal trial of a mentally incompetent defendant. It requires that a defendant have the mental capacity "to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in the preparing of his defense." The claim of incompetence to commit the offense in the form of an insanity defense notice raises the question of a defendant's competence to stand trial. Consequently, the Federal Rules authorize the court, in the face of such a claim, to order a psychiatric examination of the accused. If the court determines, after a hearing, that the defendant lacks the competence to stand trial, it may commit him to the custody of the Attorney General for medical treatment. Under narrow circumstances, such treatment may include involuntary medication designed to render a defendant competent to stand trial.

The court in the Jared Loughner prosecution granted the government's motion for a psychiatric examination to determine the defendant's competence to stand trial. On May 25, 2011, the court found the defendant incompetent to be tried at the time.

Victims' Rights

Pretrial victims' rights consist primarily of a right to notice, the right to confer, a right to attend, and a right to be heard. For purposes of the federal victim rights statute, a victim is "a person directly and proximately harmed as a result of the commission of a federal offense," and includes "[i]n the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime's estate, family members, or any other persons appointed as suitable by the court." On its face, the definition does not include victims of state crimes.

The statute affords victims the right to "reasonable, accurate, and timely" notice of, and generally not to be excluded from, any public judicial proceedings involving the offense. Victims enjoy a reasonable right to confer with prosecutors. In capital cases, the U.S. Attorneys Manual instructs United States Attorneys to consult with families of victims concerning the decision to seek the death penalty and to notify them of the Attorney General's decision. Victims also have a right to be reasonably heard at public judicial proceedings involving the acceptance of an offender's plea. These rights preclude a court approved failure to notify victims until after a plea agreement has been executed, but they do not give victims the right to veto a proposed plea agreement.

Discovery

Both the prosecution and the defense enjoy pretrial discovery rights. The government's failure to advise the defendant of exculpatory evidence or of evidence that undermines the testimony of its witnesses may undo the defendant's conviction. The prosecution has other disclosure obligations under the Federal Rules, including providing the defense with earlier statements of the defendant in its possession. Each side has an obligation to present, upon request, a summary of expert witness testimony upon which they intend to rely.

Trial

Rules govern the general attributes and procedures of a federal criminal trial. For example, the federal rules ban cameras from the courtroom. They assure the defendant the right to be present at every stage of the trial, a right he may waive by choice or persistent disruptive behavior. They supply the evidentiary standards within which a trial must be conducted. Yet application of the rules and control of a federal criminal trial rests primarily with the trial judge. "[T]he trial judge has the responsibility to maintain decorum in keeping with the nature of the proceeding; 'the judge ... is the governor of the trial for the purpose of assuring its proper conduct.'"

Victims' Rights

Traditionally, witnesses—even victims—could only be present at trial while they were testifying, lest their testimony be influenced by what they heard before they took the stand. Federal law now gives victims, even if they are also witnesses, "[t]he right not to be excluded from [trial], unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding." In capital cases, the right is reinforced by another statutory prohibition—one against victim exclusion from a trial simply because the victim might provide an impact statement during a subsequent sentencing proceeding.

Sentencing

Capital Punishment

Special procedures apply after a defendant is found guilty of a federal capital offense. A sentencing hearing is held before a jury to determine whether the defendant should be sentenced to death. First, in a murder case, the jury must determine whether the defendant acted with the intent necessary to qualify for imposition of the death penalty. If it does so, the penalty may be imposed only if the jury also finds one or more of a series of aggravating factors and finds that the aggravating factor or factors outweigh any mitigating factors to an extent justifying a sentence of death. As noted earlier, the statutory list of aggravating factors includes instances, for example, when (1) the death occurred during the course of an assault on a Member of Congress of some other designated felony; (2) the homicide was committed in a particular heinous, cruel, or depraved manner; (3) a federal judge was a victim of the offense; (4) the defendant killed or attempted to kill more than one person in a single criminal episode; or (5) when "any other aggravating factor for which notice has been given exists." Mitigating factors include, for example, (1) the defendant's impaired capacity; (2) the absence of a significant prior criminal record; (3) commission of the offense "under severe mental or emotional disturbance." Mitigating factors may also be found "in the defendant's background, record, or character or any other circumstance of the offense."

A federal death sentence is subject to appellate review. If upheld, the defendant is committed to the custody of the Attorney General for execution. The sentence of death, however, may not be carried out if the defendant lacks the mental capacity, as a result of mental disability, "to understand the death penalty and why it was imposed."

Noncapital Sentencing

In a capital case when the jury finds the defendant eligible for the death penalty but fails to unanimously recommend the death penalty, the court sentences the defendant to "life imprisonment without possibility of release or some other lesser sentence." When the prosecution elects not to seek the death penalty and when the defendant is convicted of a noncapital offense, the court sentences the defendant, without benefit of a jury.

Although the federal Sentencing Guidelines are no longer binding, noncapital sentencing begins there. The Guidelines provide a series of sentencing ranges beneath the statutory maximum for the offense of conviction, calibrated to reflect the seriousness of the offense and the extent of the defendant's criminal record. A sentencing court, with reasonable justification, may sentence a defendant outside the applicable Guideline recommended sentencing range.

Victims' Rights

Victims have a right to be reasonably heard during the capital sentencing hearing. Victims of a federal crime of violence are also entitled to an order of restitution, covering the cost of medical expenses, rehabilitation costs, and, in the case of a homicide, funeral expenses. Victims do not have a right to attend the execution of a defendant convicted of murdering a family member, although they may do so at the discretion of the Director of the Bureau of Federal Prisons and, to a more limited extent, at the discretion of the Warden.