The Best Possible Defense Lawyer for Jared Loughner

by Richard Epstein

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 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 showing 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.