There was some head-scratching a couple of days ago over the Justice Department’s indictment of Jared Lee Loughner in the Tucson shootings case because he was not charged with the murders of Chief Judge John Roll and Gabriel Zimmerman, a legislative aide to Rep. Gabrielle Giffords. Instead, the indictment charges only the attempted murders of Representative Giffords and her two other aides, Ron Barber and Pamela Simon. (My column a few days back explained that there is no federal jurisdiction to charge murder or attempted murder in connection with the victims who were not federal officers.)

I was interviewed by Politico’s Josh Gerstein for his report a couple of days ago. As I told Josh, I don’t think there is anything mysterious afoot — unusual, yes, but not mysterious. Ordinarily, when a defendant is arrested on a “complaint” (i.e., not a grand jury indictment but a mere arrest warrant supported by an agent’s complaint affidavit describing the probable cause for the charges in the warrant), the feds must indict that defendant within 30 days under the Speedy Trial Act. If that defendant has been denied bail, however, the time to indict shrinks to ten business days.

It is a very bad thing for the prosecution to put things in an indictment that turn out not to be true. Indictments are products of grand jury testimony, and if there is a mistake in the indictment it signals that someone gave incorrect testimony, which can cause problems for the prosecution at trial. Particularly in a case where the defendant does not confess and the government has to prove the charges based on witness testimony and physical evidence (and I don’t know what admissions, if any, Loughner made to the police), ten business days is not a lot of time to conduct thorough interviews of the eye-witnesses and get the FBI’s very busy (and incredibly good) lab to process all the ballistics evidence and write the exacting reports that are the basis for their experts’ testimony.

As a result, what the Justice Department often does when defendants have been detained pending trial is file what I call a “stop the clock” indictment, alleging just one or a few serious crimes that are the easiest to prove. These offenses are pleaded in bare-bones fashion: a minimalist recitation of the offense elements required to be proved. This charging instrument stops the ticking of the speedy-trial clock, provides formal charges weighty enough to justify continued detention, and avoids the possibility of inadvertently saying something that may turn out to be wrong.

Later on, when there has been more time to process and digest the evidence, Justice will seek a superseding indictment — adding additional charges and pleading them in a more expansive, narrative form that will highlight for the eventual trial jury how and why the defendant did what he did. That is, the bare bones indictment is filed early for procedural reasons; the superseder is the later “roadmap to conviction” on which the government will go to trial.

The press release issued by the U.S. attorney in Arizona to announce the charges makes this clear — although it includes a feature I think is unusual. It describes the charges filed as “an initial three-count indictment” (emphasis added). That’s rarely done: the government usually takes the position that it is ready to go to trial on any indictment it obtains. Here, instead, it is signaling from the outset that the this is just the first indictment and there is more to come. That’s entirely appropriate given the great public interest in the Tucson case and the obvious fact that people unfamiliar with due process rules are sure to be puzzled by the lack of murder charges.  

There are two other complicating factors here that I didn’t think to mention to Josh in our quick email exchange the other night: the parallel state investigation and the death penalty.

In most cases, the feds proceed without concern about what state and local law enforcement are up to. Here, that cannot happen. There will be a state prosecution as well. The U.S. and Arizona will need to call the same witnesses. In fact, Tucson police and other first responders were undoubtedly the first officials from any government on the scene, and they, too, will be necessary witnesses.

Consequently, it is very much in the public interest that the feds and the state work cooperatively — including coordinating witness interviews. All interview notes by any agency will probably have to be disclosed to the defense prior to trial. If there is not coordination, there will inevitably be inconsistencies in the recorded statements — not because witnesses are lying but because no two investigators writing interview reports will summarize a witness’s version of events the same way. It would be irresponsible to give defense lawyers such a gift, so the agencies will have to play nicely together, even though they will occasionally grumble about each other.

Capital punishment also complicates matters. As the U.S. attorney’s press release explained, “This case also involves potential death-penalty charges, and Department rules require us to pursue a deliberate and thorough process.” That is true. After an exhaustive investigation, the U.S. attorney will have to make a recommendation to Main Justice about whether capital murder charges are warranted. In that process, the defense will be invited to make a presentation on why the death penalty should not be sought. After the U.S. attorney makes his recommendation, Attorney General Holder will have to decide — with input from his top advisers and, perhaps, with another presentation by defense counsel (assuming the U.S. attorney has recommended capital charges).

That takes a lot of time. What the U.S. attorney’s press release doesn’t say, though, is that there is no reason why the government could not file non-capital murder charges now and then supersede later with a death penalty notice. (If that were not so, the government would have a very hard time indicting any murder case in which the defendant is detained pretrial — as most murder defendants are — and the ten-day rule was in play.)

So why not do that? Probably because even more challenging than the crunched time frame is Jared Loughner’s mental state. If he was mentally disturbed to such a great degree that there is a colorable claim of insanity, this would not just argue against the death penalty — we do not execute people who truly are not responsible for their actions. It would also give Loughner a defense against murder. That is, mental incapacity would render the government unable to prove the high mens rea element required in any homicide case.

To be clear, I am not making a judgment that Loughner was insane. From everything I’ve read, I suspect that — although clearly disturbed and probably, as Dr. Charles Krauthammer suggests, a paranoid schizophrenic — Loughner probably meets the low threshold required before a person can be held responsible for murder: essentially, the ability to know right from wrong. But that’s just a guess from up here in the cheap seats. This defendant’s state of mind may be a very close call, and the government will do its best, I’m confident, to get it right before deciding whether to charge murder, let alone capital murder.

Expect this to take several weeks to play out.