The Corner

Federal Charges in the Shootings

The Times has posted the criminal complaint filed by the U.S. attorney’s office in Arizona. It charges two counts of murdering, and three counts of attempting to murder, federal officials. Specifically, Count One alleges the attempted murder of Rep. Gabrielle Giffords; Counts Two and Three allege the murders of legislative aide Gabriel Zimmerman and chief federal judge John M. Roll, respectively; and Counts Four and Five allege the attempted murders of legislative aides Pamela Simon and Ron Barber, respectively.

The criminal complaint is not an indictment. It is a notice to the defense of the basis for the arrest of Jared Lee Loughner and an explanation of the probable cause for those crimes. Ordinarily, the complaint is also grist for a bail hearing, but with charges of this gravity it is inconceivable that Loughner would be granted bail. Federal law permits pretrial detention for an arrestee the court finds to be a danger to the community, a flight risk, or both.

If a defendant is detained pretrial, the government usually seeks an indictment from a grand jury within 10 days of the arrest (excluding weekend days). That is because federal rules otherwise require that prosecutors submit to a preliminary hearing, an adversarial proceeding before a magistrate-judge in which the defense gets to cross-examine witnesses. The Justice Department likes to avoid this, for obvious good reasons.

Federal murder, a charge available when a government official has been killed in the course of performing official duties (see Title 18, U.S. Code, sections 1111 and 1114), is potentially a capital offense. It is up to the Justice Department whether to seek death penalty charges from the grand jury. The maximum penalty for attempted murder under federal law is 20 years’ imprisonment (section 1113).

I would expect that the State of Arizona will also file murder charges in connection with the killings of nine-year-old Christina Green and three other Arizonans, Dorothy Morris (who was 76 years old), Dorwin Stoddard (also 76), and Phyllis Schneck (79). The State may also file murder and attempted murder charges related to the victims whose shootings are the focus of the federal prosecution. Arizona has the death penalty so, again, those could be capital charges.

Two other legal points. First, there is no double jeopardy bar to successive federal and state prosecutions of the same murder. In our system, the United States and Arizona are considered separate sovereigns, and the “dual sovereignty doctrine” is a well established exception to the Fifth Amendment’s proscription against multiple prosecutions for the same offense.

Second, when there has been an attack on a federal judge, it is common for other judges of the same court — in this instance, it would be Arizona’s federal district court — to recuse themselves. A judge from out of the district is appointed to preside over the case. This is not a necessary precaution, but it is a prudent one. That is, a judge is not legally mandated to recuse him- or herself from a case just because he or she knew the victim; and if judges had to recuse themselves over any potential bias, no matter how slight or theoretical, you could then argue that every judge was tainted (i.e., even if the appointed judge from out of district did not know the murdered judge, the appointd judge is still a judge and thus his or her bias might theoretically be called into question, too). Still, recusal and out-of-district appointment is a good practice to follow, especially in a capital case, and I expect it will be followed here. Those who are philosophically opposed to capital punishment are wont to exploit any potential claim of unfairness — I don’t mean that as a dig against opposition to the death penalty, which is perfectly honorable; it’s just a fact about litigation.

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