PRINT PAGEBending the Rules

Written by Roy Black

“Hard cases make bad law” is a tired lifeless legal cliche but it works to describe the Jared Loughner case. Oliver Wendell Holmes, Jr. noted in Northern Securities Co. v. United States: “Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” Exactly the sentiment which drove the plea bargain in the Loughner case.

Loughner pleaded guilty to 19 of the 49 counts against him — the murders of six people and the attempted murders of 13, including Rep. Gabrielle Giffords, U.S. District Judge John M. Roll, Giffords aide Gabe Zimmerman and 9-year-old Christina-Taylor Green.

His deal? He will be sentenced to life imprisonment. Now don’t get me wrong, I am against the death penalty. But this is one of the situations where the right result comes through the wrong methods. If consistency means anything in justice, the deal fashioned for Loughner should signal the end for the death penalty in America. How can we as a society excuse him from the ultimate penalty while others who commit far lesser crimes are executed?

For example on Tuesday, the same day as Loughner’s deal, a 54-year-old man with a low IQ who reportedly couldn’t handle money and sucked his thumb was put to death in Texas for the 1992 murder of a police informant. I know it is Texas and a state rather than federal court, but so what? It is still part of our criminal justice system and death is death no matter how or where imposed.

If they give Loughner a deal like this, how can they seek death against any other defendant? Is his mental condition the difference? Well, if he is insane then he should be declared not guilty by reason of insanity.

Not only does his deal fly in the face of what others receive, they had to bend the rules to get it done. I am sympathetic because his case, like the Unibomber before him, challenge the system. But it is the government who sets the rules for plea bargaining. They always tell us there is no deal as to the sentence. We can’t tie the judge’s hands. The judge has to have full discretion. Not only that, but the rules prohibit the judge from engaging in plea bargaining. Yet the press reported both sides met in chambers prior to the plea. I don’t know what happened there, but I bet they all sought the judge’s imprimatur to their deal.

When it came to taking the plea, the judge made sure it could be done quickly and expediently. “He’s tracking today,” the judge said. “He appears to be able to assist his lawyers. There leaves no question in my mind he understands what’s going on today. The defendant is presently competent,” the judge ruled. “He does have a rational understanding and a factual understanding of the court proceedings. Accordingly, the court deems him competent as of today.” All this is just boilerplate observations made to seal the plea deal with a written record.

Loughner’s case also proves beyond any doubt, as if we needed more proof, that the BOP psychiatric exams are also a fraud. Christina Pietz, a forensic psychologist for the Bureau of Prisons, opined that Loughner has a severe mental illness, “he is one of the worst,” but is nonetheless competent. How about that diagnosis as a thigh slapper!

She stated that Loughner started showing symptoms of depression, and by 2007 and 2008, his friends noticed he was “odd and eccentric.” Classmates at Pima Community College, where he attended, described him as strange and eccentric; professors spoke of his “disorganized thought process,” Dr. Pietz said. “His classmates noted he would yell things out in the classroom. He actually went up to the chalkboard and started writing nonsensical things. He stapled handouts he received as part of his class as part of his answers for his final examination.”

She also found that he might have been having hallucinations and hearing voices, which are typical symptoms of schizophrenia. He asked his parents if they could hear the same voices he had been hearing, she testified. In written answers to her questions, his parents said they were worried he would kill himself. In videos he made, Mr. Loughner said that he felt depressed, and that he had the urge to kill someone.

Just in case anyone was under the misconception that the psychiatric teams in the BOP were honest and unbiased, these statements will disabuse you. Proof once again of the cliche: “We are from the government and are here to help you.”

“Clearly he was becoming more mentally ill. His condition was worsening. He was losing touch with reality and his friends were ostracizing him. His friends didn’t want anything to do with him.”

One last point. This maniac, despite his severe mental illness, was able to lawfully buy large numbers of weapons and bullets. If a person this floridly insane can buy assault weapons, what good are the laws we presently have?

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