Even if a federal judge finds Jared Lee Loughner incompetent to stand trial after a hearing this week, it's likely Loughner willl end up facing the charges against him in court eventually.
Having serious mental illness alone is not enough to make a defendant incompetent to face charges. And if a defendant is at first found incompetent, he can spend months or even years in government mental-health facilities as doctors work to restore him to competence.
That's especially true in high-profile cases like Loughner's, attorneys and psychological experts said. Loughner, whose competency hearing is scheduled for U.S. District Court in Tucson Wednesday, showed signs of psychological breaks from reality in the years before the Jan. 8 shooting spree. But that likely will not stand in the way of a trial.
"The vast majority of psychotic defendants are restored" to competence, said Mary Alice Conroy, a psychology professor at Sam Houston State University in Huntsville, Texas, who for years worked as a forensic psychologist in the federal prison system. "About 90 percent of the defendants who are incompetent are restored to competency."
Notorious recent cases have shown that to be true in Tucson. David "Nick" Delich is scheduled to face trial in the 2008 killing of Tucson police Officer Erik Hite, although Delich showed strong signs of psychosis at the time of the shooting and was declared incompetent in April 2010.
At the time of the killings, Delich told detectives he was in mental communication with a porn star and started shooting at a neighbor's house because he believed they were involved with torturing her and would attack him soon. It took about 10 months of Delich taking anti-psychotic medication before defense attorneys started to see improvement in his condition, they said.
In January, Pima County Superior Court Judge John Leonardo ruled Delich competent to stand trial.
Loughner's bizarre behavior at Pima Community College escalated last year until September, when officials saw a video he made on campus, saying students were being tortured there and declaring "This is my genocide school." That's when the college suspended him and kicked him off campus.
As bizarre as Loughner's behavior was, it wouldn't mean he's incompetent to stand trial. Loughner is charged with 49 crimes in the Jan. 8 shootings that killed 6 Tucsonans and wounded 13, including U.S. Rep. Gabrielle Giffords. He has pleaded not guilty.
"You can be seriously mentally ill and still understand the process and still be able to assist your attorney," said Tucson defense attorney Sean Chapman, who for years was a federal prosecutor.
When inmates are evaluated to see if they are competent to stand trial, those are the two main criteria, established in a 1960 U.S. Supreme Court case.
• Can the defendant understand the court proceedings and charges against him?
• Can the defendant help his lawyers in the defense case?
In the federal justice system, answering those questions takes an intense effort over about a month.
Conroy evaluated many defendants when she worked at the Medical Center for Federal Prisoners in Springfield, Mo. She would ask for as many medical records as possible and interview the defendant two or three times, avoiding asking about the crimes the defendant were accused of. Sometimes, psychological testing was done, she said. In addition, the defendant's behavior in the facility was observed and recorded for the evaluator.
After all that, Conroy said, she would write a report offering her opinion as to whether the defendant was competent to stand trial. That's the process psychologist Christina Pietz and psychiatrist Matthew Carroll carried out after Loughner was sent to Springfield in March to be evaluated.
Last week, prosecutors and defense attorneys agreed they didn't need to have Pietz or Carroll testify at this week's hearing because they could rely on the written reports. Evaluators usually don't testify, experts agreed, but that agreement may suggest Pietz and Carroll agreed on whether Loughner is competent to stand trial.
"It's rare for evaluators to be called to testify if they came to the same conclusion," Conroy said.
If Loughner is found incompetent, he'll likely be sent to a federal mental-health facility for treatment. Then, every four months, his competency can be tested again until he is able to understand the court proceedings and assist his attorneys.
If Loughner refuses to take needed medications, it's possible the government would ask a judge to force him to be medicated. In that case, prosecutors must pass a series of legal tests, said Heather Williams, an assistant federal public defender in the Tucson office.
Prosecutors would have to show the defendant is accused of a serious crime, that important public interests like the need for security are at stake, that involuntary medication would help serve those interests, and that medication is in the patient's best medical interest.
In a worst-case scenario, Loughner could be found permanently incompetent and charges could be dismissed.
That's what happened last month in the case of Curtis Bunton, who was accused of killing Tucsonan Charles McCain in April 2010. Pima County Superior Court Judge Howard Fell found that a stroke had left Bunton unable to write or speak and therefore unable to assist his attorney.
But that sort of outcome is unlikely in a case like Loughner's, said Joel Dvoskin, an assistant professor of psychiatry at the University of Arizona who oversaw New York state's correctional mental-health system for 11 years.
"Almost never in a serious case would a judge opine from the get-go that a person is permanently incompetent," Dvoskin said. "I would predict in a case of mass homicide that the courts would wait a very long time before agreeing to call somebody permanently incompetent."
On StarNet: Read the Star's special report on mental health at azstarnet.com/mentalhealth
The U.S. Supreme Court established the standard for competency in its 1960 ruling in the case of Dusky vs. the United States. The court quoted the U.S. solicitor general in deciding that the "test must be whether he (the defendant) has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he has a rational as well as factual understanding of the proceedings against him."
One of the best-known competency evaluations was carried out in 1998 by psychiatrist Dr. Sally Johnson of Ted Kaczynski, the Unabomber, who carried out a 17-year string of attacks on scientists and airlines, killing three people. Johnson went through Kaczynski's voluminous and repetitive writings, including two autobiographies, and the minutiae of Kaczynski's medical history, down to the tonsillectomy he received at age 6. She also interviewed Kaczynski eight times.
At the end of Johnson's thorough life story of Kaczynski, she concluded he was a paranoid schizophrenic, whose delusional symptoms began to flourish in his early 20s and occurred episodically thereafter. She concluded:
"Despite the presence of significant mental illness historically and residual evidence of such problems at the present, Mr. Kaczynski is able to understand the nature and consequences of the proceedings against, and is able to assist his attorneys in his defense. Thus, I view him as competent to stand trial."
Contact reporter Tim Steller at 807-8427 or at firstname.lastname@example.org