Loughner meds mean life or death

Defense strategy: Prevent execution
2011-07-31T00:02:00Z 2014-07-08T17:12:21Z Loughner meds mean life or deathTim Steller Arizona Daily Star Arizona Daily Star
July 31, 2011 12:02 am  • 

Why are Jared Lee Loughner's lawyers fighting so hard to keep him from being drugged with medicines that could relieve his schizophrenia symptoms?

For one, attorneys feel they must defend their client's right to speak for himself when he says he doesn't want drugs. On another point, they say his concern is rational. The drugs can have really bad side effects.

Finally, there is a strategic point: If Loughner is made competent to stand trial, he might eventually be executed, his lawyers argue in court papers.

They filed their most recent and detailed argument on the issue Wednesday at the 9th U.S. Circuit Court of Appeals.

Question of responsibility

Experts on psychiatry and criminal law say cases like Loughner's present a tangled web of competing interests.

"The medical interests of the client are something that matter," said David Siegel, a law professor at the New England School of Law in Boston. "But the defense has to be focused on the client's legal interest."

This case will not be about whether Loughner killed six people and injured 13 on Jan. 8, Siegel and other experts said. It will be about whether he is criminally responsible for those acts, and what sentence he'll receive if convicted.

That is typical of the high-profile cases that Loughner's lead attorney, Judy Clarke, has taken on. In the Susan Smith murder case in South Carolina, the case against the "Unabomber," Ted Kaczynski, and that of the abortion-clinic bomber Eric Rudolph, Clarke was able to help her clients avoid the death penalty despite their murder convictions for notorious crimes.

The conflicts over forcing Loughner to take medication start with their client himself. Psychological experts evaluated Loughner in March and diagnosed him with schizophrenia, a mental illness that often leaves sufferers in their own reality where voices and visions may intrude, a condition known as psychosis.

Loughner scoffed at his diagnosis, U.S. District Judge Larry A. Burns said during the May 25 competency hearing, and he refused to take the anti-psychotic medications recommended to him at the U.S. Medical Center for Federal Prisoners in Springfield, Mo.

But prison doctors said the prescribed anti-psychotic medications are the most productive treatment for people with schizophrenia.

"For some people it's almost magical," said Joel Dvoskin, an assistant professor of psychiatry at the University of Arizona, who oversaw the mental-health system in New York state prisons for 11 years. "They take the medicine and they become sane."

Defense arguments

Still, Loughner's lawyers must take a variety of other interests into consideration, some of them as simple as their client's physical appearance before a judge and jury.

Their first argument is that Loughner has a right to decide whether brain-altering chemicals are put into his body unless a judge holds a hearing and finds it is necessary to restore him to competency to stand trial. In this case, it was Springfield medical officials, not a judge, who decided to forcibly inject him with anti-psychotics in order to reduce his dangerousness within the prison.

But in their Wednesday filing, Loughner's attorneys also point to the bigger issue looming over the case: the death penalty.

"Mr. Loughner has an exceptionally strong interest in not being executed," they wrote. "In short, the forced-medication road taken by the government here is one that potentially leads to Mr. Loughner's death."

In other words, they argue that making Loughner competent may lead to his death by execution, so there ought to at least be a court hearing before he is forced to take medication that might make him competent.

There are other, more nuanced reasons for the defense to resist forced medication, too, experts said. One relates to presenting a convincing insanity defense at trial.

"If they do advance an insanity defense, many lawyers believe that a guy who looks sane in his trial is less likely to be found insane," Dvoskin said.

Treatment

Also, defense attorneys can use the forced-medication issue as leverage, said Dr. Howard Zonana, a professor of psychiatry and adjunct professor of law at Yale University. For example, they could make a deal with the prosecution in which they agree not to fight their client's forced medication if the government promises not to pursue the death penalty.

Loughner's attorneys also argue that prison doctors could have taken intermediate measures to lessen his dangerousness, for example by prescribing minor tranquilizers that would reduce his agitation without treating his psychosis.

By forcing anti-psychotics on him, they argue, they are acting as an arm of the same Justice Department that is prosecuting him while avoiding a court hearing on the issue.

However, medical experts noted, prison doctors are legally obligated to treat inmates' illnesses as best they can and not worry about other issues.

"You wouldn't treat somebody for their legal strategy," Dvoskin said. "You would recommend a treatment that is responsive to their illness."

Forced medication timeline

• June 14: U.S. Medical Center for Federal Prisoners in Springfield, Mo. approves forcing Jared Loughner to take anti-psychotic meds because of his dangerousness.

• June 21: Prison begins administering anti-psychotics to Loughner.

• June 24: Defense files an emergency motion to stop medication.

• June 29: U.S. District Court Judge Larry A. Burns denies the motion.

• July 1: Defense files an emergency motion to the 9th U.S. Circuit Court of Appeals, which orders the forced medication stopped.

• July 12: Judges at the appeals court uphold the July 1 decision.

• July 18: Prison doctors again force the meds, saying Loughner is in immediate danger of hurting himself.

• July 21-22: Defense files a new emergency motion. It is denied.

• Week of Aug. 29: Appeal set to be heard by the 9th Circuit.

Contact reporter Tim Steller at 807-8427 or tsteller@azstarnet.com

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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