‘Master Strategist’ Judy Clarke appointed to Tucson Shooting Case

Jared Lee Loughner cut a fearsome figure as he made his first court appearance on Monday. Those present were struck by the bruising to his left eye and a raised lump on his head. Manacled by a chain around his waist and wrists, the 22-year-old shuffled nervously into the US District Court in Phoenix. His nerves are understandable, given the severity of the proposed penalty.

Loughner is accused of having opened fire during Saturday’s ‘town-hall style’ meeting at a supermarket in Tucson, Arizona. It is thought that this was an attempt to assassinate congresswoman Gabrielle Giffords. The defendant is charged with having killed six people and wounded 14 others. Amongst those seriously injured are the Democratic congresswoman and two of her aides. If he is found guilty of these crimes, Loughner could face the death penalty.

That the death penalty remains available as a criminal sanction is highly controversial in itself. Arizona is one of the 34 U.S. states which still permit executions, although this number is steadily declining. Regardless of the horrific nature of his alleged crimes, Loughner has potentially found himself in a desperate position. Many defence lawyers would balk at taking on such a case. Enter Judy Clarke.

Ms Clarke is a tenacious capital defence lawyer, well known for her success in high stakes litigation. The New York Times described her as “perhaps the best known federal public defender, with a reputation for taking on cases which seem impossible.” She ought to thrive on this one then. Judy Clarke is opposed to capital punishment. She has gained a reputation for securing life sentences where the death penalty has been threatened. This could be very good news for Loughner.

Judy Clarke’s previous successes have included the Unabomber, Theodore J Kaczynski, and Susan Smith who was found guilty of drowning her toddlers. As such she has not always enjoyed public popularity. Certain quarters are already braying for Loughner’s life. It is for Ms Clarke to urge the judge to resist such emotional exhortations and adopt a more humane approach. Described by her peers as a “master strategist in death-penalty cases”, Clarke is a formidable opponent in the courtroom. Whether she will add Mr Loughner to her list of ‘lives saved’ remains to be seen.

Ms Clarke’s appointment in this case is somewhat controversial. Her legal practice is based in San Diego, California. This means she was appointed from a different state, and ordinarily operates under a different jurisdiction. This provoked outcry in the aforementioned case of Susan Smith. So appalled were the South Carolina legislature that they enacted a law disallowing the appointment of capital-defence public defenders from other states. Ms Clarke’s response showed an admirable commitment to her values. She returned her fee to the state of South Carolina to finance legal representation for other defendants.

No such action has been taken in Mr Loughner’s case. Indeed the judges of the Tucson division have recused themselves from taking part. This has been attributed to the “intensity of local feeling”. Mr Loughner was required to sign a financial affidavit proving that he could not afford legal representation independently. At the request of the defence this document has legally been concealed from the public. The appointment of such an acclaimed defender at public expense is likely to be unpopular.

No one would seek to deny the gravity of these crimes. It is remarkable that Ms Giffords was not killed when she received the bullet wound to her head. In that respect she has been ‘lucky’. It has just been reported that she can now breathe independently. She is being cared for by US military doctors, who have been called from Afghanistan to attend to her injuries.

There is a degree of confusion as to what incentive Loughner could have had. A signed note was found at Loughner’s residence which implies that the shooting was premeditated. It seems logical to suppose that such an attempted assassination would have been politically motivated.

The Washington Post has revealed, however, that Loughner was registered as an independent in 2006. He did not vote in 2010. He does not appear to have espoused a fixed political ideology. Nonetheless, he has been branded as a disciple of both political extremes. Mr Loughner has not yet offered any personal explanation of his views. He is thought to be mentally unstable. This seems plausible. Such an argument is likely to be pivotal in the proceedings.

For now, Mr Loughner has been detained pending a further order by the Phoenix district court. Wallace H. Kleindiest, the federal prosecutor, justified this detention on the grounds that Loughner was a “danger to the community and a risk of flight given the severity of the penalties.” Loughner has already demonstrated his unwillingness to co-operate with the authorities, so such “flight” is indeed conceivable.

Whatever the outcome of this case, it will be both legally and politically significant. The court’s ban on cameras and recording equipment will not stop the global media from reporting with alacrity. Jared Lee Loughner will have to hold his nerve a little while longer.

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