May 25, 2011 -- Is Jared Lee Loughner sane enough to assist in his own defense? That's the question a federal judge will consider today, and the answer could decide whether Loughner has to stand trial for the shooting rampage January 8 in Tucson, Ariz.
The shooting left six dead, and wounded 13 others, including Congresswoman Gabrielle Giffords, D-Ariz. Those killed on that cold, January morning include 9-year-old Christina Taylor Green and U.S. District Judge John Roll. Loughner was tackled and disarmed at the scene by bystanders, and since has been charged in a 49-count, federal indictment.
The question of Loughner's mental health has been a subject of speculation since the shootings. Even before January 8, Loughner's troubled mental state was noticed by former friends and classmates, as well as by the police at Pima Community College, where he was a student. His mug shot pose features shining eyes and an eerie smile beneath his shaved head. But his bizarre behavior in class and pro-violence postings on the Internet will have no bearing on whether he will stand trial.
The legal question for Judge Larry Burns is straightforward: can Loughner understand the proceedings against him, and can he assist in his own defense? Loughner could face the death penalty if he goes to trial, and the judge must determine whether Loughner understands that.
In deciding on Loughner's competency, Burns will rely on the opinions of two mental health professionals who have evaluated Loughner, and sent sealed opinions to the court. The judge could decide from the bench at today's hearing, or take the matter under consideration. If he finds Loughner competent, preparations for his trial would move forward. If he is found incompetent, however, it doesn't mean he will not stand trial eventually.
"If the judge decides he is incompetent to stand trial, the parties could agree to a commitment until he is competent," said attorney Joseph di Genova, a former U.S. Attorney with experience in insanity defense cases.
di Genova says much will depend on Loughner's diagnosis – on precisely what the psychiatric evaluations say about his mental state.
"The doctor's will likely tell the court whether or not Loughner will be able to obtain competency with treatment, and how long that would likely take," di Genova told ABC News. "Then a treatment plan would be put in place." di Genova said, "unless he is psychotic or delusional to the point that he can never be made competent," the government would likely push to keep the possibility of trial open.
In court filings Monday, prosecutors and the defense team didn't dispute the findings of two psychiatrists who examined Loughner, and declined to question the experts at today's hearing. That has led to some speculation that the expert's have found Loughner incompetent to stand trial – the defense would not object to a finding of incompetence because it would delay a trial.
di Genova, who supervised the government's efforts to keep would-be presidential assassin John Hinkley in jail after he used an insanity defense, said the court will probably want to revisit Loughner's mental health status in 60 to 90 days. Loughner has been in custody since being arrested at the scene of the shooting.