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Posted Mar 3, 2011, 6:43 am
Psychological and medical records of Jared Lee Loughner have been improperly given to the FBI by prison officials, his attorneys said in a court filing Wednesday.
Calling the material "privileged medical and psychological data," the alleged Jan. 8 gunman's lawyers asked the court to bar its release to the prosecution.
Defense attorneys said release of the information violates Loughner's Miranda rights and doctor/patient privilege.
Prosecutors have yet to respond to the motion, but have told the defense that they are "pursuing medical and psychological records of Mr. Loughner by lawful means."
Bureau of Prisons staff, including psychologists, have questioned Loughner numerous times, recording his "demeanor, affect, behavior, incoming and outgoing mail, verbal and non-verbal communications, and confidential information about visits with his legal team," Loughner's lawyers said.
Providing the information is a violation of BOP guidelines, said Loughner attorney Ruben Camper Cahn, writing for the defense team:
Immediately after his arrest on January 8, 2011, Jared Loughner told the police that he was "taking the Fifth" and he refused to make any post-arrest statement. On January 10, Mr. Loughner was appointed (undersigned) counsel. At the same hearing, Mr. Loughner was ordered detained pre-trial and has remained in the custody of the BOP ever since.
Despite his stated desire to "take the Fifth," Mr. Loughner has been questioned numerous times by BOP staff, including BOP psychologists. Mr. Loughner's counsel were not consulted beforehand, and are unaware if any confidentiality advisements or Miranda warnings were given prior to questioning. BOP staff prepared reports which contain Mr. Loughner's verbal and non-verbal responses to their questions. The reports also detail his behavior, demeanor, affect, sleeping patterns, eating habits, facial expressions, and other visual observations of him recorded at 15 minute increments 24 hours a day. BOP staff have also carefully memorialized visits with Mr. Loughner by his attorneys and defense team members, to include observations of what took place during some of those visits.
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The motion asked the court of order the return of any privileged material provided to prosecutors, and to bar any future releases.
The purpose of this motion is not to inhibit, or alter in any way, the legitimate procedures employed by the Bureau of Prisons to maintain the safety and security of the facility where Mr. Loughner is housed, or to seek special treatment for Mr. Loughner while he is detained pending trial. The purpose of this motion is to address an ongoing violation by BOP staff of BOP’s own guidelines with respect to the release of non-public information concerning Mr. Loughner, and to prevent the further dissemination of any such information until this Court rules upon the legality of disclosure of the BOP materials at issue, if and when the government moves for production.
A prison staffer sent at least 24 emails containing information on Loughner to the FBI, the motion said.
Loughner, 22, was indicted in the shooting of U.S. Rep. Gabrielle Giffords and two of her aides, Ron Barber and Pamela Simon, in what authorities call an assassination attempt on the congresswoman.
Federal charges in the deaths of Arizona's chief federal judge, John Roll, and Giffords aide Gabriel Zimmerman are expected soon, authorities have said. Charges in the deaths of the two were dismissed earlier for procedural reasons.
Local charges in the deaths of Christina-Taylor Greene, Dorothy Morris, Phyllis Schneck and Dorwan Stoddard, and the wounding of 10 others, will likely be filed when Loughner's federal trial is over.
In a separate motion Wednesday, Loughner's attorneys concurred with a previous move by the prosecution that asked the court to issue a gag order on the Pima County Medical Examiner's Office. Prosecutors have asked that autopsy reports on the six killed not be released to the public.