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Posted Jul 5, 2011, 9:44 am
Jared Loughner can't be forced to take anti-psychotic medication - at least for the moment.
The Ninth Circuit Court of Appeals granted a temporary stay after attorneys for the accused Jan. 8 gunman appealed an order by U.S. District Judge Larry Burns.
The brief order, which was filed late Friday, calls for prosecutors to file a reply by 5 p.m. Tuesday, and defense attorneys to answer by Wednesday.
Burns ruled last Wednesday that prison officials can force Loughner to take anti-psychotic drugs if they have determined he is a danger to himself or others in an administrative hearing.
Loughner's attorneys maintained that he can only be forcibly medicated after a court hearing.
In an emergency hearing held in San Diego, U.S. District Judge Larry Burns said he did not want to second guess doctors at the federal prison hospital in Springfield, Mo., where Loughner is being held.
"I have no reason to disagree with the doctors here," Burns said Wednesday. "They labor in this vineyard every day."
Loughner's attorneys filed a motion last week asking the court to overrule the prison administration's decision to force Loughner to take anti-psychotic medication.
Loughner was first forced to take psych meds on June 22, the defendant's lawyers told the court. He refused to voluntarily take drugs meant to restore him to competency to stand trial.
Prosecutors said Wednesday that Loughner was determined to be a danger to himself and others by prison officials.
"This is a person who is a ticking time bomb," prosecutor Wallace Kleindienst told Burns.
Progress notes written by prison officials said that Loughner remains a danger, and that he does not accept that U.S. Rep. Gabrielle Giffords survived the Jan. 8 shooting.
Prison officials decided to forcibly medicate Loughner at a June 14 administrative hearing. His attorneys were not involved in that hearing, although he did have a "staff representative," authorities said.
Loughner did not participate in that hearing, instead barricading himself behind his bed in his cell, where the hearing wasa held, according to court documents.
Prosecutors pointed to several incidents that they said justified drugging Loughner by force. On April 4, he spit and lunged at his own attorney, Judy Clarke; on March 14 he said "Fuck you" and threw a plastic chair four times, hitting a screen behind which a mental health expert sat; threw sodden toilet paper at a camera; and threw chairs in his cell on May 28.
In a June 24 motion, lead defense attorney Clarke argued that the prison could use milder methods than anti-psychotic medication to control Loughner's alleged dangerous behavior. She also argued that the government's use of an administrative hearing was an "end run" to avoid court review of forced medication.
The move was "an end run around the right to a judicial determination of whether an incompetent defendant can be involuntarily and forcibly medicated to restore competency to stand trial," Loughner's attorneys said.
Defense lawyers have argued in court papers that psychotropic drugs can affect a defendant's judgment and testimony.
The judge had twice before blocked defense motions that they be notified before Loughner is given medications.
Defendants who refuse to voluntarily take medication while authorities try to restore them to competency can be forced to do so after a court hearing, a 2003 Supreme Court decision said.
In Loughner's case, that court hearing was not held. Instead, prison officials held an administrative hearing, without Loughner's lawyers, and determined that he is a danger to himself and others. That route to forced drugging is valid according to a different court case.
Burns ruled last month that the second procedure for determining forced medication doesn't afford a defendant the right to a court hearing or legal representation.
Although they have not said they will present an insanity defense, Loughner's attorneys have indicated that his mental state will figure into their case. They have called their client "gravely mentally ill" in court documents.
Burns on Wednesday blocked the release of detailed medical records relating to the Justice Department's attempts to restore Loughner to competency.
The hearing was held in San Diego, where Burns is based. The judge was appointed to hear the case after all federal judges in Arizona recused themselves because one of those killed Jan. 8 was the state's presiding federal judge.
6 killed, 13 wounded
Loughner, 22, is accused of killing six, including a nine-year-old girl, and shooting U.S. Rep. Gabrielle Giffords in the head in what authorities charge was an assassination attempt.
He also is charged with wounding 12 others at the "Congress On Your Corner" meet and greet with constituents at a Northwest Side grocery store on the morning of Jan. 8.
He was found incompetent to stand trial last month, and was sent to a federal facility in Missouri for treatment to restore his ability to understand the charges against him and participate in his defense.
In March, Loughner was charged with 49 federal counts in the attack. Not guilty pleas were entered on his behalf by the court.
Fourteen of the charges Loughner faces could result in the death penalty, if the prosecution seeks it. No decision of whether to ask for capital punishment has been made, authorities have said.
Loughner likely will face local charges in the shooting incident, authorities have said, but only after the federal case is resolved.
Giffords made a surprise public appearance at a NASA event last week, where her husband, Navy Capt. Mark Kelly, was being honored. The astronaut has announced that he would retire from the military, and that he isn't interested in running for the seat held by retiring U.S. Sen. Jon Kyl. The couple have a book deal in the works, he said.
The congresswoman made a weekend trip back to Tucson for Father's Day. She has not made an official public appearance, spoken to constituents, or released a statement in her own name since the shooting.
Nearly six months after she was shot through the brain, Giffords struggles to communicate, an aide told a columnist for the Arizona Republic.
Giffords searches for words and has trouble putting sentences together, said the congresswoman's chief of staff, Pia Carusone, in a piece by E.J. Montini earlier this month.
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Speaking directly about Giffords' condition and when she might make a public appearance for the first time since the Jan. 8 shooting that claimed the lives of six others, Carusone said Giffords' "communication skills have been impacted the most."
"If you think of it as someone who is able to communicate with you clearly, it is easy to test them. You can ask them a series of questions and you can get clear answers back. Where as with Gabby what we've been able to infer and what we believe is that her comprehension is very good. I don't know about percentage-wise or not, but it's close to normal if not normal."
Giffords is relying on expressions and gestures, rather than speaking, to completely convey her thoughts, Carusone said.
"She is borrowing upon other ways of communicating. Her words are back more and more now, but she's still using facial expressions as a way to express. Pointing. Gesturing. Add it all together and she's able to express the basics of what she wants or needs. But when it comes to a bigger and more complex thought that requires words, that's where she's had the trouble."
After an operation on her skull last month, Carusone told reporters that Giffords' speech was improving, and that she understood abstract concepts.
Giffords "understands, if not everything, close to everything" when presented with complex concepts, Carusone said in May. Giffords is "absolutely curious" about current events, she said.
"She understands sarcastic humor," she said. "Her voice sounds very normal, it sounds as it did before the shooting," she said.
"She's able to fluctuate her volume level" and express being light-hearted or serious with the quality of her voice, Carusone said.
"Her speech is getting better with the constant therapy she's doing."
Giffords was shot through the left side of her brain, which controls speech and language, at a "Congress On Your Corner" meet-and-greet with constituents.
Continuing in office
As I reported on her birthday, Giffords' staffers have been relunctant to comment on her plans to continue in office, or run again. Carusone didn't stray much beyond the party line.
"The only firm timetable is the timetable and that is May of 2012, when petitions are due for reelection," Carusone told the Republic. "That's a firm timetable."
"Short of that, we'd love to know today what her life will be, what her quality of life will be, which will determine whether she'll be able to run for office and all sorts of other things involving her life. But we just don't know yet…We're about halfway through the process that is the most important time for recovery. Patients recover for the rest of their lives but it's the first 12 to 14 months that you make the biggest jumps… In the doctors minds it's not even close to when you begin to make the final prognosis for the quality of her life."
While doctors have called Giffords' recovery "miraculous," Carusone said she has a long way to go.
"She's living. She's alive. But if she were to plateau today, and this was as far as she gets, it would not be nearly the quality of life she had before. There's no comparison. All that we can hope for is that she won't plateau today and that she'll keep going and that when she does plateau it will be at a place far away from here."
While some have called upon Giffords to resign her seat, there's been little indication that she will do so any time soon.
Beginning just days after the shooting, others have explored declaring her seat vacant. A state law on vacant offices doesn't apply to federal representatives, and an online petition asking Gov. Jan Brewer to declare a special election has attracted few signatures.
According to the Constitution, members of the House of Representatives can only be forced out of office by a vote by the House. Federal courts have found that states are powerless to set limits on those serving in federal office above those found in the Constitution and federal law.