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Judge: BOP indicates Loughner can be restored to competency

Court to consider adding 4 months to competency treatment

In the wake of a U.S. Bureau of Prisons request to keep Jared Lee Loughner committed for an extended period of time, U.S. District Judge Larry Burns has ordered the scope of a Sept. 21 hearing altered.

Burns said the the BOP has indicated it believes that Loughner can be restored to competency.

The hearing was scheduled to determine whether Loughner was competent to stand trial after Burns declared him unable to participate in his own defense on May 25. Federal law allows for a four-month treatment period before a competency evaluation is made.

Burns received a letter Aug. 16 asking for an extension of the competency treatment period from the warden of the Springfield, Mo., prison facility where Loughner is being treated. He also received a progress report from psychologist Christina Pietz that said Loughner could reach competency to stand trial given more time.

Burns said in an order filed Thursday that "all indications are that the BOP believes the defendant can be restored to competency, and that it simply requires more time to oversee that restoration."

A four-month extension would run through Jan. 26.

Burns expressed concern, shared by the defense, that to warrant an extension there must be a finding based on evidence that Loughner will be restored to competency.

Burns noted that the while Pietz appeared to believe Loughner can be restored to competency with more time, the warden was merely asking for an extension to determine whether he could be.

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By law, the court can only authorize an extension "for the purpose of actual restoration, rather than to assess his restorability," Burns wrote.

"The request must be accompanied by evidence that the defendant's restoration is substantially probable, as well as evidence that an additional four months are necessary to restore him," Burns wrote.

The Sept. 21 hearing will be limited to the question of whether an extension should be granted to "actually restore the defendant to competency," Burns wrote.

Burns asked attorneys to be prepared to discuss whether he should set a Sell hearing, which would determine whether Loughner meets criteria for forced medication to restore competency.

Though the Sept. 21 hearing was to be held in Tucson, Burns said it would be conducted by videoconference from U.S. District Court in San Diego unless attorneys convince him otherwise.

Burns ordered the BOP to submit documentation regarding an extended commitment by Sept. 14.

If Loughner's defense team agrees to an extended commitment, Burns wrote, he will vacate the Sept. 21 hearing and schedule a Sell hearing.

If the defense objects to the extension or length of time requested, Burns will hear their objections on Sept. 21, he wrote.

Loughner, 22, is accused of killing six, including a 9-year-old girl and Arizona's chief federal judge, 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.

A.J. Flick is an experienced criminal justice reporter, author of a book to be published next year on notorious Arizona crimes and a member of the steering committee for the Coalition of Arizonans to Abolish the Death Penalty.

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