Giffords shooting: No double jeopardy for Arizona gunman

By Professor Laurie Levenson

There has been much speculation over what charges Jared Loughner will face for his tragic shooting of 20 victims in Tucson on Jan. 8, 2011. So far, the federal authorities have filed only three charges for the attempted assassination of Rep. Gabrielle Giffords and attempted murder of her two aides. Loughner currently faces a life sentence and multiple 20-year sentences on these charges.

However, the big question is what additional charges the federal authorities will bring and whether both the Department of Justice and Arizona state authorities will seek the death penalty. It is good that the DOJ is taking time to sort this out. Federal authorities have limited jurisdiction to charge murder cases. Pursuant to 18 U.S.C. § 1114: "Whoever kills or attempts to kill any officer or employee of the United States ... while such officer or employee is engaged in or on account of the performance of official duties ..." is guilty of murder. There is an open question whether United States District Judge John Roll was engaged in his official duties when he dropped by the town hall to talk with Rep. Giffords.

Moreover, given Loughner's apparent mental problems, prosecutors will have to sort out whether he meets the criteria for seeking capital punishment. Mentally unstable defendants are nothing new to the federal courts. Not so long ago, Bufford Furrow, another disturbed individual filled with hate, shot up a Jewish Community Center in Los Angeles. Ultimately, he pled guilty to avoid the death penalty. In order to decide whether to seek the death penalty, federal authorities need to know a lot more than who pulled the trigger.

The Arizona state authorities will have a separate opportunity to charge and try Loughner. Unlike in California, where the state double jeopardy laws prohibit retrial after a federal trial, Arizona has held that its double jeopardy clause does not provide broader protection than the federal double jeopardy clause. A.R.S. Const. Art. 2 § 10; State v. Cook, 185 Ariz. 358, 916 P.2d 1074 (App. Div. 1 1995). Under the federal double jeopardy clause, each sovereign has the right to try a defendant for his offenses. Abbate v. United States, 359 U.S. 187, 196 (1959); Bartkus v. Illinois, 359 U.S. 121, 128-29 (1959). Therefore, Loughner could be tried and punished in state court for the same offenses for which he is prosecuted in federal court.

In the end, logistics may end up driving the charging decisions. Both the federal authorities and state authorities will be looking to use the same evidence obtained in the investigation. Witnesses cannot be in different places at the same time. There is no statutory time pressure on the Arizona authorities to bring charges. Like the state prosecutors in the Oklahoma City Bombing case, they can wait to see how the federal authorities develop the case and then proceed when they are finished. Sometimes, the best strategy is to wait and see.