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Determining Loughner’s Competency

Jared Loughner, accused killing six people in Tucson and wounding more than a dozen others including Arizona Congresswoman Gabrielle Giffords, has been found too mentally ill to stand trial. A former San Diego federal judge will join us to explain why and what comes next.

We'll talk about the ruling yesterday that found the accused shooter of Arizona Congresswomen Gabrielle Gifford incompetent to stand trial. San Diego Federal Judge Larry Burns who was brought in to preside at the competency hearing, found Jared Loughner was suffering from a major mental illness that left him too delusional to stand trial.


Honorable Leo S. Papas, Ret.

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This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: A former federal judge interprets the ruling on injury Ed Loughner, and the San Diego symphony's centennial success. This is KPBS Midday Edition. It's Thursday, May 26th, I'm Maureen Cavanaugh. On today's show, the business strategies behind the sweet sound of success at the San Diego symphony. And later, some interesting suggestions for the holiday weekend on our weekend preview. 50 up, we talk about the ruling yesterday that found Jared Loughner incompetent to stand trial. He is the man who allegedly opened fire at an event in Tucson killing six people and wounding Arizona congresswoman Gabrielle Giffords. San Diego federal judge, Larry Burns, was brought in to provide at the competence hearing found laugher in was suffering from a major mental illness that left him too delusional to stand trial. Joining us to talk about what goes into a ruling like that, is my guest, retired federal magistrate here in San Diego, Judge Leo Papas. Judge Papas, good afternoon.

PAPAS: Good afternoon, Maureen. Thank you for having me on.

CAVANAUGH: Are competence hearings frequently ordered for defendants in federal court?

PAPAS: They're not uncommon. They happen on a fairly regular basis. And given the volume of cases that the Court in San Diego sees, because it's a border court, and the number of cases that come through the Courts. So it's not uncommon.

CAVANAUGH: What kind of behavior if any would a defendant would have to exhibit in order to get a competence hearing.

PAPAS: It's interesting that you'd ask it in that manner. Typically the process begins by the defense lawyer who obviously has more contact with the Defendant, making an evaluation as to whether or not the defendant needs some form of mental health or other assistance, and comes to the Court in the form of a motion. The government can also do that. And I suspect in this case both sides did that. But typically, the defense would be the one to raise it with the Court. The Court on its own can also raise it, but it typically comes from the defense based upon interaction that the attorney has with his or her client.

CAVANAUGH: And what does it actually mean to be competent to stand trial?

PAPAS: It means that you have to be able to understand the nature and the consequences of the proceedings, the charges against you, and actually effectively assist in your defense, so that you have to be able to interact with your attorney, you're able to understand what's going on and participate effectively in the process.

CAVANAUGH: Does it have anything to do with a defendant's mental state when the crime was committed?

PAPAS: Well, it may or may not. Ultimately it might. But typically it's designed to determine whether they're capable of standing trial, which is a different issue then, whether they were competent at the time of the offense. So it can be a totally different issue.

CAVANAUGH: And is it a different issue than what we all know of as a plea of insanity?

PAPAS: Yes, it is, although they can be intertwined. You might find the competence issue decided at an early stage, or if it's not questioned, you can still have it raised at trial, depending on how the result comes out in terms of the evaluation. But yes, the competence hearing would be an earlier stage of the proceedings, if there's an issue, if the person is determined comp at the point, they can still raise the issue at the time of the trial.

CAVANAUGH: I'm speaking with retired judge Leo Papas, he's a retired federal magistrate here in San Diego. And we're talking the fact that Jared Loughner, who was accused of shooting Arizona Good evening woman Gabrielle Giffords, and killing six people in Susan, was found incompetent to stand trial. And we heard reports, judge Papas, that [CHECK AUDIO] really being dead instead of of course recovering from her wounds right now. He also was removed from the Court for speaking during the proceedings. Do behaviors like that actually influence a judge making a ruling on competence?

PAPAS: I think it depends on the judge, obviously, it depends on what's been said and the manner in which it's being said, but yes, I think that those are the factors. But the more important factors or influences are those that are provided by the psychiatrist or psychologist who evaluates the person at the time -- for purposes of that other had. There are a number of times when people who are very competent have outbursts in court or take positions that appear to be a little bit irrational, but that doesn't mean that they're incompetent.

CAVANAUGH: I understand. Now, before this hearing got under way, presumably Jared Loughner was examined, he had evaluations made. What kind of evaluations do they do?

PAPAS: Well, it's interesting, I know nothing more about the particulars or the specifics of the evaluation other than what I've read in the news accounts. But if I read them correctly, there were two different evaluations. One in Springfield Missouri at the request of the government, which goes back to what I said earlier in that the government is also entitled to ask for an evaluation of a person's competence. And the second was here -- I don't know if it was here in San Diego, it might have been in Arizona, based upon the Court ordered evaluation. And that was more likely a result of either the defense lawyer asking for the evaluation or the Court. And the evaluation is conducted by psychiatrists or psychologists who are competent in the field, obviously, and the normal course under the statutes, the reports that they generate are supposed to be deputy within a very relatively short period of time. In this case, the one in Springfield was I think six weeks long which is an extraordinarily long period of time for an evaluation to be conducted.


PAPAS: And the one in San Diego or the more recent one, the one ordered by the Court, was a number of hours. I don't know if it was weeks, but both of them I think reached the same conclusion. But what they'll do, is they'll go through an evaluation, they'll talk if they can with the person, they'll subject them to psyche logical testing and evaluations and a number of a different variety of kinds of tests, and at the end of that, they'll put a report together, which is submitted to the government, the defense lawyer, and the Court for all three parties toy are view and evaluate, and then there's a hearing held.

CAVANAUGH: And what kinds of mental illnesses can leads to a finding of incompetence.

PAPAS: Wow, that's a good question. It can be a variety of things. It could be schizophrenia, it could be bipolar, it could be -- you name it. Wave the psychologists believe under the circumstances amount to or result in incompetence, that's something they're more capable of determining. But that's the kind of thing you would expect to see.

CAVANAUGH: And I'm just wondering, I'm comparing the two again, the idea of being incompetent to assist injure attorney and to understand the charges being -- you're accused of, that would render you incompetent to stand trial. But if you wanted to make a plea of insanity, what would be the threshold there that you'd have to reach?

PAPAS: Well, that's a different issue. In that case, if the person's competent to stand trial, the argument would be from the defense perspective that they're admitting the offense but they're claiming that at the time of the offense, they were incapable of determining right or wrong or the disease or impairment that they had prevented them from understanding what they were doing or understanding the difference between right and wrong. And the defense is, obviously, the time in question. The competence that Loughner is going through now or the evaluation has to do with his present mental state versus his mental state at the time he's accused of committing the crime.

CAVANAUGH: What happens to a federal defendant like Jared Loughner how that he has been declared incompetent to stand trial at this present moment?

PAPAS: He is -- he has been ordered by judge burns, as I understand it, to be committed to a facility. In this case I think it's Butner north Carolina. It's a psychiatric facility, for four months. And during that time, the doctors will work with him to try to help him regain his competence.


PAPAS: And at the end of that four month period, there will be a report and a hearing before judge burns, I think he already set a hearing sometime in September, at which time there will be an evaluation of his status. If he is determined competent, then the trial will be presumably the schooling for the trial will be set in place. If he's still incompetent at that point in time, then what will happen is judge Burns can, it's within his discretion, to order an additional four month period. And that can be repeated for any reasonable period of time that the judge feeling is appropriate to hopefully have Loughner regain his competence for purposes of trial.

CAVANAUGH: Now, we both know judge Papas, that thereby a lot of medications that psychiatrists can give patients for mental illnesses These Days. If medications can make Jared Loughner able to assist in his own defense, could he be found competent?

PAPAS: Yes. In a word, yes. There is controversy over whether it's appropriate to do that. And there are disputes and issues that can be raised by defense council in that respect whether or not it's appropriate to forcibly require someone to make medication to bring them to competence for purposes of trial. But those are issues that the defense lawyer will harsh out with the government and the Court.

CAVANAUGH: So it's conceivable that he could refuse to take the drugs? Or is that a legal issue?

PAPAS: Well, I think the Court can order that he be required to take the drugs, and then the defense lawyer would have to determine whether, in this case Judy Clark, she'd have to determine whether she would object to that and try to test that in the Courts. The Courts have determined it's appropriate for a judge to order forcible medication to assist someone to become mentally competent. There are people who take pills for schizophrenia and are competent to stand trial, and we've dealt with that in our court in San Diego many times. If they refuse to take the pills, we've got issues to regarding their competence, but the medication can restore their competence and that would permit the case to go forward.

CAVANAUGH: If drugs can't do it, if these evaluations come can out and Jared Loughner, this accused killer and shooter is found incompetent after all sorts of treatment and evaluations, what happens?

PAPAS: Well, that's a very interesting question. Because it's not one that you run into every day. But in this case, what happens is the facility at which Loughner is housed would certify that at some point to the Court -- and of course judge Burns has a lot of discretion as to how long this process can last. And no one can tell you when that would be. But assuming it gets at that end and he's still incompetent, the facility certifies to the Court that he is still a substantial risk of bodily injury to another person or serious damage of other's property, and at that point there's another hearing that's held. And so -- there's another hearing before which the Court orders other evaluations to make sure that that's the case. And then at that hearing, the Court has to find by clear and convincing evidence which is a different standard than the original measure, which is only a preponderance of the evidence, both legal standards. But the Court has to find by clear and convincing evidence that Loughner would be still suffering from a mental disease or defect that would create a substantial risk of bodily injury or property damage. And at that point, the charges would be dismissed, which is an interesting consequence.


PAPAS: But at that point, he would then be subject to civil commitment in the state in which he either domiciled or where the events occurred. So in this case, he, if determined to still be a danger, he would then be taken into custody, so to speak, in a civil capacity in Arizona and be subject to treatment for the same problems that he's been treated for on the federal side. And that's -- he'd be there until he either regains competence or he doesn't.

CAVANAUGH: Wow. Very complicated. I have been speaking with retired federal magistrate here in San Diego, judge Leo Papas. Thank you so much for explaining as I say a very complicated legal conundrum. Thank you.

PAPAS: You're quite welcome, thanks for having me.

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