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Judge Alters Plan for Test of Loughner’s Competency

TUCSON, Ariz. (CN) - A federal judge said Monday he would appoint an independent examiner to determine Jared Lee Loughner's competency for trial, admitting that he was wrong to initially give Loughner's defense team permission to set up a second exam.

Loughner is accused of killing six people and wounding 13, including Rep. Gabrielle Giffords, at the congresswoman's rally.

"I am prepared to appoint a second examiner myself, and I will appoint a practicing forensic psychiatrist who has no affiliation with, or allegiance to, the Bureau of Prisons," U.S. District Judge Larry Burns wrote in a response to a defense request in the 9th Circuit to return Loughner to Tucson from a U.S. Bureau of Prisons facility in Missouri, where he is currently undergoing a competency exam.

"I made this mistake in an attempt to accommodate the defense's concern, which I explicitly do not share, over the impartiality of Bureau of Prisons staff," Burns wrote. "I therefore propose striking from my original order the allowance that '[d]efense counsel may retain an independent medical expert to conduct a separate mental competency examination of the defendant.' I also propose striking the statement 'The Court exercises its authority under § 4247 to authorize a separate competency examination of the defendant by an independent psychiatrist or psychologist, if requested by defense counsel.'"

Last week Loughner's attorney, Judy Clarke, asked the federal appeals court in San Francisco to order Burns to return Loughner to Tucson. Clarke argued that Burns' March 21 order granting a prosecution motion to send the accused shooter to the Missouri facility imposed "unprecedented limitations on defense investigation and work product [and] amounts to an egregious violation of the Fifth and Sixth Amendment rights to counsel, to present a defense, to be free of compelled self-incrimination, and the guarantee of due process of law."

The circuit court partially granted the stay, but only the portion of Burns' order directing that, in response to a defense request, video recordings of the examinations be provided to both sides.

In his response Monday, Burns wrote that he was "largely indifferent to whether Mr. Loughner's clinical interviews in either court-ordered examination are recorded," but argued that recordings of the examinations would help inform everyone involved as to Loughner's mental state.

"The critical point here is that this independent competency examination is not the defense's examination to orchestrate, oversee, or have privileged access to," Burns wrote (emphasis in original). "Thus, requiring disclosure of the independent examiner's report to the government is neither unconstitutional, nor, as the defense alleges, 'an extraordinary intrusion into defense work product.'"

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