SAN FRANCISCO (CN) - Possible side effects of medication intended to make the Tucson shooting suspect competent to stand trial may threaten his chances of a fair one, Jared Loughner's defense attorney argued before the 9th Circuit on Tuesday.
The psychotropic drugs that doctors say will restore Loughner to competency could have an adverse zombifying effect, rendering the suspect unable to assist in his defense and "prohibit him from being able to express himself appropriately at trial," attorney Ellis Johnston told a three-judge appellate panel.
Loughner is accused of killing six and wounding 13 others, including U.S. Rep. Gabrielle Giffords who was shot in the head, at a meet-and-greet for the congresswoman outside a Tuscon Safeway in January.
A federal judge ruled on Sept. 30 that Loughner must spend four more months at a prison medical center in Springfield, Mo., where he is being forcibly medicated.
At an appellate hearing Wednesday on that order, Assistant U.S. Attorney Christina Cabanillas said the drugs are meant to prevent the 23-year-old suspect from lapsing into a dangerous psychosis that could cause him to harm himself, as he has allegedly threatened in the past. The drugs are not meant to make Loughner competent for trial, she added. "If medication is stopped, he is sure to go back to how he was before." she said. "The prison is entitled to medicate him if he's a danger to himself."
Johnston countered, however, that Loughner's schizophrenia has nothing to do with his pacing, refusal of food, self-imposed sleep deprivation or telling staff that he wanted to die.
The judges seemed to be in agreement that Loughner needs medication to stand trial. "Everyone agrees ... the way you restore someone to competency is to medicate them," Circuit Judge Marsha Berzon said, questioning Johnston's earlier acknowledgement that Loughner needed medication. "If you said there's no doubt he has to be medicated, why are we having another hearing?"
Circuit Judge Jay S. Bybee asked Johnston: "Are you suggesting he isn't a danger because of his schizophrenia? The medication may be maintaining him."
Johnston pointed to the Sept. 28 testimony of prison psychologist Dr. Christina Pietz, saying, "Dr. Pietz has testified that the source of the danger is his depression, not schizophrenia."
Senior Circuit Judge J. Clifford Wallace asked Johnston why the court shouldn't wait four months before addressing the issue of the drugs' side effects. "It seems to me he's going to get a better trial if we have the facts to show," Wallace said. "Suppose we go four months. Why wouldn't the due process argument be deal with then, when you have the facts?"
Johnston replied that the U.S. Supreme Court has determined, "you can't take an individual to trial where there [are] side effects that could affect a fair trial."
Wallace asked Cabanillas whether the prosecution would drop its case if the drugs restored his competency but made him unable to assist his attorneys. "Is it the government's position that if he is competent to go to trial but because of the side effects he cannot assist his attorneys in the trial, then would the government be in the position not to try him?"
Cabanillas replied: "I'll have to make sure I check the law on that very carefully."
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