If Jared Lee Loughner's defense attorney, Judy Clarke, decides on
an insanity plea, many experts believe it will fail. The burden of
proof that the defense bears in such cases has grown in recent
No sooner had Jared Lee Loughner appeared in federal court on
Jan. 9 to be charged with the attempted assassination a day earlier
of Rep. Gabrielle Giffords in Tucson than speculation began to swirl
about the nature of his defense. Would he plead not guilty by reason
of insanity? And how strong would his case be?
Photographs of the smirking suspect with his head freshly shaved,
reports of his angry and at times incoherent postings on the
Internet, and the accounts of former classmates and longtime friends
all fed the notion that Mr. Loughner was, in layman's terms,
unstable and possibly deeply disturbed.
At the same time, as investigators retraced Loughner's steps
before the shooting - which gravely wounded Ms. Giffords and claimed
the lives of six others -a narrative emerged indicating that the 22
year old had methodically and deliberately planned the attack.
On Wednesday a federal grand jury officially indicted Loughner
for the attempted assassination of Giffords and two of her aides.
Further federal and state charges likely are forthcoming. He has
already been charged with the murder of a federal judge, a capital
As the charges multiply, legal analysts are expecting an extended
spotlight on the issue of the insanity defense, which, they say,
will be extremely difficult to mount successfully.
Loughner's defense attorney is Judy Clarke, who also represented
Unabomber Ted Kaczynski in 1998.
"Judy Clarke is one of the most respected capital defense
attorneys in the country, and the speculation is that she will
likely go for the insanity plea," says Robert Pugsley, professor of
law at Southwestern Law School.
The McNaughton rule
Professor Pugsley and others say they will be watching the
Loughner trial to see whether or not it advances the McNaughton
rule, the longtime standard for insanity in the United States and
Britain. The rule is twofold: Does the accused understand the nature
of his act? And did he know the act was morally wrong?
The rule is named for a 19th-century British defendant who was
acquitted "by reason of insanity." The public backlash to that
verdict prompted a stricter legal test for insanity. The burden was
placed on the defense to prove to the jury that at the time of the
crime, the defendant "was laboring under such a defect of reason,
from disease of the mind, as to not know the nature and quality of
the act he was doing or, if he did know it, that he did not know
what he was doing was wrong."
In the mid-20th century the US standards for determining insanity
were temporarily weakened, especially in the 1950s formulation of
the so-called Durham rule, in which "an accused is not criminally
responsible if his unlawful act was the product of mental disease or
But the burden on the defense to prove an incapacity to know
right from wrong was gradually restored, especially after John
Hinckley was found not guilty by reason of insanity in 1982 for the
attempted assassination of Ronald Reagan.
Amid a strong public backlash, the defense is used in less than 1
percent of all homicide cases and, of those, is successful only 10
to 25 percent of the time, according to Anita Boss, a Virginia-
based forensic psychologist who has testified in scores of insanity
'Nearly impossible to win'
"People are polarized about the insanity defense and it has been
nearly impossible to win these cases for decades," says J. …