A status hearing on Loughner's competency is set for August 7, having been continued from June. In prior reports, the experts said they believed Loughner was incompetent, but that with continued forced psychotropic medication, he could become competent, possibly within 8 months.

The status hearing was rescheduled from June to August 7, because both parties stated "more time was needed." The commitment period (each one lasts 120 days and they can be renewed)ended June 7. The findings apparently are now in, since last week, pleadings were filed over disclosure of the BOP psychologist's notes from this last commitment period ending June 7. The defense expressed its concern that the Government might use the notes in deciding whether to seek the death penalty. (The Court ordered disclosure.) This suggests to me the court-appointed expert has found the forced medication has been successful at restoring Loughner to competency to stand trial.

Once declared competent, the Government would be in a position to file a notice of intent to seek the death penalty. Even though some victims did not want the death penalty, the final decision is up to the Justice Department. Thus, the time is now ripe for serious plea negotiations.

There has been a lot of litigation over Jared Loughner's forced medication. The 9th Circuit has put the appeals pleadings and orders online here. In March, the 9th Circuit denied several appeals in a single 117 page opinion. The first few pages of the opinion explain the factual history of the competency and forced medication issues.

In April, the defense filed this Petition for Rehearing, which I think does a better job of explaining the extent of the forced medication and the legal issues surrounding it, which are made more complex when there are multiple purposes for the forced medication, such as restoration to competency vs. preventing dangerousness to others or self, and different standards for pre-trial detainees vs. convicted defendants:

Most notably, the prison has now increased the dosage of risperidone to 9 mg per day, an amount that substantially increases the likelihood of inducing significant physiological side effects, and a dose which exceeds the normal adult dosage range. This fact is particularly important because it shows that these increases in risperidone are meant to inch Mr. Loughner closer to trial competency, not to alleviate his suicidal depression or otherwise palliate suffering.

In June, the 9th Circuit denied the defense's petition for rehearing on the appeals cases. From the accounts in the 9th Circuit opinion, including the dissent, and the Petition for Rehearing, it seems Loughner has been turned from a crazed schizophrenic dangerous to others, to a catatonic shell of himself, still suffering from major depression. (His condition improved slightly with medication, then drastically deteriorated when the defense got an order against it, resulting in the reinstatement of forced medication, at even higher levels.)

With no end in sight to the forcible medication of Loughner, due to BOP deeming it necessary to prevent him from being a danger to others and himself, and revised expert opinion that he is now competent, the likelihood of his prevailing at a trial on an insanity defense is diminished. Coupled with the anticipated filing of a notice of intent to seek the death penalty, Loughner's life, not just his freedom, is on the line.

In dissenting from the appeals court majority opinion, Judge Berzon explains the tension between forced medication for restoration to competency and to prevent dangerousness, as it pertains to due process and other rights of a defendant:

[T]he side-effects associated with psychotropic medication may severely prejudice a defendant’s right to receive a fair trial. Here, for example, Dr. Pietz testified that Loughner has developed a flat, emotionless aspect since resuming psychotropic medication. The district court further observed that Loughner “did appear to be tired” at the commitment proceeding and “did appear to close his eyes from time to time today and maybe a little sleepy or nod off.” This “sedation-like effect” may result in “serious prejudice” during trial proceedings “if medication inhibits [Loughner’s] capacity to react andenia (which is being treated with risperidone)respond to the proceedings and to demonstrate remorse or compassion.” Riggins, 504 U.S. at 143-44 (Kennedy, J., concurring in the judgment).

“The tendency of psychotropic medication to flatten or deaden emotional responses” could prove particularly damaging if the government seeks the death penalty, as it very well might in this case, because “the jury would then be especially sensitive to Loughner’s] character and any demonstrations of remorse (or lack thereof).” Weston, 206 F.3d at 20 (Tatel, J., concurring).

Even the intended effects of psychotropic drugs may infringe Loughner’s fair trial rights. Assuming Loughner will put on an insanity defense, manifestations in court of how his mind works may well be his own best evidence. Because psychotropic medication chemically alters the brain, it “deprives the jury of the opportunity to observe the defendant in the delusional state he was in at the time of the crime.” Id. at 21 (Tatel, J., concurring). The government’s decision to restore Loughner’s trial competency may therefore prevent him from putting on his chosen defense, by altering the material evidence for that defense See Riggins, 504 U.S. at 139, 142 (Kennedy, J., concurring in the judgment). Thus, both the intended and unintended effects of psychotropic medication can conceivably deprive a criminal defendant of his right to a fair trial.

There is no point in restoring a defendant’s trial competency, through commitment to a medical facility and involuntary administration of psychotropic medication, if the means necessary to effect restoration will so infringe the defendant’s fair trial rights as to render the trial itself unconstitutional.

In Judge Berzon's view:

Pretrial commitment for restoration of competency will likely not “permit the [trial] proceedings to go forward” if Loughner can only be restored through means likely to render any resulting trial unfair. So the district court may only commit Loughner for restoration of trial competency if it concludes that the psychotropic means through which his restoration is to be accomplished are substantially unlikely to infringe his fair trial rights.

He disagreed with the Bybee's opinion for the majority which held the court need not inquire into the effect of involuntary medication on the right to a fair trial:

[T]he majority holds that the district court was not required to determine prospectively whether the pharmacological means used to effect Loughner’s restoration will infringe his right to a fair trial.

Judge Berzon concludes:

In short, I would hold that a district court asked to commit a pretrial detainee for the purpose of restoring his trial competency through involuntary medication must itself determine whether involuntary medication is justified. In doing so, it should first consider, as in Sell, whether the medication is justified on grounds of dangerousness to self or others. If the court concludes that involuntary medication is justified, it may then proceed to determine whether involuntary medication is likely to restore the detainee’s capacity to such a point that trial may proceed. But I would require the court to determine, as part of that inquiry, whether the contemplated treatment is substantially unlikely to infringe the detainee’s fair trial rights.

I cannot agree with the majority’s conclusion that the district court could authorize Loughner’s commitment under § 4241(d)(2)(A) on the bare determination that the medication he is currently receiving is likely to restore his purely cognitive trial competency, meaning the ability to appreciate the course of the proceedings and confer with counsel, with no consideration of either the medication’s propriety or its potential effect on his fair trial rights.

But Judge Berzon's view did not prevail. What I take from all this in plain English is that the 9th Circuit has significantly reduced the possibility of a successful insanity defense because the jury is unlikely to perceive a semi-catatonic Loughner as insane. If he's found guilty, rather than not guilty by reason of insanity, he could be executed. Thus, it's time to plead guilty and ensure he is not executed.

(Note: It's not for certain the federal government would file for the death penalty as some victims apparently don't want it, but they could, and it would still be an option for Arizona prosecutors in a subsequent state prosecution.)

Will the judge accept the finding of competency and agree his guilty plea is "knowing and voluntary" with a full understanding of the charges and possible penalties, and the legal rights he is relinquishing by pleading guilty? My guess is yes, since defense attorneys confirm to the court at the guilty plea hearing that they have fully advised their client and that the client understands. Here's an example from an Arizona federal plea agreement in June, 2012.

In Feburary, 2011, the New York Times wrote this profile of Judy Clarke in the context of her representation of Jared Loughner.