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Three Loughner appeals rejected; medication, treatment to continue

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A divided federal court Monday rejected a string of appeals from Jared Lee Loughner and said prison officials could continue to medicate and treat him in an effort to restore him to mental competency.

Loughner, accused in the January 2011 shooting spree that killed six people and wounded 13, including former Rep. Gabrielle Giffords, was ruled incompetent to stand trial and has been undergoing treatment since last spring.

That treatment has included forced medication and extended hospital commitments, actions that led to a flurry of objections from Loughner’s attorneys over the past year. They argued that the medication violates Loughner’s due process rights and could impair his ability to defend himself, should he come to trial.

But U.S. District Judge Larry Burns has rejected most of those claims, saying that doctors treating Loughner determined he was dangerous without medication and that the decision is properly theirs.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals agreed Monday, rolling several months worth of appeals into one decision that upheld Burns.

Calls to Loughner’s attorneys were not returned Monday.

The defense could ask the full court to reconsider the panel’s decision or could appeal to the Supreme Court, said Assistant U.S. Attorney Wallace Kleindienst, the lead prosecutor in the case.

“Obviously we’re pleased with the result of the majority of the panel and believe that the majority arrived at a correct application and interpretation of the law,” Kleindienst said.

Two of the three judges on the panel ruled that Burns applied the proper standard when determining whether Loughner should be involuntarily medicated.

The court noted that when Loughner was briefly taken off his medications last year, after his attorneys challenged the treatment, he became suicidal and agitated, crying, pacing, not sleeping and not eating.

At that point, doctors at the federal prison in Springfield, Mo., determined that Loughner was a danger to himself and others and ordered him back on medications. Burns has upheld that decision in a subsequent series of rulings, and the appeals court supported the lower court.

“Three . . . hearings all reached the same conclusion: Loughner is a danger and needs to be medicated,” the appeals court said.

The court also said that Burns was correct to order Loughner’s continued treatment on the strength of his psychiatrist’s belief that he was making substantial progress and could be restored to competency with more treatment.

“The district court considered proper evidence before it and did not clearly err in determining that there was a substantial probability that Loughner would be restored to competency within four months,” the appellate judges said.

The district court has extended Loughner’s treatment several times, most recently until June 7.

But in a dissenting opinion, Judge Marsha Berzon said the court should require a separate hearing on whether Loughner can continue to be treated. It has moved beyond a question of dangerousness now, she said, and is approaching the concerns raised by his attorneys.

Bringing Loughner to competency through medication and hospitalization serves no purpose, Berzon wrote, if “restoration will so infringe the defendant’s fair trial rights as to render the trial itself unconstitutional.”

She also raised concerns about a fair trial if Loughner’s medication has a “sedation-like effect,” flattening emotional responses and working against him in a death-penalty case. Besides influencing jurors, it could interfere with his ability to help in his defense, she wrote.

“Assuming Loughner will put on an insanity defense, manifestations in court of how his mind works may well be his own best evidence,” she wrote. “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.’”

But the other judges said concerns about the effect of medications on Loughner’s trial defense are “premature” at this point.

“As the district court recognized, Loughner will have a full and fair opportunity to raise his concerns before he goes to trial,” it said.