In addition to a charge of attempting to assassinate Rep. Gabrielle Giffords (D-Ariz.) at her January 8 outreach event in a Tucson Safeway parking lot, Loughner also faces murder charges for allegedly killing Gabriel Zimmerman and U.S. District Judge John Roll at the same event.
The edgier charges are those the feds used to bring the deaths and injuries to non-federal employees into the federal case. The indictment includes five counts of "causing death to participants in a federally provided activity"--one for Roll and four for civilians, including nine year old Christina-Taylor Green. In addition, Loughner faces ten counts of "injuring participants in a federally provided activity."
"The Justice Department’s strategy in the Loughner case is legally suspect (to say the least) and tactically foolish," former federal terrorism prosecutor Andy McCarthy wrote this afternoon on National Review Online shortly after I queried him about the issue. He says prosecutors could have trouble proving that Loughner, whose mental state seems to have been shaky to say the least, went to the event and targeted the civilian victims because of their attendance at the Loughner event. McCarthy also questions whether a Congresswoman's meet and greet in a parking lot is the kind of activity that extends jurisdiction over anything that happens there.
"That’s a stretch. If DOJ’s theory is sound, the question becomes: is there any activity that cannot be spun as federally protected — especially given Leviathan’s ever expanding girth? If I am out enjoying a beautiful day when I get robbed, can it be said that my assailant intended to frustrate my enjoyment of the Clean Air Act? What Justice is doing here will be seen as a dramatic federal intrusion into the realm of state law enforcement," McCarthy wrote.
"They are playing with fire here," McCarthy added provocatively. "If I’m Loughner’s lawyer tonight, I’m thinking: we’ve got a real shot here."
Another former prosecutor I talked to, ex-U.S. Attorney for D.C. Roscoe Howard Jr., also called the edgier new charges a stretch, though he wasn't as critical as McCarthy.
"My guess is it may not be a good fit," Howard said, while cautioning that he was not familiar with the details of the indictment. "Ordinarily, you look for some federal touchstone. I don't think necessarily it's a bad stretch [but] in a general sense, you will see the federal government getting involved in something like this ordinarily when there’s been a miss by the state."
Howard noted that if the shooting took place at Giffords's office, there would be obvious federal jurisdiction. "As you move further away, it gets more complicated," he said.
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