Case 4:11-cr-00187-LABU Document 286 Filed 08/22/11 Page 1 of 6

1 DENNIS K. BURKE
United States Attorney
District of Arizona
2 W ALLACE H. KLEINDIENST
BEVERLY K. ANDERSON
3 CHRISTINA M. CABANILLAS
MARY SUE FELDMEIER
BRUCE M. FERG
4 Assistant U.S. Attorneys
United States Courthouse
405 W . Congress St., Suite 4800
5 Tucson, Arizona 85701
Telephone: (520) 620-7300
6 W allace.Kleindienst@usdoj.gov
Bev.Anderson@usdoj.gov
Christina.Cabanillas@usdoj.gov
7 Mary.Sue.Feldmeier@usdoj.gov
Bruce.Ferg@usdoj.gov
Attorneys for Plaintiff
8
UNITED STATES DISTRICT COURT
9
DISTRICT OF ARIZONA
10
11 United States of America,
CR 11-0187-TUC-LAB
12 Plaintiff,
GOVERNMENTS RESPONSE TO
13 v. DEFENDANTS MOTION TO
RECONSIDER ORDER DENYING
14 Jared Lee Loughner, VIDEOTAPING OF RESTORATION
PROCEDURES
15 Defendant.

16
Comes now the United States of America, by its attorneys undersigned, and hereby
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responds to the defendants Motion to Reconsider Order Denying Videotaping of Restoration
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Procedures (CR 279).
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The defendant filed a motion asking this Court to order the Bureau of Prisons to
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videotape what he variously described as all clinical assessments, competency restoration
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efforts, restorability determination[s], and restorability assessments of the defendant.
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(CR 262 at 1, 2, and 3 n.1.) This Court denied the defendants request for an order, leaving
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it to BOP to decide whether videotaping of its clinical assessments of the defendant would
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serve a useful purpose, and [whether] it is willing to accommodate the defendants request.
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(CR 275 at 3.) The defendant now asks the Court to reconsider that ruling but provides no
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better grounds for its requested videotaping than it did in the original motion. The
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government therefore respectfully requests this Court to deny the motion for reconsideration.
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1 Law/Argument
2 A. This Motion Should Be Denied For Failure To Satisfy Pertinent District Rules.
3 Under District of Arizona Local Criminal Rule 47.1, motions in criminal cases are
4 governed by Local Civil Rules (LRCiv) 7.1 and 7.2. LRCiv 7.2(g)(1), pertaining to
5 motions for reconsideration, provides:
6 The Court will ordinarily deny a motion for reconsideration of an Order absent a
showing of manifest error or a showing of new facts or legal authority that could not
7 have been brought to its attention earlier with reasonable diligence. Any such
motion shall point out with specificity the matters that the movant believes were
8 overlooked or misapprehended by the Court, any new matters being brought to the
Courts attention for the first time and the reasons they were not presented earlier,
9 and any specific modifications being sought in the Courts Order. . . . Failure to
comply with this subsection may be grounds for denial of the motion.
10
The defendants motion satisfies none of these requirements. He does not contend that
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the Court manifestly err[ed] in denying his original motion. Although he somewhat
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narrows his request for relief, he neither provides any new facts or legal authority that could
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not have been brought to [the Courts] attention earlier with reasonable diligence, nor gives
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any reasons they were not presented earlier. The Ninth Circuit regularly enforces rules like
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this one limiting reconsideration. See, e.g., Goodstein v. Continental Casualty Co., 509 F.3d
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1042, 1051 (9th Cir. 2007); Shalit v. Coppe, 182 F.3d 1124, 1132 (9th Cir. 1999), and cases
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cited. Reconsideration is not in order, nor a grant of relief appropriate, merely because of
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a partys persistence in repetitiously filing re-framed motions.
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B. Besides Failing To Comply With The District Rules, This Motion Is Meritless.
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(1) No Persuasive Justification For Doing The Videotaping Has Been Offered.
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The latest justification for videotaping staff interactions with the defendant is the
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assertion that [i]t is likely [he] suffers from echolalia and the defense apparently wishes
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to capture any evidence of this. (Mo. Recon. at 2.) 1/ However, it is neither likely that he
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25
26 1/
Echolalia is the pathological, parrotlike, and apparently senseless repetition
(echoing) of a word or phrase just spoken by another person. American Psychiatric
27 Association, D IAGNOSTIC AND S TATISTICAL M ANUAL IV-T EXT R EVISED 823 (2000) (DSM-IV-
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1 suffers from echolalia, nor is there any evidence offered that he does. The defense cites
2 Gladys J. v. Pearland Ind. Sch. Dist., 520 F.Supp. 869, 876 (S.D. Tx. 1981), for the
3 proposition that echolalia is characteristic of schizophrenia. However, the quoted language
4 related to that particular childs diagnosis of organic childhood schizophrenia, not to
5 schizophrenia in general. On the contrary, the only form of schizophrenia discussed in the
6 DSM-IV-TR in which echolalia is mentioned as a symptom is the catatonic variety. Id. at
7 315. See also R.J. Campbell, C AMPBELL S P SYCHIATRIC D ICTIONARY 317 (9th ed. 2009)
8 (defining echolalia as pathological repetition of the speech of another, seen in some patients
9 with the catatonic form of schizophrenia and organic disorders such as Alzheimers
10 disease). As noted by this Court during the hearing on the defendants competency, Dr. Pietz
11 diagnosed him as having schizophrenia of the undifferentiated type and Dr. Carroll
12 concluded that it was schizophrenia of the paranoid type. (RT 5/25/11 43, 46.) Thus, the
13 mere fact that the defendant has been diagnosed as suffering from a form of schizophrenia
14 does not make it likely that he manifests echolalia.
15 Moreover, conspicuously absent from the motion is any evidence that echolalia has
16 actually been observed in the defendant by anyone. If echolalia were truly as characteristic
17 of schizophrenia as the defendant suggests, and he had engaged in such behavior, it could
18 hardly have escaped the notice of all the trained professionals who have been observing him.
19 The defense also appears to dispute the competence and/or motives of the BOP staff, by
20 characterizing the voluminous records provided to them as nor reflect[ing] consideration
21 of this concern or preservation of the data needed to make this assessment fully. (Mo.
22 Recon. at 3.) However, the defense simply has no evidence of echolalia. As the Court noted
23 in its original order denying the videotaping, the defendant is being visited regularly by a
24 defense-retained psychiatrist and psychologist. (CR 275 at 3 n.2.) Those doctors have
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26
1/
(...continued)
27 TR).
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1 authored declarations regarding their visits with the defendant, which were filed with the
2 Ninth Circuit in connection with the defenses motion to enjoin the emergency medication,
3 and are being provided to this Court. (See Exh. D and E, contained in Exh. 1 to
4 Governments Response to Defendants Emergency Motion For Prompt Post-Deprivation
5 Hearing On Forced Medication, also filed on this date.) Neither doctor opined that the
6 defendant has catatonic schizophrenia, nor that he has displayed the slightest hint of
7 echolalia. Thus, because there is no abstract likelihood based on the defendants diagnosis
8 or any direct evidence that he is displaying echolalia, the sole rationale offered in support of
9 the defenses renewed videotaping request does not support that motion.
10 (2) The Methods Suggested By The Defense Are Not Workable.
11 Furthermore, even as modified in the Motion for Reconsideration, the procedures
12 suggested by the defense would not provide any usable evidence. This Court found that the
13 method previously used to videotape encounters with the defendant, a camera set up outside
14 his cell, was very distracting to the defendant and a hindrance to the FMC staff conducting
15 the examination. In particular, the Court noted that the defendant had reacted violently to
16 the camera on one occasion, and also found that the defenses broadly-worded request would
17 cause a substantial imposition on the work of the FMC staff. (CR 275 at 2.) The defense
18 suggests that those problems can be avoided by videotaping only the formal clinical
19 assessments conducted by Dr. Pietz, and by doing the videotaping through the surveillance
20 camera system. (Mo. Recon. at 2.) Neither suggestion warrants granting even the limited
21 videotaping now being requested.
22 First, what the defendant wants recorded remains ambiguous because his phrase formal
23 clinical assessment is not self-explanatory. As noted by the Court in its previous order, the
24 defendant has used clinical assessment expansively, to include all interactions by clinical
25 staff at Springfield with Mr. Loughner that relate to discussions of medication, competence,
26 restoration, clinical symptoms, and current functioning. (CR 275 at 2, citing the defendants
27 Reply to Governments Opposition to Videotaping of Restoration Procedures, CR 273 at 3.)
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1 Despite the Courts expressed refusal to adopt [s]uch a broad, catch-all definition (id.), the
2 defendant has not withdrawn or narrowed it.
3 In any event, the existing surveillance system simply is not capable of capturing the sort
4 of information that the defense wants. The defenses focus on echolalia demonstrates that
5 it desires a record of what the defendant might say, but the attached declaration by Christina
6 Wiggins explains that the surveillance system does not record audio. (Govs Ex. 1.) Thus,
7 the primary objective of the videotaping request cannot be accomplished. Moreover, some
8 portions of the defendants cell are out of the cameras view. (Id.) The record made in
9 connection with the current emergency medication of the defendant shows that he is in
10 frequent motion. This means that he would not necessarily be visible to the camera at all
11 times during an encounter with staff so that, to record such interactions, it would be
12 necessary to order him to remain within a specific area where he would be visible to the
13 camera. Not only would that be a highly distracting intrusion on his relations with the staff
14 if it were to be done, but BOP quite reasonably opposes such a procedure because disclosing
15 areas where the defendant could place himself that could not be observed would defeat the
16 whole point of the surveillance system. (Govs Ex. 1.) Moreover, even the theoretically
17 limited videotaping contemplated in the Motion for Reconsideration would impose a
18 tremendous burden on the already-strained staff resources at Springfield. (Id.) In short, the
19 defendants request is simply unworkable in all respects.
20 (3) The Evidence Preservation Argument Is Not Persuasive.
21 The defendant concludes with yet another iteration of his complaints about the possible
22 adverse effects of antipsychotic medications, which is presented at greater length in his
23 Emergency Motion For Prompt Post-Deprivation Hearing On Forced Medication. (CR 278.)
24 That argument is answered by the governments response to that motion and the
25 governments Answering Brief in the Ninth Circuit provided to this Court, which are
26 incorporated herein by reference rather than being repeated at length.
27
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1 Moreover, the evidence preservation argument is clearly meritless. As fully explained

2 in the governments response to the previous motion for videotaping, not only is there no
3 authority requiring videotaping of a competency restoration process, even when the request
4 is framed in terms of protecting a defendants Sixth Amendment rights, but the case law cuts
5 in the opposite direction, finding that the traditional protections afforded by an adversarial
6 trial are sufficient. See United States v. Byers, 740 F.2d 1104, 1120-21 (D.C. Cir. 1984);
7 United States v. Hinckley, 525 F.Supp. 1342, 1350 (D.D.C. 1981); Thornton v. Corcoran,
8 407 F.2d 695, 711 (D.C. Cir. 1969) (J. Burger concurring in part and dissenting in part). The
9 defendant will certainly have a hearing regarding his competency before any trial can occur,
10 so his interest in a fair trial is fully protected without the requested videotaping. 2/
11 For all these reasons, the defendants Motion for Reconsideration should be denied.
12 Respectfully submitted this 22nd day of August, 2011.
13 DENNIS K. BURKE
United States Attorney
14 District of Arizona
15 s/Bruce M. Ferg
16 BRUCE M. FERG
Assistant U.S. Attorney
17
18 Copy of the foregoing served electronically
or by other means this 22nd day of August, 2011, to:
19
Judy C. Clarke, Esq.
20 Mark F. Fleming, Esq.
Reuben Camper Cahn, Esq.
21
22
23
24
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2/
Aside from there being no legal authority requiring any videotaping, this Court has
26 already rejected the defendants request that recordings be released only to the defense (CR 279
at 4, line 6), as inequitable and not conducive to a reliable competency determination. (CR 173
27 at 2-5.) Should the Court order any recordings, that remains true.
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