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Obama speech undercuts federal charge for judge's murder

It may have been inadvertent, but a passage in President Barack Obama's speech to a memorial service it Tucson Wednesday night could undercut a criminal charge federal prosecutors have leveled at suspect Jared Loughner for the death of U.S. District Court Judge John Roll in a shooting rampage Saturday.

"Judge Roll was recommended for the federal bench by John McCain 20 years ago, appointed by President George H.W. Bush, and rose to become Arizona's chief federal judge," Obama told the crowd at the University of Arizona. Roll's "colleagues described him as the hardest-working judge within the Ninth Circuit. He was on his way back from attending mass, as he did every day, when he decided to stop by and say, 'Hi,' to his representative."

In the complaint supporting Loughner's arrest, federal prosecutors argue that Roll wasn't simply seeking to pay a social call on Rep. Gabrielle Giffords (D-Ariz.) when he showed up at the community outreach event where the shooting spree took place Saturday. Prosecutors and the FBI insist that Roll "was engaged in official duties" because he wanted to talk to Giffords and her staffers about problems with a surging caseload in federal courts in Arizona, particularly along the Mexican border.

Loughner's alleged killing of Roll may only be a crime under federal law if Roll was on business and not merely stopping by to say hi to a friend. The death penalty is likely available to the feds anyway, because of the death of Giffords's aide Gabriel Zimmerman. However, multiple murders are an additional aggravating factor that could lead to the death penalty under federal law, as is the killing of a federal judge when carrying out his official duties.

As a legal matter, Obama's view (which tracks with the public narrative offered by Pima County Sheriff Clarence Dupnik) may be irrelevant, but it probably doesn't help to have the President of the United States emphasizing the social aspect of Roll's stop to see Giffords on Saturday, rather than the reason prosecutors claim drew him there.

It should be noted that Roll's killing is clearly prosecutable under Arizona law. The issue of the strength of the federal charge for his murder mainly affects the dynamic between the state and federal governments over which should go first in prosecuting Loughner. For now, the feds are asserting their right to press forward before the state does.