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updated 2/18/2011 6:04:21 PM ET 2011-02-18T23:04:21

A judge said Friday the U.S. Marshals Service must decide if another mug shot can be released of the suspect in the Arizona shootings that killed six people and wounded U.S. Congresswoman Gabrielle Giffords and a dozen others.

U.S. District Judge Larry A. Burns also said in San Diego that he will keep search warrant records in the case sealed at least until another expected indictment is filed next month with additional charges.

Burns, who is overseeing the criminal case, wants to determine if the release of the documents would hurt the chance of a fair trial for 22-year-old suspect Jared Lee Loughner.

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The company that operates The Arizona Republic newspaper and the Phoenix TV station KPNX has been seeking records that show which items investigators took from Loughner's house after the Jan. 8 shooting.

Loughner has pleaded not guilty to federal charges. He was not at the hearing.

Story: Loughner pleads not guilty to Tucson shootings

Loughner pleaded not guilty to federal charges of trying to assassinate Giffords and kill two of her aides.

The indictment specifying those charges superseded an earlier federal complaint that also charged him with murder for the killings of U.S. District Judge John Roll and Giffords aide Gabe Zimmerman.

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Another indictment is expected to restore those murder charges. Loughner also will likely face state charges in the attack.

Burns of San Diego was appointed to hear the case after all the federal judges in Arizona recused themselves because of their connection to Roll, who was the chief federal judge in Arizona.

David Bodney, an attorney representing The Arizona Republic and KPNX-TV, argued in court papers that there's no basis for the records to continue to be sealed, that the public has a right to the records that have been under seal since Jan. 11, and that prosecutors haven't shown how making the document public would harm their case.

Video: Loughner’s mental state to be major legal issue

Judy Clarke, one of Loughner's attorneys, said in court records that her client's right to a fair trial might be harmed by the release of search warrant records.

She also said the documents contain potentially inflammatory statements by a law enforcement officer and that releasing the information could have a prejudicial effect on the prospective jury pool.

Prosecutor Beverly K. Anderson said in court papers that the federal government agreed with Loughner's attorneys who maintain the records shouldn't be released until lawyers litigate issues based on the items seized from the suspect's house. But Anderson said if the judge decides to unseal the records, prosecutors want parts of the records to still be kept private.

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Video: A silent, smiling Loughner pleads not guilty

  1. Transcript of: A silent, smiling Loughner pleads not guilty

    WILLIAMS: Good evening.

    BRIAN WILLIAMS, anchor: Tonight we have a late update on the story so much of the country has been following, the health and treatment of Congresswoman Gabby Giffords of Arizona , and whether her road to recovery might be a bit tougher than we first knew. But first, reporters got another look today at the man accused of trying to kill her; the alleged gunman, the troubled 22-year-old named Jared Loughner . He pleaded not guilty today to federal charges that he tried to kill a member of Congress and two of her aides. The attack, you'll recall, killed six people, wounded 13 others. We begin our coverage tonight with NBC 's Mike Taibbi , on the story this evening from Phoenix . Mike , good evening.

    MIKE TAIBBI reporting: Good evening, Brian . How are you? The arraignment today was on only three of the federal charges, not the potential death penalty charges for the murders of Judge John Roll and Giffords ' aide Gabe Zimmerman . But those charges could be added much sooner than many expected. Jared Loughner had shuffled into court, shackled hand and foot, with a thin smile that kept reappearing on his face, but in the 10-minute hearing he didn't say a word. His lawyer Judy Clarke entered his not guilty plea, and told the court the proceedings could continue from hereon in in Tucson , where the massacre occurred; there would be no change of venue motion. Judge Larry Burns asked that additional charges, including potential death penalty charges, be filed within 45 days -- a fast track former assistant US attorney Kurt Altman says would have to come from the top.

    Mr. KURT ALTMAN: The decision to seek the death penalty ultimately comes from Washington and, actually, ultimately comes from the attorney general himself, Eric Holder .

    TAIBBI: Defense attorney Judy Clarke specializes in gaining life sentences instead of the death penalty for defendants with overwhelming mental health issues, as Loughner 's known personal history seems to suggest.

    Mr. MARK KALISH (Psychiatrist): What you see is a portrait of somebody with a major mental illness of psychotic proportions.

    TAIBBI: Loughner left the courthouse under heavy police escort. In the meantime, the state now has its case to pursue on behalf of the other 11 who were injured and the four who were killed who were not federal employees.

    Mr. ALTMAN: Swift justice is justice. Justice delayed is, you know, unjust, as they say. Certainly they're going to want to go -- move forward.

    TAIBBI: Well, the clock has now started. The next court appearance in this case March 9th in Tucson . And by then, of course, federal sources are saying that Jared Loughner may for the first time know that he does, in fact, face

    the potential death penalty. Brian: Mike Taibbi starting us off in Phoenix , Arizona , tonight. Mike ,

    WILLIAMS:

Photos: Former Ariz. Representative Gabrielle Giffords

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  1. Gabrielle Giffords, the former congresswoman who was shot and left handicapped after a gunman opened fire at an event in Tucson, Ariz., and her husband retired Navy Capt. Mark Kelly prepare to testify before a Senate Judiciary Committee hearing on gun violence in Washington, D.C., on Jan. 2013. (Jim Lo Scalzo / EPA) Back to slideshow navigation
  2. U.S. Senator Richard Blumenthal, D-Conn., former U.S. Rep. Gabrielle Giffords and her husband, former astronaut Mark Kelly, leave the Newtown Municipal Building in Newtown, Conn. on Jan. 4, 2013. Giffords met with Newtown officials on Friday afternoon before heading to visit with families of the victims of the Sandy Hook Elementary School massacre. (Michelle Mcloughlin / Reuters) Back to slideshow navigation
  3. Gabrielle Giffords waves to the Space Shuttle Endeavor with her husband, former astronaut Mark Kelly as it flies over Tucson, Ariz. on its way to Los Angeles, on Sept. 20, 2012. Kelly served as Endeavour's last space commander months after Giffords survived serious head injuries because of a 2011 shooting. (P.K. Weis / Southwest Photo Bank via AP) Back to slideshow navigation
  4. Gabrielle Giffords blows a kiss after reciting the Pledge of Allegiance during the final session of the Democratic National Convention in Charlotte, N.C. on Sept. 6, 2012. (Eric Thayer / Reuters) Back to slideshow navigation
  5. Gabrielle Giffords stands on top of a peak in the French Alps with her husband Mark Kelly, right,, and mountain guide Vincent Lameyre, July 23, 2012. On her first trip out of the country since her injury in 2011, she rode a two-stage cable car to a station for spectacular views of Mont Blanc. (Denis Balibouse / Reuters) Back to slideshow navigation
  6. Ron Barber, right, celebrates his victory with Giffords, left, prior to speaking to supporters at a post election event, Tuesday, June 12, 2012, in Tucson, Ariz. Barber, Giffords' former district director, won her seat in a special election after she resigned to focus on her recovery. (Ross D. Franklin / AP) Back to slideshow navigation
  7. Democratic Florida Rep. Debbie Wasserman Schultz, read Rep. Gabriell Giffords resignation speech on the House floor on Wednesday, Jan. 25, 2012. The day after President Obama's State of the Union speech, Giffords formally offered her resignation to Speaker John Boehner. Weeping, Shultz applauded the strength of her friend and colleague, "I'm so proud of my friend." (MSNBC) Back to slideshow navigation
  8. President Barack Obama hugs retiring Congresswoman Gabrielle Giffords as the president arrives to deliver his State of the Union address on Tuesday, Jan. 24, 2012. (Pool / Reuters) Back to slideshow navigation
  9. Rep. Gabrielle Giffords, D-Ariz., left, and Pelosi, right, posing with Giffords husband, former astronaut Mark Kelly of the Navy, at his retirement ceremony with Vice President Joe Biden in the Old Executive Office Building on the White House complex in Washington, Thursday, Oct. 6, 2011. (House Leader Nancy Pelosi's office / AP) Back to slideshow navigation
  10. Rep. Gabrielle Giffords returns to the House for the first time since she was shot, making a dramatic entrance on Monday, Aug. 1, 2011, during a crucial debt vote. She drew loud applause and cheers from surprised colleagues. (NBC News) Back to slideshow navigation
  11. Rep. Gabrielle Giffords poses for a photo the day after the launch of NASA space shuttle Endeavour and the day before she had her cranioplasty surgery, outside TIRR Memorial Hermann Hospital May 17, in Houston, Texas. Aides of Rep. Gabrielle Giffords posted two recent photos of the congresswoman to her public Facebook page, the first since the January 8 shooting that killed six people and wounded a dozen others. (P.K. Weis / Giffords Campaign / Getty Images) Back to slideshow navigation
  12. Emergency workers use a stretcher to move Rep. Gabrielle Giffords after she was shot in the head outside a shopping center in Tucson, Ariz., on Saturday, Jan. 8, 2011. (James Palka / AP) Back to slideshow navigation
  13. In this Jan. 5, 2011 file photo, House Speaker John Boehner re-enacts the swearing in of Rep. Gabrielle Giffords on Capitol Hill in Washington. (Susan Walsh / AP) Back to slideshow navigation
  14. Rep. Giffords, left, speaks during a candidates debate with Republican candidate Jesse Kelly at the University of Arizona in Tucson, Ariz., on Oct. 18, 2010. Kelly is an Iraq War veteran and was the Tea Party favorite for the 8th congressional district seat. (Joshua Lott / The New York Times via Redux Pictures) Back to slideshow navigation
  15. Rep. Gabrielle Giffords meets with constituents in Douglas, Ariz., in 2010. Giffords, 40, took office in January 2007, emphasizing issues such as immigration reform, embryonic stem-cell research, alternative energy sources and a higher minimum wage. (Reuters) Back to slideshow navigation
  16. Rep. Giffords speaks during a press conference in Washington, D.C., where members of Congress called on the President to secure the border with the National Guard on April 28, 2010. (James Berglie / Zuma Press) Back to slideshow navigation
  17. This picture provided by the office of Rep. Gabrielle Giffords on Monday, March 22, 2010, shows damage to her office in Tucson, Ariz. The congressional office was vandalized a few hours after the House vote overhauling the nation's health care system. (AP) Back to slideshow navigation
  18. Rep. Gabrielle Giffords, D-Ariz., center, gives a tour of Statuary Hall in the Capitol to Shuttle Discovery STS-124 astronauts Mission Specialist Akihiko Hoshide, of Japan, and her husband, Commander Mark Kelly, on Thursday, July 17, 2008. (Bill Clark / Roll Call Photos) Back to slideshow navigation
  19. From right. Rep. Ken Calvert, Rep. Dennis Moore, Rep. Gabrielle Giffords, and Rep. Heath Shuler, attend a House Ways and Means Subcommittee on Social Security hearing on current and proposed employment eligibility verification systems on May 6, 2008. The hearing provided a forum for lawmakers on both sides of the immigration debate, focusing on a system to verify the legal status of workers and job applicants. (Scott J. Ferrell) Back to slideshow navigation
  20. Gabrielle Giffords with U.S. Navy Cmdr. Mark Kelly, a NASA astronaut, at their wedding in Amado, Ariz., on Nov. 10, 2007. Kelly's twin brother, also an astronaut, is a commander on the International Space Station. "We have a unique vantage point here aboard the International Space Station. As I look out the window, I see a very beautiful planet that seems very inviting and peaceful. Unfortunately, it is not," said Scott Kelly of the tragedy that befell his sister-in-law. (Norma Jean Gargasz for The New York Times / Redux Pictures) Back to slideshow navigation
  21. Representatives-elect including Dean Heller, top right, and Gabrielle Giffords, next to Heller, prepare for the freshman class picture for the 110th Congress on the House Steps on Nov. 14, 2006. (Tom Williams / Roll Call Photos) Back to slideshow navigation
  22. Rep. Gabrielle Giffords rides horseback in 2006. In an interview with NPR last year, she recalled working with horses during her adolescence in Tucson. "I loved cleaning out the stalls, and I did that in exchange for riding lessons. And I continue to ride most of my life. And I learned a lot from horses and the stable people ... I think it provided good training, all of that manure-shoveling, for my days in politics ahead." (Reuters) Back to slideshow navigation
  23. A page entitled, "Just do it!" in La Semeuse, the Scripps College yearbook in 1993. The photo at right shows Giffords in traditional Mennonite clothing. That same year, she won a Fulbright award to study Mennonites and other Anabaptist groups in Northern Mexico. Gifford's senior thesis was titled "Wish Books and Felt-Tipped Fantasies: The Sociology of Old Colony Mennonite Drawings." (Scripps College) Back to slideshow navigation
  24. Gabrielle Giffords' senior portrait from the 1993 Scripps College yearbook. Giffords double-majored in Latin American studies and sociology. A Dean's List student, Gifford won several awards during her time at Scripps. (Scripps College) Back to slideshow navigation
  25. Gabrielle Giffords, right, laughs with her mom, Gloria Kay Fraser Giffords, in a photo published in the Scripps College yearbook. Gabrielle received a B.A. in Sociology and Latin American history from Scripps College in Claremont, Calif. in 1993. (Scripps College) Back to slideshow navigation
  26. University High School portrait of Gabrielle Giffords, class of 1988. Dr. John Hosmer, taught history to the future lawmaker. He tells msnbc.com, "Gabrielle sat in the front row. She was inquisitive ... She was a very mature person from the moment she walked in the door." (University High School) Back to slideshow navigation
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  1. Image: US Senate holds hearing on Gun Control
    Jim Lo Scalzo / EPA
    Above: Slideshow (26) Former Ariz. Rep. Gabrielle Giffords
  2. Image:
    Morry Gash / AP
    Slideshow (45) Mourning follows deadly shooting in Arizona

Interactive: Giffords' shooting

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