Colorado Movie Theater Massacre: Legal Commentary
April 28, 2015: James Holmes has admitted that he entered a Colorado movie theater on July 20, 2012, and opened fire killing 12 people and wounding 70 others. That is not in dispute. The reason we have arrived at a jury trial is not to determine who the shooter was, but instead to determine whether or not Holmes was sane at the time of the shooting.
Holmes has entered a plea of not guilty by reason of insanity. A defendant raising this defense admits committing the acts but claims that he or she was insane at the time of the commission of the acts. The defendant must present evidence of insanity. Once the defendant raises such evidence, the burden shifts to the prosecution to prove that the defendant is sane. This is a very significant distinction with Colorado law: the PROSECUTION must prove that James Holmes was sane at the time of the shooting. If a jury finds that the defendant was insane, the defendant is committed to the Colorado Mental Health Institute in Pueblo until such time as the defendant is capable of being safely released back into society.
So what exactly is the standard in Colorado for determining that a defendant was so insane that he should not be held legally accountable for his crimes? There are two ways:
- He was so diseased or defective in mind that he could not distinguish right from wrong; OR
- He suffered from a condition of mind caused by mental disease or defect that prevented him forming a culpable mental state during the commission of the act.
Still, even though the burden is on the Prosecution to prove Holmes’ sanity, the uphill battle is really on the defense. Insanity defenses are successful in only 25 percent of felony trials nationally, even less so in homicides. Just one mass shooter has won a mental-health case in the last two decades, according to a recent AP story: Michael Hayes, who shot nine people, killing four, in North Carolina in 1988. Adding to those already long odds is the extreme emotional hurdle defense attorneys face here as a result of the heart wrenching carnage of the scene. You could see tears flowing down the faces of the jurors as Brauchler described the horrifying scene, especially the death of 6-year-old Veronica Moser-Sullivan.
With all of the emotional testimony expected over the next few months from victims and survivors, which will tug hard at our sense of humanity, defense attorneys will ask jurors to set that aside and focus instead on the psychology of the gunman himself.
District Attorney George Brauchler revealed during opening statements that both court ordered psychological evaluations of Holmes concluded that he was sane. Public Defender Daniel King however told jurors that every doctor that has seen Holmes, over 20 in total, agree he suffers from some degree of schizophrenia.
It seems fairly clear from opening statements that Holmes is a diagnosed schizophrenic, although we can expect to get clarification on that point from numerous experts during the trial. It is also fairly clear that Holmes is a very intelligent man with a high IQ who carefully planned this shooting.
So the primary unanswered questions are: was Holmes in the grips of a psychotic state as a result of his schizophrenia? As a result of his mental disorder, did he know right from wrong?
It is important to remember that while the most emotionally charged witnesses will clearly be the victims and survivors, the most important witnesses from a legal standpoint will undoubtedly be the experts.
During opening statements Brauchler spent considerable time detailing the months of planning that led up to this massacre. Holmes purchased firearms, body armor, tire spikes, knives, gas grenades, detonators, handcuffs to lock the movie theater door, and numerous other tools of destruction. He purchased movie tickets multiple times until he received the theater he desired, booby-trapped his apartment with explosives set to create a “flash-fire”, and covered “every inch of his body” with clothing or armor before beginning his assault. According to Brauchler, this was a logical and sane plan by a man who chose to kill other people in order to increase his own self-worth.
On the other side, Public Defender Daniel King portrayed Holmes during opening statements as a troubled youth that studied Neuroscience as a way to try and understand his own psychological issues. He told jurors that Holmes had suicide ideations at only 11 years old and was genetically predisposed for mental illness because his aunt and both his paternal and maternal grandfathers suffered from severe mental illness. In response to Brauchler’s “planning” arguments, King argued that there is nothing inconsistent between mental illness and planning. “The question is not can they plan, but what are they planning for? Is it an illogical delusional objective that makes no sense?”
King made a considered effort to show all the signs of insanity Holmes demonstrated after his arrest as well, including having to be placed in padded suicide watch cell, where he was covered in feces and didn’t care. According to King Holmes’ symptoms included ranting, licking the wall, eating paper, talking to people that weren’t there, and catatonia. He told doctors he was Peter Pan in the green vest, and he thought that President Obama was communicating with him through the TV, winking at him, agreeing with his human capital theory.
These were just the opening statements, and there will be months of testimony to really flesh out Holmes’ symptoms and to hear extensive testimony from psychiatric experts. As we sift through the mountain of evidence that will come in during this trial, it is important to focus on the one single issue at the heart of this case: Did James Holmes know right from wrong AT THE TIME of the shooting. If he did, then jurors will have to decide whether or not to put the Colorado Movie Theater Shooter to death.
December 6, 2013: It’s been nearly a year and a half since a masked man, later identified as James Holmes, opened fire on a crowded theater in Aurora, Colorado. 12 people were killed and 70 more were wounded following the rampage. For their families and friends, justice has moved slowly indeed.
In the wake of the first major psychiatric evaluation – and the promise of more to come – Colorado Judge Carlos Samour, Jr., has postponed the trial previously set to begin in February, this time indefinitely.
Although the result of the first evaluation has been kept confidential, it’s a fair guess that doctors determined Holmes to be mentally ill because the prosecution has asked for follow-up evaluations. It’s a rare move for prosecutors to ask for a second psychiatric analysis, and seems to indicate results that are not in line with their theory of the case. If the first report found that Holmes was sufficiently mentally healthy, the prosecution would almost certainly have held out for that February trial date, in an effort to bring closure to the many people affected by the mass killings.
Meanwhile, the defense objected to further psychiatric testing, a move that tends to show that the results of the test back up their not guilty by reason of insanity plea. Since Holmes’ mental state at the time of the shootings is the beginning, middle and end of the defense’s case, every psychiatric report generated is crucial.
Defense lawyers have already admitted that Holmes was responsible for the killing but entered a not guilty by reason of insanity plea, asserting that Holmes was so mentally ill at the time of the killing that he could not tell right from wrong – the legal definition of insanity in the state of Colorado.
Pleading not guilty by reason of insanity is appropriate in two circumstances. First, when the defendant is so mentally unstable that he cannot endure a trial – for example, if he cannot help his attorney prepare a defense or he cannot understand the proceedings. Secondly, the plea is used when the defendant was legally insane at the time of the alleged crime.
In Holmes’ case, the primary goal of the psychiatric report was to address the second issue – whether at the time of the shooting Holmes, due to a mental disease or defect, could not understand that what he was doing was wrong.
Here’s why this report is such a big deal: if the report determined that Holmes fit that very narrow legal definition of insanity, he would no longer be eligible for the death penalty. The death penalty is really the only issue at play in plea bargaining Holmes’ case. There is no way Holmes would ever serve less than a life sentence for this case given the severity of the alleged crime, so the only bargaining chip is whether the death penalty is on the table. If the death penalty is taken out of the picture based on the psych evaluation, then Holmes either changes his plea to guilty and serves a life, or he goes to trial, gets convicted and serves a life sentence. Maybe if he gets a particularly sympathetic jury at a trial he would serve out his time in a mental hospital instead, but given the public response to the Aurora shooting it seems unlikely that he would encounter a sympathetic jury.
So the death penalty is the crux of the issue and basically the only conversation the defense and prosecution are having. Holmes cannot be put to death if he was legally insane at the time of the shooting. If he knew what he was doing, the death penalty is still an option.
May 7, 2013:
Recent filings from his attorneys indicate that James Holmes will be entering in a Not Guilty by Reason of Insanity (colloquially known as an NGRI plea) at his next hearing on May 13, 2013.
From a layperson’s perspective, an insanity plea probably sounds like the world’s biggest no-brainer in this case. Holmes’ media persona is certainly that of a mentally ill man. He was seeing a psychiatrist before the massacre. He journaled extensively, and barely coherently, about his plans. He seemed to occupy a world divorced from reality. He has made numerous incidents of suicide attempts and self-harming while in custody. His booking photo showed him wild-eyed and out of control; his subsequent court appearances have shown him shuffling and responding laconically, clearly in a drug-induced torpor.
So why the hesitation, why the delay, in entering in the NGRI plea? Surely it has not taken a full year to learn that Holmes is mentally ill.
Part of the problem is that Colorado does not make entering an NGRI plea easy. Holmes’ attorneys have to truthfully represent to the judge that Holmes is entering an insanity plea “knowingly, voluntarily and intelligently” and that he understands the consequences of the insanity plea and the available options to him.
Up to this point, Holmes’s lawyers likely believed that could not truthfully say that in open court. Do you see how it’s a Catch-22 for the defense? The lawyers need to assert that Holmes understands the insanity plea, yet in order for him to properly plead insanity, he must be, well, insane.
So what happens now? Well, once an NGRI plea kicks in, the case bifurcates; that is, it takes on two parts. The first part is the “guilt phase,” where the prosecution must prove that Holmes is guilty of the crimes in question, just like a normal trial. Once guilt has been proven beyond a reasonable doubt, the “sanity phase” begins. In the sanity phase, all the evidence of his mental illness is taken into account to determine whether Holmes understood the criminality of his conduct at the time of his crimes.
Should he be found guilty but mentally ill, he will be placed in the custody of the state of Colorado’s mental health treatment, likely for the rest of his life. However, he will be ineligible for the death penalty based on Supreme Court decisions that prohibit executing the mentally ill.
What The Defense Wants
The defense’s “MOTION FOR APPLICATION OF HEIGHTENED STANDARDS OF FAIRNESS AND RELIABILITY TO ALL ASPECTS OF THIS CAPITAL CASE” is a motion by James Holmes’ attorneys to request a hearing on specific Constitutional protections provided to defendants in potential death penalty cases by the U.S. and Colorado Constitutions. Those charged with Capital crimes are afforded additional protections because of the severity and finality of a sentence of death. Examples of “Heightened standards of fairness and reliability” as requested by Holmes’ attorneys include:
i) Increased discovery to overcome any as-of-yet unknown hurdles the State puts in place to obtaining evidence potentially helpful to Holmes.
ii) Additional protections to ensure that an “impartial” jury is selected. This will be very difficult to find anywhere in the United States and especially in and around Aurora, Colorado where the tragedy was most directly felt.
iii) The inclusion of a lesser included offense instruction such as Second-Degree Murder or Manslaughter instead of simply First Degree Murder.
iv) The application of a “beyond a reasonable doubt” standard of proof for both aggravating and mitigating factors. Even after a conviction of First Degree Murder, the State is required to show that there are certain aggravating factors which merit the death penalty.
Holmes’ attorneys are asking for the opportunity to address these issues and likely several others in a hearing before the judge. The State however has informally opposed this motion.
September 21, 2012:
At yesterday’s hearing on whether or not the notebooks Holmes sent to his psychiatrist are subject to the attorney-client privilege, the prosecution withdrew their request for the notebooks entirely.
It seemed odd, right? Here are these notebooks, which very well could wrap up the prosecution’s case in a nice, neat little bow, by proving premeditation and planning, and the prosecution doesn’t even want them?
Well, not so fast. Sometimes when you are litigating a huge case like this one, you have to make decisions in favor of judicial expediency — that is, getting it done. Especially as a prosecutor, when you have a duty to protect and serve the public, you don’t want to waste time when you don’t have to.
And when it comes to this notebook, the prosecution doesn’t have to argue motions and sit around and wait for a decision, because in all likelihood, Holmes’ lawyers will submit the notebook to the court of their own account to try to prove Holmes’ mental state.
At this point, only Holmes knows what’s in those pages. But chances are that there’s the rants and raves typical of a person suffering from a mental disorder and something resembling a plan for the attack. The book will almost certainly be beneficial to both sides, and all the prosecution needs to do is sit back and wait for the defense to admit it into evidence.
August 23, 2012:
James Holmes’ school records took center stage at his most recent court hearing. His lawyers argued that the records should not be released because they are subject to privilege.
Certainly Holmes’ visits to school psychiatrists fall under the doctor-patient privilege, but school records such as grades and faculty evaluations are not protected in the same way.
The purpose of “privilege,” in the legal sense, is that there’s a public interest in patients and clients being honest and forthright with their doctors, psychiatrists and attorneys. So the courts have said that those discussions are confidential. There are certain exceptions to those rules, but in general, confidentiality between doctors and their patients and lawyers and their clients is respected.
However, the same public interest in candor and confidentiality does not exist in a teacher-student relationship, so Holmes’ school records probably will be used in his case.
The now-infamous notebook that Holmes sent to psychiatrist Dr. Fenton at the University of Colorado is probably protected by privilege, but the court will make a determination at a hearing scheduled for August 30.
July 30, 2012:
Charges filed: For each person killed in the movie theater attack, Holmes was charged with one count of premeditated first degree murder and one count of extreme indifference first degree murder. While most trial junkies will be familiar with premeditated first degree murder — willfully and deliberately causing the death of another with malice aforethought — extreme indifference murder is a different charge entirely.
Extreme indifference first degree murder is reserved for cases where the accused creates a situation so inherently dangerous that people will likely lose their lives. The classic case is starting a fire in a crowded nightclub, causing not only death and injury from the fire but also from the ensuing panic and stampede for the exits. In this case, where Holmes allegedly created a nightmare scenario inside a crowded movie theater with teargas and assault weapons, people were not only in danger of losing their lives from gunfire but also from trampling, a fatal reaction to teargas or from stress-related medical events like a heart attack or stroke.
Given the extent of this dangerous scheme, prosecutors charged Holmes with 12 counts of extreme indifference murder for each person who was killed and 116 counts of extreme indifference attempted murder for each person who might have been killed in the theater that night.
No charges were filed on behalf of victim Ashley Moser for her miscarriage. Colorado’s homicide laws only apply to those who were “born and alive.” In fact, Colorado lawmakers rejected a proposed law criminalizing fetal homicide as a veiled attempt to criminalize abortion only this spring.
July 27, 2012:
Premeditated murder: In light of the evidence that has been coming forward in the week since the attack, it would be very difficult indeed to characterize this as anything but a premeditated attack. Not only did Holmes allegedly arrive at the theater fully armed, but records show that he allegedly purchased 6,000 rounds of ammunition online in the weeks leading up to the shooting.
In addition, Holmes had allegedly fortified his apartment with explosives apparently meant to kill the inevitable law enforcement agents who would come to search his apartment. Had the bombs detonated as intended, it also would have destroyed further evidence of Holmes’ planning and preparation.
One piece of evidence, however, would have made it out of that apartment no matter what — a notebook allegedly sent by Holmes to a psychiatrist and professor at the University of Colorado, which law enforcement says describes the attack in detail, including drawings and illustrations of the massacre. In the notebook, little stick figures with guns are shown shooting other stick figures.
If positively traced back to Holmes, this notebook would be definitive proof of premeditation and would effectively finish any hope of a lesser charge such as second-degree (also known as “heat of passion”) murder.
Insanity defense: Holmes has been exhibiting behavior as strange as his multi-colored hair while in custody. At his court date, he seemed dazed and unfocused as he shuffled in and slumped in his seat. Some commentators wondered if he had been drugged or otherwise tranquilized for the hearing. It’s possible. It would violate due process if jail medical staff were to tranquilize Holmes to the point where he could not follow his own court proceedings, but an adverse reaction to new medications might have inadvertently caused Holmes’ trancelike state.
Jail officials report that Holmes has been alternately conversational and hostile to his jailers. He has apparently been asking guards how the movie ended — when he hasn’t been spitting on them, that is. Guards have given him a special mouthguard to prevent the saliva-attacks.
This behavior, plus the facts of the attack itself, combined with the content of the notebook he allegedly sent to the University of Colorado psychiatrist, all points to someone who is mentally ill. It is very likely that Holmes’ lawyers will seek psychiatric evaluation of their client in hopes of pursuing an insanity defense.
An insanity defense works one of two ways. Either the defense argues that the defendant is too mentally ill to understand what is currently happening, and therefore cannot participate in his own defense (this is what is currently happening with Jared Loughner, the defendant in the Gabrielle Giffords rally shooting), or else the defense argues that the defendant was too mentally ill at the time of the crime to have understood that what he was doing was a crime.
In the first case, the trial will be suspended indefinitely until the defendant is mentally sound enough to participate in his own defense. This branch of the insanity defense is only used in the most extreme cases of mental illness, and generally if a defendant can be medicated to the point where he is aware of the legal proceedings, the case will go on.
The second form of insanity defense is handled quite differently. It’s very hard to determine exactly what was going through the defendant’s mind at the time of the crime, so usually a small army of psychiatrists and criminologists will evaluate the defendant and all of the facts of the case. Then there is a formal hearing, basically a trial on the single issue of insanity, where the judge decides whether or not the defendant was insane at the time of the crime. This usually happens while the factual case — where a jury determines guilt or innocence — is ongoing, or immediately afterwards.
Without more information about Holmes, it’s impossible to know how Holmes’ lawyers will choose to proceed, but it is sure that an insanity defense will be pursued in some way.
July 20, 2012:
Premeditated murder: Given that Holmes allegedly walked into the theater, fully armed, and opened fire on the unsuspecting patrons therein, it seems likely that Colorado prosecutors will charge him with at least 12 counts of premeditated murder. Although no motive is known yet, this was certainly a pre-planned attack.
Incitement: Another charge Holmes might face is that of inciting chaos. By opening fire in a crowded movie theater, you incite chaos and create a dangerous situation where people are not merely threatened by the gunfire, but also by possible trampling. Holmes would be criminally liable for any injuries incurred not just from the shooting, but also as a result of the chaos and panic inside the movie theater itself.
Colorado Gun Laws: A mass shooting in Colorado cannot help but bring to mind the Columbine High School massacre of 1999. This is the second-deadliest mass killing in Colorado since Columbine, which claimed the lives of 12 students and one teacher.
Despite the state’s violent history, Colorado gun laws remain relatively permissive. Colorado residents who are of age can buy guns from dealers, gun shows or order them through the mail without a permit or a background check. Colorado gun owners do not need permits for anything other then a concealed handgun.
— one shotgun, two handguns, and one AK-style assault rifle. He also told police there were explosives at his apartment.
Whether Colorado decides to limit their relaxed gun laws based on this shooting remains to be seen. However, even in the wake of the Gabrielle Giffords shooting in Arizona in 2011, the Arizona state legislature did not see fit to strengthen that state’s gun control laws. In some states, gun ownership is so much a part of the culture that even these tragedies do not do anything to change public opinion.