After the Aurora Shootings: The Prosecution and Defense of James Eagan Holmes

By Richard Holloway, J.D.

James HolmesAs extensive media coverage of James Holmes’ shooting spree in Aurora, Colorado continues, reports offer firsthand accounts from survivors of the unfortunate night; tell of the manner in which he apparently booby-trapped his apartment; and more recently, describe the package Holmes allegedly sent to a professor at the University of Colorado.  As a former trial attorney, these reports raise a number of serious questions in my mind – many for which the answers won’t be clear for months to come. To understand the challenges the prosecution and defense in this case will face in the road ahead, let’s examine some of the details pending in the case.

Death Penalty
One of the most immediate questions the prosecution will have to answer is whether the death penalty will be pursued in Holmes’ case.  Craig Silverman, former Denver County chief deputy district attorney, told the Denver Post, "If you don't pursue the death penalty in this case, you may as well throw away the statute." Since the United States Supreme Court reinstated the death penalty in 1976, Colorado has executed just one person – in 1997. According to the Colorado Department of Corrections website, the state currently has three people on death row. Those cases include: Nathan Dunlap, convicted of shooting and killing four people at a Chuck E. Cheese’s restaurant; Sir Mario Owens, convicted of killing two prosecution witnesses in a murder trial in which he was involved; and Robert Ray, convicted of ordering Owens to commit the murders to the two witnesses in his own murder trial.  The circumstances of each of the three death row inmates are different from what Holmes is alleged to have done. Some may argue that what Holmes did was significantly more damaging to the community than the three other death row inmates – combined.  From that perspective, it may be difficult for anyone to argue against the death penalty in this case.  Further, it might be tough for even the staunchest detractors of capital punishment to argue against putting Holmes to death.

Charges
While we await the Arapahoe County District Attorney’s decision on the death penalty, it will be interesting to see the full breadth of charges filed by the District Attorney in this case.  At a minimum, expect 12 counts of murder in the first degree – which is a Class 1 felony in Colorado with a minimum life sentence, and a maximum sentence of death. Latest reports indicate 58 people injured, so one can expect dozens of counts of attempted murder and assault in the first degree for those who survived. Plus, his booby-trapped apartment makes it reasonable to conclude that Homes intended to injure or kill first-responders at his apartment. So, we might also see charges for attempted murder of a peace officer of firefighter, or additional first degree assault charges.

Insanity Defense
The full catalog of potential charges that Holmes’ defense attorneys must deal with is huge. However, media reports to date suggest that the real issue for Holmes’ defense counsel is whether to raise the defense of not guilty by reason of insanity. The State of Colorado’s test for insanity: “A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable. But care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives, and kindred evil conditions, for when the act is induced by any of these causes the person is accountable to the law.” Colorado law holds that, engaging in repeated criminal or otherwise antisocial conduct does not meet the definition of “diseased or defective in mind.” Colorado does not recognize the defense of temporary insanity.  If Holmes were found not guilty by reason of insanity, under Colorado law he would be committed to the custody of the Department of Human Services.  Holmes would have to submit to evaluation by mental health experts, and lay witnesses who had the opportunity to observe his behavior either in the time leading up to the shootings, or during the shootings, would be allowed to testify at a hearing on Holmes’ sanity.

An insanity defense is not an easy road for Holmes and his attorneys.  First, it is unknown yet whether Holmes will agree to that defense, although his attorneys can raise the defense over his objection.  However, considering the heinous nature of the crimes committed in this case, not pleading guilty by reason of insanity may be tantamount to a guilty plea.  If a plea of not guilty by reason of insanity is entered, the court would order a sanity examination.  After receiving the report on the insanity examination, the case would be set for trial. In Colorado, all defendants are presumed sane, and the prosecution would have the burden of proving Holmes sane if any evidence of insanity is introduced.  This means that the prosecution would have to prove beyond a reasonable doubt that Holmes was sane at the time of the shooting spree in this case, just as the prosecution would have to prove beyond a reasonable doubt that Holmes was guilty of all of the elements of the crimes charged. While there is no such thing as an open and shut case, the real challenge for the prosecution in this case rests in proving beyond a reasonable doubt that Holmes was sane.

There are many additional questions to be answered in the upcoming months, and, if this case goes to trial, in years to come. At this point, one thing is certain: lawyers on both sides have their work cut out for them.

What do you think about an insanity defense for Holmes, or a potential death sentence for the shooting crimes? Share your comments below, or discuss with the author on Twitter @CTUJustice.

Richard Holloway, J.D., practiced both criminal and civil law in the Chicago area for nearly a decade before he began teaching as an adjunct professor in Business Law and Criminal Justice. Now, having worked in higher education for nearly another decade, Holloway is Program Director for Criminal Justice in CTU’s College of Security Studies.

Image credit: RJ Sangosti-Pool / Getty Image


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