CENTENNIAL, CO - Prosecutors and defense attorneys argued at a hearing Monday over a notebook James Holmes mailed to his psychiatrist, setting up the first bout over the mass murder defendant's mental state and possibly laying the groundwork for an insanity defense.
Arapahoe County District Attorney Carol Chambers charged James Holmes with 142 criminal counts, including 24 counts of murder for the movie-theater massacre that killed 12 people and injured 58 others. Chambers charged Holmes with 12 counts of premeditated murder and 12 counts of murder with malice and extreme indifference to human life.
The first-degree murder charges underscore prosecutors' belief that Holmes, 24, acted with premeditation by purchasing a shotgun, semiautomatic assault-style rifle, two semiautomatic guns, 6,000 rounds of ammunition and other gear in the weeks leading up to a methodical assault at the crowded theater in Aurora.
Chambers has not said whether she will seek the death penalty.
Holmes' lawyers argued that the notebook, discovered in a campus mailroom three days after the rampage, is protected by doctor-patient privilege and that prosecutors should not be allowed to see its contents. The judge said he would hold a hearing later before ruling on that issue.
The former neuroscience graduate student appeared more alert than his initial dazed appearance last week. He conferred with his public defenders, swiveled in his chair and occasionally rolled or widened his eyes during the 45-minute hearing. He avoided looking past his attorneys to the area where victims and supporters sat.
Holmes has not entered a plea in the July 20 shooting, but legal analysts say an insanity defense is likely, given the nature of the crime and revelation he was a psychiatric patient. "It's the only thing they have," says forensic psychiatrist Steven Pitt, who was a consultant to prosecutors on the 1999 Columbine High School shooting. "It's a defense of last resort."
The insanity defense is rarely used - only about 1% of felony defendants use it - and rarely successful, Pitt says.
In Colorado, establishing a defendant's mental state can be a two-step process. The first involves determining the person's competency to stand trial - whether he understands the charges against him and can assist his lawyers in his defense.
If Holmes' lawyers argue he is not competent to stand trial, he could end up like Jared Loughner, accused of killing six people and shooting congresswoman Gabrielle Giffords outside Tucson last year. Loughner is in a prison hospital being treated for schizophrenia in an effort to make him competent to face trial.
Iris Eytan, a Colorado defense lawyer who specializes in cases involving mentally ill defendants, says the state evaluates about 1,000 defendants a year for their mental competency.
The second step would involve Holmes pleading not guilty by reason of insanity, which he could do at an arraignment.
District attorneys in two high-profile Colorado cases say prosecutors in the state are at a disadvantage when the defense raises an insanity defense. Under state law, a psychiatrist working for a state psychiatric hospital evaluates a defendant's sanity. If the defendant is found insane, a judge can rule that prosecutors may not have their own experts interview the defendant to refute or corroborate his mental state.
That happened in the case of Bruco Eastwood, who was charged with opening fire in a Littleton middle school and injuring two students in February 2010. He was found not guilty of attempted murder by reason of insanity.
Steve Jensen, the prosecutor, says the case was hurt because he could not have a psychiatrist interview the defendant directly. The jury heard only that the psychiatrist reviewed reports of interviews with the defendant.
A similar legal issue arose in the case of a Boulder woman, Stephanie Rochester, who was found not guilty by reason of insanity of killing her 6-month-old son in 2010.
The prosecutor, Stan Garnett, filed an appeal that he hopes will set a legal precedent allowing district attorneys access to defendants who raise an insanity defense. The appeal is pending.
"It will come up again in almost every sanity case," Garnett says. "It could come up again with Holmes."
Defense attorney Eytan says defendants have to give up their right to remain silent when they are evaluated by the state psychiatrists and, in most cases, the state psychiatrists side with state prosecutors.
"The bottom line is that they are the state's doctors," she says. "I don't feel sorry that they can't have their own doctors examine the defendant."