Colorado shooting: Suspect is charged, no word on death penalty

James Holmes had his second court appearance Monday, as prosecutors formally filed the charges against him.

Mr. Holmes, accused of opening fire in an Aurora, Colo., movie theater this month, killing 12 people and injuring 58, was charged with 142 counts, including 24 counts of first-degree murder, 116 counts of attempted murder, one count of possession of an explosive device, and one count of a sentence enhancer for a crime of violence.

He was charged twice for each of the individuals killed. Colorado has several different classes of murder charges. One set of the charges refers to the fact that Holmes allegedly shot after deliberation. The second set accuses him of killing “under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally."

Holmes also waived his right to a preliminary hearing within 35 days.

The judge, William Sylvester, set a date for a preliminary hearing Nov. 12. The next court hearing in the case will be Aug. 9, when the court will address a motion filed by several media outlets to unseal records in the case. A court order has kept virtually all case documents sealed, and a gag order has limited what attorneys, police officers, and others can say about the case.

Holmes made his first court appearance a week ago; this time, cameras and electronic equipment were barred from the room.

The charges were hardly a surprise, since Holmes’s involvement in the shooting, and the nature of the crimes, seem clear. At this point, most of the speculation centers on whether Colorado prosecutors will seek the death penalty for Holmes, and whether his defense team will be able to mount an insanity defense.

Capital punishment in Colorado exists, though it’s seldom used. In the past 45 years, one person has been executed in the state: Gary Lee Davis, in 1997, for rape and murder. (Between 1972 and 1984, the state had no death penalty.) Three people now sit on death row.

But it also seems likely that prosecutors will seek the death penalty in Holmes’s case.

“If James Holmes isn’t executed,” former Denver prosecutor Craig Silverman told Reuters last week, “Colorado may as well throw away its death penalty law.”

To qualify for the death penalty, Colorado law says, one of 17 aggravating factors must be present in addition to first-degree murder.

Holmes “satisfies many of them,” says Sam Kamin, a law professor at Denver University. The factors include killing multiple people, killing in an especially heinous or cruel way, lying in wait for the victim, and creating a grave risk of death for one or more people in addition to the victim.

“What we don’t know yet, and can’t know, is what the case for mitigation will be,” adds Professor Kamin. The murders and aggravating factors will have to be balanced against that case – most likely centered on Holmes’s mental state, he says.

Conflicting reports have emerged in the past 10 days about Holmes’s mental state, and what information about the attack he may have mailed to a University of Denver psychiatrist.

Court papers last week confirmed that Holmes was seeing a psychiatrist, Lynne Fenton, at the university, but it’s unclear what she was treating him for. News outlets also claimed that Holmes had mailed a package to Dr. Fenton that contained a sort of journal describing plans for the attacks in detail.

However, prosecutors have said that much of the reported information was inaccurate, though they have confirmed that the notebook exists. It’s unclear exactly what the notebook contains, and when the package was received – whether it had been sitting in the mailroom since July 12, as Fox News originally reported, or whether it arrived there the Monday after the shooting.

Holmes’s defense team has filed a motion seeking to determine whether prosecutors or police were responsible for leaking information about the package to media. That had been expected to be discussed at Monday’s court hearing, but was postponed.

Evidence already appears to exist that the shooting was premeditated and that Holmes spent months planning it. In particular, authorities say that Holmes began buying bullets and ballistic gear online four months ago, and bought four weapons at Colorado stores in May and June. 

Such planning may make an insanity defense more difficult to prove. Ultimately, though, the success of such a defense in Colorado would rest on whether Holmes’s lawyers can prove that he was unable to tell right from wrong when he committed the attack.

“We don’t know what was going on inside the mind of what is clearly a disturbed individual,” says Kamin, adding that prosecutors will need to show that Holmes is sane enough to stand trial and was sane enough at the time of the crime to be held accountable for it. They will also need to address any possible mitigating factors in his past.

“The evidence of [Holmes’s] involvement is without question,” Kamin says. “The case is going to ultimately come down to the mental state of this defendant.”