James Holmes plea rejected: Are prosecutors prepping for death penalty?

Prosecutors are rejecting a plea agreement proposed by defense attorneys for James Holmes, the primary suspect in the mass shooting at a movie theater in Aurora, Colo., that killed 12 and injured 70 last July. The agreement proposes a guilty plea if Mr. Holmes does not receive the death penalty.

Without a guilty plea from Holmes, his mental health would likely be the big question mark in a potential trial. Indeed, prosecutors said in court documents Thursday that the plea they rejected was “a calculated attempt” by the defense to convince the public that the criminal insanity defense has merit.

At an August hearing immediately following the shooting, Holmes's attorneys told a judge that his client was mentally ill and time was needed to assess the extent and nature of his illness. There were also references to a notebook the former University of Colorado graduate student shared with a school psychiatrist, in which he portrayed violent acts.

Prosecutors have long argued the notebook should be made trial evidence, but the defense says it is protected by physician-patient privilege. In a court document filed Thursday in Denver, prosecutors are accusing the defense of refusing to cooperate with document requests.

“The defendant knows that he is guilty, the defense attorneys know that he is guilty, and that both of them know that he was not criminally insane” is the inevitable conclusion of his crimes, they said.

The insanity defense will make the trial difficult for the prosecution because, in contrast to the vast majority of states, Colorado puts the burden of proof on the prosecution, rather than on the defense. That means prosecutors will have to prove that Holmes is not insane, which could be an arduous task in a case involving so many unusual variables, such as Holmes’ bomb-rigged apartment, his orange-dyed hair, reports he told the police he was the cartoon villain the Joker, his heavy reliance on a psychiatrist and prescription medicine, and so forth.

Even faced with that task, however, the prosecution will not have a difficult case in proving Holmes knew what he was doing, says Daniel Filler, a former public defender who teaches criminal law at Drexel University School of Law in Philadelphia.

“While formally the burden of proof is on the prosecution, the reality is that juries are not typically very sympathetic to insanity claims,” Professor Filler says. “It is important to distinguish the formal rules of law and what the practical challenges are. The reality is the prosecution has the winds at its back in arguing [Holmes] is not insane because, after a horrible crime, juries are not looking for a way to absolve the defendant.”

The trial will ultimately come down to “a battle of experts,” he adds.

Arapahoe County prosecutor George Brauchler has said he will announce Monday whether he intends to seek the death penalty. There are clues that suggest he might be leaning toward that option. Mr. Brauchler added a death penalty lawyer to the prosecution team last month, and all three people on Colorado's death row were tried and sentenced in Arapahoe County.

The Holmes case has come as Colorado debated becoming the 18th state to repeal the death penalty. Though polls suggest that 68 percent of Coloradans support the death penalty, the legislature apparently had the votes to pass a bill. At a recent legislative hearing, Mr. Brauchler argued against repealing the sanction, saying, “repeal of the death penalty makes it harder to find justice for the worst-of-the-worst cases.”

Earlier this week, Gov. John Hickenlooper said he would veto a bill to repeal the death penalty and support for the bill fell apart. It failed to pass a committee vote Tuesday.

Though the bill would not have affected the Holmes case – it would have applied only to crimes committed after July 1, 2013 – some experts suggest that it has  kept the issue before the public eye.

"The Holmes case is no doubt keeping the issue on the death penalty in Colorado because of his very visible prosecution," says Kyle Saunders, a political scientist at Colorado State University in Fort Collins, in an e-mail.

Colorado has not executed a person since 1977.

• Staff writer Patrik Jonsson contributed to this report.