Shooting Suspect Insanity Plea Seen as Delaying Trial

A judge allowing James Holmes to plead insanity to charges of murdering 12 people in a shooting rampage at a Colorado movie theater would “stop the clock” on the case, further delay his trial, and almost guarantee an appeal, a former prosecutor and a law professor said.

State court Judge Carlos A. Samour Jr. in Centennial, Colorado, is scheduled today to determine whether Holmes’s lawyers have presented “good cause” to change his not guilty plea, which a judge entered for him in March, to not guilty by reason of insanity.

A decision by Arapahoe County District Attorney George Brauchler last month to pursue the death penalty against Holmes should be cause enough, Karen Steinhauser, a former Denver prosecutor now in private practice, said in phone interview. Brauchler’s office would be “hard pressed to object to the change of plea,” she said.

The death penalty sought by prosecutors along with Samour’s expected acceptance of the insanity plea will “stop the clock” on the case and likely delay a trial scheduled for February 2014 while Holmes undergoes psychological testing, Steinhauser said.

“For many victims and the public, a plea of not guilty by reason of insanity may seem like it’s just a delay tactic and they may believe there’s no way he was insane at the time,” Steinhauser said.

Possible Reversal

Of utmost importance is that the trial is “done one time and one time only,” she said. “If the court makes a mistake just to try to move things quicker, it can result in the whole case being reversed years down the road.”

Holmes, who studied neuroscience at the University of Colorado, Denver, is charged with 166 counts, including murder and attempted murder. In addition to the 12 people killed, 70 were injured in the July 20 shooting spree at a midnight screening of “The Dark Knight Rises” in Cinemark Holdings Inc. (CNK)’s Century Aurora 16 theater in the Denver suburb.

Prosecutors in March rejected an offer from Holmes to plead guilty and spend his life in prison without any chance of parole in exchange for sparing him from the death penalty.

Public defenders representing Holmes have objected on due process grounds to a provision of Colorado law blocking Holmes from calling witnesses at any sentencing hearing to present evidence about his mental condition if he doesn’t cooperate with court-appointed psychiatrists. Under Colorado law, psychiatrists are permitted to require Holmes to submit to interviews under the influence of a so-called truth serum, according to Steinhauser.

Narcoanalytic Interview

The judge who previously handled the case, William Sylvester, ruled that prosecutors may require Holmes to submit to a “narcoanalytic interview” under the influence of “medically appropriate” drugs. Such drugs can enable a person to recall something they’re having difficulty remembering.

The provision forcing Holmes to choose between cooperating with state psychiatrists or being precluded from presenting his own evidence is “of questionable constitutionality” and likely to be a basis of an appeal should Holmes be convicted, said Aya Gruber, a law professor at the University of Colorado in Boulder.

“Juries are so reluctant to acquit people that do heinous things, especially in high-profile cases” Gruber said. Holmes will most likely cooperate with court-ordered psychiatrists, with the case probably concluding in a death sentence for Holmes, she said.

Alternatively, she said the wide media coverage of the trial will enable Holmes to “get out the message that he is mentally disturbed, which can’t do anything but help him in the sentencing stage.”

“It really is a test case,” Gruber said, that will “be appealed on many grounds that we can’t speculate on -- but one of them will be that provision.”

The case is People v. Holmes, 12-cr-01522, 18th Judicial District Court, Colorado (Centennial).

To contact the reporter on this story: Joel Rosenblatt in San Francisco at jrosenblatt@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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