July 30 (Bloomberg) -- James Holmes, the suspect in a mass shooting at a Colorado movie theater that killed 12 people, is scheduled to be formally charged today as prosecutors weigh a bid for the death penalty.
Holmes probably will face a dozen first-degree murder charges, according to a July 26 court filing. Twelve people died and at least 58 were injured when theater goers were attacked July 20 during a midnight showing of the Batman movie “The Dark Knight Rises.” Premeditated murder of multiple victims can be punishable by death in Colorado.
“Holmes is looking at well over 1,000 years in prison and I doubt he will live that long so this is all about the death penalty,” said Craig Silverman, a former chief deputy district attorney in Denver who is now in private practice. “If the death penalty is not obtained against Holmes, that would represent the effective end of capital punishment in Colorado.”
The shooting in Aurora, a suburb of Denver, was the deadliest in Colorado since the Columbine High School massacre in April 1999 and the worst mass shooting in the U.S. since November 2009, when 13 people were killed at Fort Hood in Texas.
An insanity defense by Holmes seems probable, as well as a claim that he’s incompetent to stand trial, Silverman said. Such a defense, coupled with hundreds of charges, could result in a “nightmare prosecution,” Silverman said.
Carol Chambers, the district attorney for Arapahoe County, will formally charge Holmes at a hearing today in state court in Centennial, Colorado. She said after the shooting that a decision on whether her office would seek the death penalty is months away.
“I don’t think this is a slam-dunk case,” Silverman said. “The elements of first-degree murder are clearly there and there is no question about cause of death or who did it.”
“However, once the defense presents evidence of insanity, then the prosecution has to prove beyond a reasonable doubt that Holmes was not insane,” Silverman said. “That can be tough.”
The office of Colorado State Public Defender Douglas K. Wilson is representing Holmes. Wilson didn’t respond to a call seeking comment on a judge’s July 26 order that cited prosecutors as saying Holmes may face 12 counts of murder. Holmes’s lawyers won’t assert a defense, including any possible insanity defense, until after the formal charges are filed.
Holmes allegedly bought a ticket for the Batman showing, entered the theater and watched the film for a while before propping open an exit door and leaving, according to police. He went to a white Hyundai parked outside, put on a helmet and ballistic vest, armed himself and returned to the theater, police said. Police apprehended him behind the building, located in a shopping mall, after the first 911 call at 12:39 a.m.
Three weapons were retrieved at the scene. A fourth, a .40 caliber Glock handgun, was found in Holmes’s car.
During an initial court appearance on July 23, Holmes appeared at times lethargic and at others distracted. His hair dyed orange and dressed in red prison clothing, Holmes didn’t enter a plea or speak. At times he opened his eyes wide and blinked rapidly.
Holmes allegedly referred to himself as “the Joker,” a Batman villain, as he was being arrested. Holmes, whose apartment was booby-trapped with explosives, acted bizarrely hours after his arrest and used evidence bags as hand puppets, Denver’s ABC affiliate reported. Fox News reported that Holmes also allegedly sent a notebook with violent writing to a university psychiatrist.
Those actions don’t necessarily point to insanity, Silverman said.
“He may well be faking it,” Silverman said. “Those eye movements in the courtroom are the kind of acting any one of us could do. It was not overwhelming evidence that he’s insane.”
Michael Nuccitelli, a Kingston, New York-based forensic psychologist, said he disagrees. While it’s possible Holmes could have faked his courtroom demeanor, it’s more likely he may have a personality disorder that could lead to delusions, Nuccitelli said.
“His profile seems to be very similar to schizoid personality disorder,” Nuccitelli said. “It’s one of 10 personality disorders and those with it tend to be very distant, avoidant. They don’t feel anxiety about being loners.”
Holmes, who had been a graduate student in neuroscience at the University of Colorado, Denver, didn’t have a criminal record, police said. He attended high school in San Diego, where his parents and other relatives still live. He began buying weapons in May at stores in the Aurora region, said Dan Oates, the city’s police chief.
Authorities found a surveillance video of Holmes picking up 150 pounds of ammunition at a Federal Express outlet in Colorado, said a law enforcement official who wasn’t authorized to speak publicly and requested anonymity. Investigators interviewed a United Parcel Service Inc. driver who said Holmes had 90 packages delivered to his workplace on the University of Colorado medical campus, the official said.
Holmes had seen a psychiatrist, his lawyers said in a July 27 court filing that didn’t elaborate on when or why he saw the doctor.
Holmes will probably undergo a series of medical evaluations by psychologists and psychiatrists to determine his mental state, Silverman said. He may claim incompetence, that he lacks the capacity to follow the legal proceedings or assist his counsel, Silverman said.
As part of the defense, Holmes’s lawyers probably will search his personal history for something in his background of character that “mitigates” the alleged crimes, not to spare a conviction but to save his life, said Sam Kamin, a law professor at Denver University.
“If he is tried and convicted the defense might use his mental problems to mitigate his crimes,” Kamin said.
The case is People v. Holmes, 12-cr-01522, 18th Judicial District Court, Colorado (Centennial).
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