The judge in the Colorado movie theater shooting case on Tuesday granted a defense request that cameras be banned from the courtroom during the defendant’s next appearance Monday, strengthening an information blackout that is descending on the legal process.
Late Monday the judge issued a gag order, limiting what the Aurora police as well as the district attorney and defense lawyers can say about the emotionally wrenching case.
Nonetheless, as the information curtain falls, public interest in the proceedings is rising, especially after suspect James Eagan Holmes’ dramatic televised court appearance Monday, in which he appeared disoriented and disconnected. Legal observers say the death penalty and the insanity defense are sure to be at issue in this high profile case.
Some observers say that prosecutors, without doubt, will seek the death penalty.
“Prosecutors have to go through the exercise of making a determination,” says a former federal prosecutor, Jacob Frenkel, but this is what he calls an intellectual exercise, adding that the outcome is virtually certain.
“The decision not to seek the death penalty would be far more intensely scrutinized and criticized than the more logical and expedient decision to seek it,” he says.
Before the information blackout, Colorado District Attorney Carol Chambers told reporters Monday that the death penalty was a possibility. But Colorado law, like many other states, directs that the decision be made in consultation with the families of victims.
This is in part to prevent a potentially difficult scenario during the penalty phase of a trial, points out Drexel University law professor Daniel Filler. “You would not want the uncomfortable situation of having a victim oppose the death sentence and appear in court during sentencing to argue against it,” he says.
However, points out Mr. Frenkel, the fact is that there is such a level of outrage and so many victims “that the number of families that will clamor for the death penalty would far outweigh a lone dissenting voice.”
As the defendant awaits formal charges – currently scheduled for July 30 – several questions come into play, says former prosecutor Doug Godfrey, professor of law At Chicago-Kent College of Law.
First, he says via e-mail, “Is he fit to stand trial?”
This is a very easy burden to meet, he notes, pointing out that all that has to be demonstrated is that the accused knows the nature of the charges against him, knows the nature of the forum where he is facing those charges, and can communicate with his defense attorney.
Unfitness is a difficult thing for defense lawyers to prove, agrees James Silver, a former federal prosecutor and co-author of "Almost a Psychopath," an investigation of borderline personalities. But it might be something they try here, he adds. If Holmes were to be found incompetent, he could not be tried until he is found to be competent, which might take treatment, medication, and a long time (possibly months to years),” he says via e-mail.
“While the defense attorney may ask for a fitness examination by a psychologist or psychiatrist, the accused will probably be found fit,” unlike the recent Arizona case, says Professor Godfrey. The man who shot Congresswoman Gabrille Giffords and others in Arizona was found unfit “and this stopped the process against him.”
Colorado has a particularly high bar for the insanity defense, points out Susan Rozelle, professor of law at Stetson University College of Law in South Gulfport, Fla.
The insanity test, by which a defendant might be found not guilty by reason of insanity, is hard to satisfy in general, and in Colorado the test is especially difficult, she notes. The person has to suffer from a “severely abnormal mental condition [that grossly and demonstrably impair[s] a person's perception or understanding of reality [such that he is] incapable of distinguishing right from wrong,” she says via e-mail. That limits the defense to very few and very ill people indeed, she adds.
Despite what the public might believe, adds Mr. Silver, “the insanity defense is rarely used (only in about 1% of cases nationally) and it is rarely successful (less than 25% of the time).”
While these are the main legal issues, Godfrey points out that the state will, undoubtedly, add many charges against the accused. Given the number of weapons, victims, and bomb making materials, there could be as many as 100 charges.
The federal government could also charge him with federal offenses, he adds, such as bomb making and obtaining weapons via interstate commerce, although this will be further down the line. “It will let the state go first because of the number of victims and the impact on the community,” he adds.