by Patrick H. Moore

In early June, Judge Carlos A. Samour, Jr. allowed murder suspect James Holmes — who killed 12 and wounded 59 victims at the Aurora Theater shooting — to change his plea to not guilty by reason of insanity. An independent mental health evaluation has been ordered and Holmes’ next stop is the state hospital in Pueblo, Colorado. The sanity examination could last months. In an NBC News article, Tracy Conner provides the responses to the news of two of the victims’ mothers:

“I don’t think any of the families were surprised,” said Sandy Phillips, mother of Jessica Ghawi, who was one of 12 people killed in an Aurora movie theater while attending a midnight Batman screening last summer.

“Do any of us think he’s insane? No, absolutely not. He was way too meticulous to be insane. He’s mean. He’s evil. But he’s not insane.”

jamesBefore interviewing Holmes, the doctors must review a mountain of evidence in the case. The prosecutors have up to 3,000 potential witnesses, 2,000 pieces of physical evidence, and 40,000 pages of paperwork.

The judge also ruled that prosecutors can include one more item to their file: a notebook Holmes sent to a University of Colorado psychiatrist before the shooting that reportedly contains violent plans.

When interviewed, Jerri Jackson, the mother of victim Matt McQuinn, said she is curious to learn what’s in the notebook, including any mention of motive, but noted it won’t answer the question that torments her most.

“One thing I’ve always wondered is what Matt’s last thoughts were,” she said. “Did he think, ‘I’m going to die’? That’s something I’ll never know.”

According to Karen Steinhauser, a former prosecutor who has been closely following the case, Holmes will need to be cooperative with the state examiners if he wants to mount an insanity defense. If he chooses not to cooperate in the evaluation phase, his lawyers will be barred from calling their own mental-health experts to the stand during the trial or the penalty phase.

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We’ve all heard of the Insanity Defense but how does it actually work? Is it a valid defense? Will it keep you out of prison if you shoot and kill someone while under the influence of insanity?

james3These questions are particularly important in the case of James Holmes due to the simple fact that his is a Colorado case. In most states, if a defendant is claiming innocence by reason of insanity, he/she and the defense team must prove conclusively that the defendant was insane at the time of the crime.

In Colorado, however, the Prosecution must prove that a defendant claiming insanity as a defense was sane when he did the dirty deed. The Holmes prosecutors face an even harder task because they must prove Holmes was sane without having their own experts examine him.

“It’s burden of proof on steroids,” said Marcellus McRae, a former federal prosecutor now in private trial attorney in Los Angeles. “It’s totally subjective. It’s not like proving somebody pulled the trigger. That’s objective.”

Clearly, the case against Holmes promises to focus on his mental health. And just imagine the outcry of rage that will ensue in the unlikely occurrence that Holmes is somehow acquitted based on his mental state at the time he committed the crime.

Although we cannot predict what will happen in the Holmes trial, certain previous cases in which the insanity defense was invoked are of interest, such as the case of John Hinckley, Jr., the man who shot former President Reagan:



james5In 1981, John Hinckley Jr. shot then U.S. President Ronald Reagan and three others: a secret service agent, a Washington police officer, and Reagan’s press secretary James Brady. As is well-known, Hinckley claimed that he was trying to impress the actress Jodie Foster and described the incident in a letter to The New York Times as “the greatest love offering in the history of the world. … At one time Miss Foster was a star and I was the insignificant fan. Now everything is changed. I am Napoleon and she is Josephine. I am Romeo and she is Juliet.”

The jury found Hinckley not guilty by reason of insanity. There public outcry was fierce. Huge numbers of Americans were incensed that an obviously guilty man was able to escape punishment. There were widespread calls to abolish the insanity-plea laws.



james6Congress naturally got involved which led to Insanity Defense Reform Act of 1984 — which made it tougher to win on an insanity defense. The “volitional” prong of the old law, which in theory excused a defendant such as Hinckley who lacked the capacity to control his behavior, was eliminated. In order to qualify for the insanity defense under the new rule, the defendant must show that his mental disease or defect is “severe.”

Congress also adopted a number of provisions that toughened procedural barriers to a successful insanity defense. Before Hinckley, the burden of proof in federal cases was on the prosecution to prove beyond a reasonable doubt that a defendant was sane. The post-Hinckley reform legislation shifted the burden to the defendant to prove with clear and convincing evidence that he was legally insane at the time of the crime. The scope of expert psychiatric testimony was severely limited, and stricter procedures governing the hospitalization and release of insanity acquittees were adopted.



Following the lead of Congress, during the 1980’s and 1990’s, more than 30 states made changes to their insanity-defense statutes that shifted the burden and standard of proof in ways that made it far more difficult to sustain an insanity plea. In addition, many states enacted laws providing for more restrictive confinement options for those acquitted by reason of insanity. Utah, Montana, and Idaho abolished the Insanity Defense altogether.



james7And then, of course, to make the issue even more confusing, the “guilty but mentally ill” (GBMI) verdict became law in many states. This is a kind of hybrid alternative to an acquittal by reason of insanity, not unlike the Rusty Sneiderman verdict. A defendant who receives a GBMI verdict is still considered legally guilty, but since he is mentally ill, he is entitled to receive mental health treatment while institutionalized. The Catch-22 here is if his symptoms subside, he is returned to a regular correctional facility to serve the remainder of his sentence. By 2000, at least 20 states had instituted GBMI provisions.



james8If the jury finds Holmes not guilty by reason of insanity, he would avoid prison or execution. Even though he could be sent to the state mental hospital indefinitely, he might be released someday if doctors find he is no longer insane. But under Colorado law, an insanity plea means prosecutors would have access to potentially incriminating evidence such as mental health records.

Well, it’s a pretty sure bet that the odds are against James Holmes ever being released from confinement. But, given the state of the law in Colorado, there’s no guarantee that the prosecution will succeed in proving that Holmes was sane at the time of the shootings. This one is going to be interesting. And considering the fact that Holmes was once a promising Ph.D. candidate, one can’t help but wonder whether, as he was busily stockpiling his weapons, he took time to peruse the Colorado Insanity Defense standards…



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