Holmes pleads insanity in Aurora theater massacre

AURORA | James Holmes will plead not guilty by reason of insanity, his lawyers said in a motion Tuesday, setting up a complex legal procedure that experts say will add months, possibly years, to the case.

The move has been expected for several months after Holmes’ lawyers said in court that he was mentally ill and asked a judge to explain their options regarding an insanity defense. A judge entered a standard not guilty plea in March for Holmes, but his lawyers have hinted they could change that plea to an insanity defense.

Tom Sullivan, whose son, Alex, was killed in the attack, said prosecutors have warned victims that an insanity plea would delay the case.

“We’re just mortified that this is the process that we’re going through, and we still have a long way to go,” Sullivan said Tuesday. “I know justice will win out in the end.”

In the two-page motion filed Tuesday, Holmes’ defense said he will formally enter the plea at a hearing Monday.

Prosecutors have said they will seek the death penalty against Holmes, who is accused of killing 12 and wounding more than 50 last summer at the Century Aurora 16 theater.

Experts have said an insanity defense was likely the only route Holmes’ defense could take avoid a death sentance, considering the mountain of evidence police have against Holmes.

But, experts said, the plea will likely mean the case will move through the courts even slower than it has up to this point. Holmes is scheduled for trial in February 2014, but that date could be pushed back as Holmes is sent to the Colorado Mental Health Institute at Pueblo for evaluation.

According to experts, once Holmes is shipped to the state mental hospital, it will likely be at least two months before the first doctor’s evaluation is sent to the court, but in high-profile cases, it can take longer.

The evaluations consist largely of one-on-one interviews between a forensic psychiatrist and the defendant and sometimes medical tests such as CT scans and MRI exams are used.

For doctors, experts say the evaluations can be a challenge because they are trying to determine what the defendant’s mental state was at the time of the crime, not what their mental state is at the time of the interview.

Doctors also look for signs of possible “malingering” — the medical term for faking it.

If Holmes opts not to cooperate with state doctors — something his defense have said is possible because of concerns he could incriminate himself — doctors could have a tough time evaluating him. But, experts said, when defendants choose not to cooperate, doctors will rely on other resources to make their decision, including medical records, videotaped interviews with police, interviews with people who knew the defendant and other resources.

In Holmes’ case, doctors could also rely on a notebook Holmes mailed to his psychiatrist a short time before the shootings. That notebook contains details about the rampage, including crude drawings of his plans, according to media reports.

At Holmes’ preliminary hearing in January, prosecutors detailed his meticulous planning in the days and months leading up to the shooting, seemingly laying the groundwork for an argument that Holmes knew what he was doing when he opened fire inside the packed theater, killing 12 and injuring 70. That planning included several months spent stockpiling his arsenal and multiple trips to the theater to take reconnaissance pictures of the exit doors.

But experts say said planning isn’t evidence of sanity because people can be mentally ill and still have the capacity to make detailed plans.

Holmes will likely be evaluated by multiple doctors, and those doctors could reach different conclusions, including some doctors ruling him sane, while others say he is insane.

In the case of Brian Allen Washington, who was convicted of gunning down an Aurora police detective in 2006, state doctors ruled he was sane, but a doctor hired by the defense ruled him insane. At trial, a jury found Washington sane, but convicted him of a lesser charge than prosecutors sought.

In Holmes’ case, the ultimate decision about whether he was sane during the slayings won’t be up to doctors, but a jury. If they find him guilty, the same jury will be asked to determine Holmes’ sentence.

Holmes was widely expected to plead insanity, given the compelling evidence against him. But his lawyers delayed it for weeks, saying state laws on the death penalty and insanity overlap in ways that could severely hamper his ability to mount a defense against capital punishment.

One of their worries: If Holmes doesn’t cooperate with the doctors, he could be barred from calling witnesses to testify about his mental condition during sentencing. That would make it nearly impossible for his lawyers to use his mental state as an argument against the death penalty.

“If you don’t cooperate during the evaluation phase, you lose the right to call witnesses in your own behalf who could help convince a jury that your life should be spared,” said Karen Steinhauser, an adjunct law professor and former prosecutor.

It’s not clear how cooperation is defined, she said, and the question hasn’t been tested in court since the laws were changed to their present form in the late 1990s.

Colorado law defines insanity as the inability to distinguish right from wrong, caused by a diseased or defective mind. The law specifically excludes depravity, “moral obliquity” and passion caused by anger, hatred or other emotions from being considered insanity.