Multitude of courts could weigh in on Holmes case in Aurora theater shooting

AURORA | The James Holmes trial scheduled for October could be in for a lengthy delay as the defense team appeals the case to the Colorado Supreme Court.

Last week, Holmes’ lawyers said they plan to ask the state’s highest court to reconsider a ruling by the trial judge that said Holmes should undergo a second psychiatric evaluation. That appeal will likely be filed before the end of the month, defense attorneys wrote.

It is unclear what doctors found in the first evaluation because the results have been sealed from the public and hearings on the issue have been closed. But the prosecution asked for the second evaluation, a sign that experts say points to state doctors likely having found Holmes insane, at least to some degree. 

Appeals to the Supreme Court before a trial like this one are rare, experts say. 

Karen Steinhauser, a former prosecutor and defense attorney now teaching law at the University of Denver, said Holmes’ case will largely be on hold while the appeal is before the court, but the length of the delay could vary. 

If the court opts not to hear the case, that decision will likely come down with just a few days of the defense formally submitting the appeal, she said. In that scenario, the judge could send Holmes for his second evaluation and the case could get moving again within a few weeks.

But if the court opts to hear the case, it will likely be a while before they hand down a ruling and the case goes forward again, she said. 

“That can take months for that whole process,” she said.

The issue before the court will be whether a judge can order a defendant to undergo a second evaluation like this, Steinhauser said. The whole scenario — from prosecutors asking for a second evaluation to the judge ordering one — is rare, she said, so it may be one the high court wants to weigh in on. 

“There are a lot of unique things about this case and about what has happened with regard to the evaluation,” she said. 

At the same time, Holmes’ defense team is asking the judge to move the trial out of Arapahoe County, where they say they can’t get a fair trial because of excessive media coverage. 

Samour hasn’t ruled on that request yet, but prosecutors this week objected to any move. 

In a 75-page motion filed April 28 and unsealed April 29, prosecutors said the defense has not proved that Holmes would not be able to get a fair jury in the county where the crimes occurred. 

Prosecutors also said it wouldn’t be fair to the victims if the trial was moved, forcing them to travel farther away from home to watch the trial. 

“The defendant chose the venue in this case when he committed his crimes,” prosecutors wrote. “The victims are afforded rights to justice, due process, fairness, respect and dignity by mandate of Colorado law.”

The defense previously argued that intense media coverage of the July 20 attack and subsequent court hearings made it impossible for Holmes to get a fair trial in Arapahoe County. They also argued that because of the far-reaching effects of the crime — from local hospitals who cared for the wounded to local schools that dealt with the fallout — too many people in Arapahoe County have been touched by the case.

But prosecutors said those concerns are over-blown and that there isn’t a precedent for moving a trial like this one.

The prosecution also said there are studies that prove juries aren’t swayed by extensive media coverage of high-profile cases. 

Judge Carlos A. Samour Jr. has not yet ruled on the defense’s request for a change of venue. 

Holmes is accused of killing 12 and wounding dozens more during a July 2012 shooting rampage at an Aurora theater. He has pleaded not guilty by reason of insanity and prosecutors are seeking the death penalty.