The next phase of the Aurora theater shooting trial beginning this week will be unlike anything jurors have seen thus far.
After almost two months of testimony from more than 200 witnesses called by prosecutors, experts say that lawyers for James Holmes will focus almost exclusively on their client’s mental state.
Karen Steinhauser, a former prosecutor now teaching law at University of Denver, says that what happened in the theater that night will seem almost like an afterthought compared to how the prosecution presented its case.
The prosecution called four different psychiatrists and several people who knew Holmes well in an effort to show that Holmes was sane, but they also called several witnesses and survivors who were inside the theater that night.
Holmes’ defense team opted not to cross examine many of those witnesses, and Steinhauser said that shows they aren’t interested in arguing what happened in the theater.
“They have shown by not cross-examining any of the victims that what occurred is not the issue, it’s what his mental state was,” she said.
In contrast, Steinhauser believes that when the defense begins laying out their case, there’s a good chance most of their witnesses will be cross-examined by prosecutors.
“They are contesting the issue of sanity,” she said. “So the prosecution is absolutely going to be cross-examining the witnesses,” she said.
The defense’s case also will contrast with the prosecution in that it likely will be much shorter.
In court last week, public defender Dan King said he expected the defense would wrap their case in about two weeks. That’s about a quarter of the time prosecutors used, but more than what was used in one of the most-recent Arapahoe County death penalty cases. When prosecutors there sought the death penalty against Robert Ray, Ray’s defense team opted not to call any witnesses during the guilt phase of the trial. Instead, they told jurors during opening arguments, their case would come out completely during the cross examination of prosecution witnesses.
Steinhauser said that it isn’t rare for the defense to not call any witnesses, but in a sanity case where they are trying to show their client was insane, the defense will focus on expert testimony.
The defense already has said two of their witnesses examined Holmes and ruled him insane. The defense experts also said Holmes had schizophrenia, but the prosecution’s experts said he only had an associated ailment but was not quite schizophrenic.
Prosecutors already tried to poke holes in some of the defense’s expert testimony during opening arguments.
Steinhauser said the defense will also argue that their experts saw Holmes closer to the attack, before his heavy regimen of anti-psychotic drugs kicked in.
“Perhaps they will try to argue that the experts that they have saw the defendant sooner after the events that occurred,” she said.
One of the prosecution’s witness, Dr. William Reid, interviewed Holmes a full two years after the attack and ruled him sane, though Reid said Holmes had a mental illness similar to schizophrenia.
Holmes is accused of killing 12 and wounding 70 more during the July 2012 attack at the Century 16 movie theater. Prosecutors say he opened fire on a packed midnight showing after spending months amassing an arsenal and meticulously choosing which theater to attack.
The attack came just more than a month after Holmes dropped out of graduate school at the University of Colorado Anschutz Medical Campus, a failure that prosecutors say led to Holmes wanting to lash out.
Holmes’ defense team will argue Holmes was insane at the time of the shooting and had been losing touch with reality in the months before the attack.