Accused Movie Shooter May Face Exam If He Pleads Insanity

By Joel Rosenblatt & Jeff Kass - Mar 12, 2013 12:09 AM ET

James Holmes, the accused Colorado movie theater shooting suspect who might face the death penalty if convicted, may be the first such defendant to challenge the constitutionality of the state’s insanity defense laws.

Arapahoe County District Court Judge William Sylvester in Centennial, Colorado, said yesterday in an order advising Holmes that, if he pleads not guilty by reason of insanity at his arraignment today, he would be required to submit to a mental examination. Sylvester also said that he would set a trial date after getting the report.

A trial would probably be delayed by challenges by Holmes’s lawyers to Colorado laws allowing prosecutors to conduct interviews while a defendant is under the influence of a so-called truth serum, said Karen Steinhauser, a former Denver prosecutor now in private practice. Defense lawyers have also challenged a provision of the law blocking Holmes from calling witnesses to present evidence about his mental condition if he doesn’t cooperate with court-appointed psychiatrists, she said.

Sylvester previously decided that the constitutional challenges to the law aren’t before the court now and declined to rule on them. Still, those issues are likely to be litigated if prosecutors seek the death penalty, Steinhauser said.

“We have not had an insanity plea in a case in which the death penalty has been sought,” Steinhauser said. Prosecutors have 63 days from today’s arraignment to decide whether they’ll seek the death penalty, she said.

Death Penalty

“Once that decision is made, I think the defense will ask for reconsideration of the issues that were raised in their original motions pertaining to the death penalty sentencing phase,” she said.

Holmes’s lawyers said in court filings that he was considering pleading not guilty by reason of insanity. If convicted of first-degree murder in the July rampage that left 12 dead, he may face the death penalty.

Steinhauser said Holmes’s lawyers may still argue that he isn’t competent to stand trial, which would put the case on hold until he’s evaluated.

Lisa Pinto, a spokeswoman for the Arapahoe County District Attorney’s Office, declined to comment on the arraignment. Doug Wilson, head of Colorado’s public defender’s office, didn’t immediately return a call yesterday seeking comment on the case.

Sylvester ruled in January that the government established probable cause that Holmes committed the crimes of which he’s accused. Holmes, who studied neuroscience at theUniversity of Colorado, Denver, is charged with 166 counts, including murder and attempted murder.

‘Narcoanalytic Interview’

According to the judge’s ruling yesterday, prosecutors may require Holmes to submit to a “narcoanalytic interview” under the influence of “medically appropriate” drugs.

Such drugs can enable a person to recall something they’re having difficulty remembering, Steinhauser said. Holmes’s lawyers have questioned whether his refusal to take the drugs would amount to non-cooperation.

If Holmes fails to cooperate, Sylvester said he will bar his lawyers from calling a psychiatrist or any other witness to present evidence about his mental condition. Any refusal to cooperate may result in any confessions, admissions and circumstantial evidence from the alleged killing being used as evidence, according to the order.

Holmes’s lawyers have raised “very legitimate issues” about Colorado law governing a guilty plea by reason of insanity, Steinhauser said. “Can you really preclude the defense from calling witnesses” who may offer testimony that might save a defendant’s life, she asked.

The case is People v. Holmes, 12-cr-01522, 18th Judicial District Court, Colorado (Centennial).

To contact the reporter on this story: Joel Rosenblatt in San Francisco atjrosenblatt@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net