Trial judge defends LWOP sentence for James Holmes

August 24, 2015

NBC News is reporting that Judge Samour, the judge who presided over the James Holmes murder trial (AKA: the Aurora theater shootings) defended the outcome (life without parole) against criticism by the mother of one of the shooting victims. She said the result showed more concern for Holmes than his victims. He said,

“You can’t claim there was no justice because it wasn’t the outcome you expected,” Judge Carlos A. Samour Jr. said in an unusual speech from the bench during Holmes’ formal sentencing hearing for the 2012 attack.

Samour said the jury was fair and impartial and that he tried his utmost to be the same.

“And that’s how you know it was justice,” he said.

Holmes killed twelve and wounded 70 people. He was schizophrenic and delusional when he committed the crimes. Experts testified that he would not have committed the crimes if he were not mentally ill.

I agree with Judge Samour.

Prior to trial, the defense offered to plead guilty to a life-without-parole sentence, but the prosecutor rejected the offer. I have have criticized that decision harshly as a catastrophic waste of time and money because juries are reluctant to sentence the mentally ill to death. The result was predictable. I feel bad for the victims and their families, but this trial and its attendant emotional roller coaster did not need to happen.

 

 


Time to end death penalty prosecutions of the mentally ill

August 9, 2015

In light of the life-without-parole sentences imposed on Theodore Kaczynski (the Unabomber), Jared Loughner (who shot and killed Congresswoman Gabriele Giffords and a federal judge) and James Eagan Holmes (who shot and killed 12 people at a movie theater in Aurora, Colorado), that “mark the progress of a maturing society,” I believe our society’s “evolving standards of decency” have reached a point where Congress and our state legislatures should pass legislation that prohibits executing the mentally ill for murders they committed. At long last, have we not reached the point where reasonable and thoughtful people can conclude that executing the mentally ill violates the Eighth Amendment prohibition against cruel and unusual punishment?

In Trop v. Dulles, 356 U.S. 86, 100-101 (1958), Chief Justice Earl Warren wrote,

This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U.S. 349. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

(Emphasis added)

Each of these men committed atrocious and heinous multiple murders. Each of them was schizophrenic and delusional when they committed the murders. When a person kills another human being while gripped by delusions caused by a severe mental illness such as schizophrenia, it makes no sense to hold that person accountable for what he did by executing him. Indeed, such an execution serves only a desire for vengeance, which is not a legitimate societal interest. Moreover, since they have lost the capacity to reason through no fault of their own, it certainly does not deter other mentally ill people from killing.

I previously warned that the James Holmes death penalty trial is a colossal waste of time and money. Let us join together and vow to never again make this mistake.


Jury sentences James Holmes to life without parole

August 8, 2015

CTV reports,

Twelve jurors failed to agree on a death sentence for Colorado theatre shooter James Holmes, prompting shocked sobs from victims, police officers and his own mother. Holmes will instead spend the rest of his life in prison for fatally shooting 12 people.

The nine women and three men said they could not reach a unanimous verdict on each murder count. That automatically eliminates the death penalty for Holmes, who blamed the killings on mental illness.

/snip/

One juror told reporters outside court that there was a single juror who refused to give Holmes the death penalty and two others who were wavering. The key issue was Holmes’ mental illness.

“All the jurors feel so much empathy for the victims. It’s a tragedy,” the juror said, refusing to give her name. “It’s a devastating result no matter what. I am deeply, deeply sorry — that isn’t even the word.”

The verdict was a surprise because a week ago (before the victim impact testimony) the jury decided that the mitigation evidence did not outweigh the aggravation evidence. I was surprised since that is the legal test for deciding whether to impose the death penalty or life without parole. I suspect the change might be the due to the difference in believing you can kill someone versus actually doing it. Someone on that jury could not pull the proverbial trigger.

A month ago, I predicted this result when I wrote, James Holmes death penalty trial is a colossal waste of time and money.

The prosecution is seeking the death penalty even though there is no question that Holmes was mentally ill but legally sane at the time of the shootings — one psychiatrist diagnosed him as suffering from schizotypal disorder while a second psychiatrist diagnosed him as suffering from shizoaffective disorder — and he offered to plead guilty to a life-without-parole sentence. After the prosecution rejected the defense offer, Holmes changed his plea to not guilty by reason of insanity.

/snip/

We who have experience representing clients in death penalty cases* refer to the guilt phase in a slam dunk case like this as a slow-motion guilty plea. That is, when we lack a defense, instead of pleading guilty, we use the guilt phase to introduce evidence that mitigates the seriousness of the offense. Holmes’s insanity defense is doomed because he admitted to police that he knew killing was wrong. But there is no dispute that he was mentally ill. While not a defense, mental illness is a powerful mitigating factor and, as I’ve said previously, I think the jury will likely vote for a life-without-parole sentence after the penalty phase for the simple reason that killing somebody who was mentally ill through no fault of their own is morally and ethically repugnant to most people.

I’ve said this before and I will say it again, this trial has been a colossal waste of taxpayer time and money.

*I was a death penalty lawyer until I retired in 2005.

 


Jury signals that it will sentence James Holmes to death in theater shooting case

August 3, 2015

After less than three hours of deliberations, the jury in the James Holmes murder trial unanimously decided today that the evidence the defense presented in mitigation last week regarding his schizophrenia at the time he shot and killed 12 people and wounded 70 at the midnight showing of a new Batman film in Aurora, CO did not outweigh the evidence presented by the prosecution in aggravation about the nature of the crime.

The verdict shocked me because schizophrenia is a debilitating mental illness characterized by delusional thinking that compromises a person’s ability to perceive reality accurately and react to it in a rational matter. People do not choose to be schizophrenic. Patients suffering from schizophrenia have difficulty managing their lives, even if they take their anti-psychotic medicine as prescribed. Many end up homeless and untreated until they are arrested by police and taken to jail for minor property offenses like trespassing or shoplifting. Only a small percentage of schizophrenics commit violent crimes. As in this case, there is no reason to think they would have committed the crime if they were not mentally ill.

Court will resume tomorrow to hear victim-impact testimony. The prosecution plans to call 15 witnesses to testify regarding how their lives have been impacted by the shootings. Given the verdict today, I think the jury is going to sentence him to death, regardless what the witnesses say.

This is one of those days when I feel like I do not know this country anymore.


James Holmes death penalty trial is a colossal waste of time and money

July 11, 2015

James Eagan Holmes was arrested on July 20, 2012 shortly after killing 12 and wounding 70 people at the midnight premier of a new Batman film in the Century 16 movie theater in Aurora, CO. He was eventually charged with 152 crimes, including 12 counts of premeditated murder, 12 counts of depraved heart murder (charged in the alternative) and 70 counts of attempted murder. The prosecution is seeking the death penalty even though there is no question that Holmes was mentally ill but legally sane at the time of the shootings — one psychiatrist diagnosed him as suffering from schizotypal disorder while a second psychiatrist diagnosed him as suffering from shizoaffective disorder — and he offered to plead guilty to a life-without-parole sentence. After the prosecution rejected the defense offer, Holmes changed his plea to not guilty by reason of insanity. The trial began with jury selection on January 20, 2015. Both sides rested yesterday. Closing arguments for the guilt phase are scheduled to start on Tuesday.

We who have experience representing clients in death penalty cases* refer to the guilt phase in a slam dunk case like this as a slow-motion guilty plea. That is, when we lack a defense, instead of pleading guilty, we use the guilt phase to introduce evidence that mitigates the seriousness of the offense. Holmes’s insanity defense is doomed because he admitted to police that he knew killing was wrong. But there is no dispute that he was mentally ill. While not a defense, mental illness is a powerful mitigating factor and, as I’ve said previously, I think the jury will likely vote for a life-without-parole sentence after the penalty phase for the simple reason that killing somebody who was mentally ill through no fault of their own is morally and ethically repugnant to most people.

I’ve said this before and I will say it again, this trial has been a colossal waste of taxpayer time and money.

*I was a death penalty lawyer until I retired in 2005.


Judge disqualifies three jurors during James Holmes death penalty trial

June 11, 2015

Judge Carlos A. Samour, Jr., dismissed three jurors for misconduct yesterday in the James Holmes murder trial. Holmes is accused of shooting to death 12 and injuring 70 at a movie theater in Aurora, Colorado on July 20, 2012 during the premiere showing of a new Batman film. The prosecution is seeking the death penalty even though he is pleading insanity and was severely mentally ill at the time of the mass shooting.

The dismissal is unlikely to affect the legitimacy of the trial because the judge seated 24 jurors (19 women and 5 men). The jury that will decide the cased will be composed of 12 of those jurors. The rest will be alternates.

The hullabaloo that precipitated the dismissal started with a phone call to a juror from her husband during a smoke break for the jurors. The LA Times describes what happened.

The jury problems started when Juror 872’s phone rang during a break last week. Although she and her husband knew that she was not allowed to discuss the case, her husband called to ask about news reports that one of the attorneys had tweeted about the case from the courtroom.

Her phone was on speaker, and she was one of five people on the court’s patio, where jurors gather to smoke.

This is what 872 said under questioning by Samour: “Last Thursday or Friday, my husband called me and asked me a question about what he saw on Facebook about Twitter. He was on speaker…. He asked me if I knew who the lawyer was.

“I said, ‘Why?’ He said, ‘That idiot was tweeting on Facebook.’ He knows I’m not supposed to talk about it. I don’t look at it in the paper…. Him and I got into a big argument about it. It just happened to be at lunch.”

Juror 872’s husband also asked her whether she knew who “Brauchler” is, referring to Arapahoe County Dist. Atty. George H. Brauchler, who is the main prosecutor in the case and who sent the offending tweet.

“I said, ‘He’s one of the lawyers,'” 872 recounted in court Tuesday, as the rest of the jurors waited outside of Division 201. “He said, ‘Well that idiot tweeted during the testimony.’ He didn’t say what he tweeted.”

On Thursday, Brauchler tweeted, “I agree on the video. I hope the jury thinks so too.” According to the Denver Post, he later apologized, explained that he thought he was sending a text, not tweeting, and took the offending post down quickly.

The video is a reference to the 22 hour interview of Mr. Holmes by a psychiatrist that was played in court. Holmes admitted during the interview that he knew he was breaking the law when he opened fire on the audience. His admission means he was not legally insane, although that is yet to be determined by the jury.

As anyone who served on a jury knows, jurors are prohibited from discussing the case with anyone, including other jurors, during the trial. The phone call and the resulting discussion violated that rule and the rest, as they say, is history.


Holmes: Why the Prosecution is Waiting to Decide Whether to Seek the Death Penalty

August 4, 2012

James Eagan Holmes has been charged with 24 counts of Murder in the First Degree and 116 counts of attempted murder for killing 12 people and wounding 58 during a shooting spree inside a movie theater at the midnight showing of the new Batman film, Dark Knight Rising.

Facts are difficult to come by because the Court “has issued a gag order on lawyers and law enforcement, sealing the court file and barring the University of Colorado, Denver from releasing public records relating to Holmes’ year there as a neuroscience graduate student.”

I have written two articles about the case here and here reviewing the potential civil liability of the University of Colorado to the victims of the shooting spree for the alleged failure of its employees, psychiatrist Dr. Lynne Fenton and the members of the university’s threat assessment team to warn the police about a possible threat to harm people that Mr. Holmes may have expressed to Dr. Fenton on or about the day that he formally withdrew in early June as a student in a Ph.D. program in neuroscience.

Probably due to the Court’s gag order, the school has not yet disclosed the specifics of Mr. Holmes’s statement to Dr. Fenton. All that we know so far is that she attempted to convene the mental health clinic’s threat assessment team to review what he said, but the team declined to do so because he had withdrawn from the school.

As I explained in my two articles, given the restrictive and limiting language in the Colorado statute, I believe it is unlikely that the university will be held liable to the victims of the shooting for failing to warn the police about Mr. Holmes. We will have to wait and see what Mr. Holmes said to Dr. Fenton before we can definitively wrap up this discussion.

Now I want to discuss a different subject in the case; namely, the death penalty. The prosecution has charged Mr. Holmes with two murder counts per homicide victim. The two charges contain different elements and basically allege two different ways to commit the same offense. CBS News explains:

Holmes is facing two separate charges for each person killed or injured. The second charge for each alleges that in killing or injuring, Holmes evidenced “an attitude of universal malice manifesting extreme indifference to the value of human life generally.”

The prosecution announced shortly after filing charges against Mr. Holmes, that it has not yet decided whether it will seek the death penalty, if Mr. Holmes is convicted of murder.

Translated into the language we speak, that means it is waiting for the defense to complete its mitigation investigation and submit its report to the prosecution to consider in determining whether to file a notice that it will seek the death penalty.

Mitigation evidence is any evidence about the defendant or the crime he committed that in fairness or in mercy calls for a sentence of less than death.

Mr. Holmes appears to suffer from a serious mental illness, possibly a type of schizophrenia. The defense likely has assembled a team of mental health experts who are testing and evaluating his competency to stand trial and well as his mental functioning. No doubt they have been reaching far back into his life collecting all existing school, medical and mental health records.

Mitigation investigation has developed into an art form as well as a necessary and highly specialized skill over the course of the past 30 years. The most common reason for appellate court reversals of death sentences has been ineffective assistance of defense counsel for failing to conduct a thorough mitigation investigation.

A diagnosis of schizophrenia would be powerful mitigating evidence, even if it did not establish legal insanity, because schizophrenia is a debilitating mental disease over which a person has little or no control. Therefore, traditional arguments for the death penalty that are based on the idea of holding people accountable for their actions by sentencing them to death, lose power in the face of evidence that the person is delusional, not like others, and incapable of making responsible decisions on a regular basis. Most people recognize that there is something fundamentally unfair about sentencing someone to death who lacked the capacity to make rational decisions.

Mr. Holmes may also satisfy the test for legal insanity. That is, that he suffers from a mental disease or defect such that he cannot distinguish between right and wrong and conform his conduct to the requirements of law. Insanity is another mitigating factor.

Regardless of his mental condition, however, he committed horrific acts that required sufficient capacity to plan and carry out a moderately complicated scheme.

When the prosecution receives the defense mitigation report, it will submit it to its own panel of mental health experts for review and comment.

Eventually, both sides will meet and engage in serious discussions regarding whether a mentally ill man should be executed or spend the rest of his life in prison without possibility of parole.

Whether the prosecution ultimately decides to file the notice that it will seek the death penalty will depend on the outcome of those discussions and the thoroughness and quality of the defense mitigation report.


Is the University of Colorado Potentially Liable to Holmes’s Victims?

August 2, 2012

Today we are going to revisit the James Eaton Holmes case and take a look at the potential civil liability of the University of Colorado to the families of the 12 people he allegedly shot and killed and the wounded survivors of the mass shooting in Aurora, CO at the midnight opening of the Batman premiere.

Holmes is alleged to have appeared in the theater shortly after the film began dressed as Batman’s arch enemy, the Joker, complete with bright red and orange hair. The people in the audience assumed they were watching a publicity stunt, but they soon realized they were mistaken as Holmes produced a fully automatic AR-15 together with several handguns and began shooting into the audience killing 12 people and wounding 58.

Police arrested Holmes in the theater parking lot without resistance. He has reportedly refused to give a statement, although leaks out of the jail where he is being held indicate that he claims not to recall the incident.

On Monday prosecutors charged him with 24 counts of first degree murder and 116 counts of assault. The prosecutors have stated that they are considering whether to seek the death penalty, if he is convicted.

No one appears to dispute that Holmes is mentally ill and there is a good possibility that he may not be competent to stand trial, assuming he has no recollection of the incident and cannot assist his lawyers to represent him.

Prior to the incident, Holmes withdrew from the neuroscience doctoral program at the University of Colorado School of Medicine. His decision to withdraw was apparently related to the recent onset of schizophrenia. He was under the care of Dr. Lynn Fenton, a psychiatrist on the medical school faculty specializing in the treatment of schizophrenia. She is also in charge of the Student Mental Health Clinic at the University of Colorado.

Reuters is reporting today:

Dr. Lynne Fenton notified a so-called threat-assessment team at the University of Colorado, Denver, in early June that she was alarmed by the behavior of James Holmes, but no further action was taken, the Denver Post reported, citing an anonymous source. Reuters could not immediately confirm the report.

If this report is confirmed, the University of Colorado may be liable to the families of the 12 homicide victims for their wrongful deaths and to the 58 shooting victims who survived the rampage.

In Tarasoff v. Regents of the University of California, 551 P.2d 334 (1976), the California Supreme Court created a new cause of action in tort for the negligent failure of a mental health professional to notify the police and potential victim regarding a threat to harm or kill communicated by a patient to the mental health professional. Before Tarasoff, mental health professionals were prohibited by the therapist/patient privilege of confidentiality from disclosing threats to harm or kill others uttered by patients during treatment.

The unique facts and equities of Tarasoff compelled a majority of the California Supreme Court to ignore legal precedent and create a new cause of action against mental health professionals founded in negligence to compensate victims of violence committed by a patient under the care and treatment of a mental health professional who failed to warn the police and the victim of a threat to harm the victim uttered by the patient.

Yes, my friends. Tarasoff is an example of a supreme court performing a legislative function instead of deferring to the state legislature and allowing it to use the legislative process to conduct hearings on proposed legislation with witness testimony in order to craft a new law that considers all the possible effects of the new legislation and avoids creating more problems than it solves. That is the theoretical basis supporting the idea that the legislature should legislate expressing the will of the majority of the people rather than a supreme court that cannot hold hearings and call witnesses. As a practical matter, however, the legislative bodies of the states and the federal government have all but ceased to function and there is little hope or confidence that they will come up with workable solutions to vexing problems.

In Tarasoff,

An exchange student by the name of Poddar met another student, Tarasoff, at UC Berkeley. During one encounter, Tarasoff kissed Poddar. Poddar took the affections to be very serious, and once Tarasoff learned of Poddar’s feelings, she immediately told him that she was involved with other men and not interested in pursuing a serious relationship. As a result, Poddar became depressed, resentful, and stalked Tarasoff. Once Tarasoff left the country for a study session abroad, his condition improved, and he sought counseling from a psychologist at UC Berkeley. During their sessions, Poddar admitted his intent to kill Tarasoff. The psychologist, believing Poddar to be suffering from paranoid schizophrenia, requested that campus police detain Poddar and that he be civilly committed as he was a danger to others. Poddar was detained, but appearing rational, was released. Tarasoff then returned and Poddar stopped seeing the psychologist. Tarasoff was not warned of the threat posed by Poddar and eventually stabbed and killed her. Tarasoff’s parents sued the psychologist and other University employees asserting that they had a duty to warn Tarasoff or her parents of the danger she was in, and they were negligent in releasing Poddar without providing a warning.

The Court held that,

Therapists and other mental health professionals may not escape liability merely because the victim was not their patient. When a mental health professional determines that a patient presents a serious danger of violence to another, he or she is obligated to use reasonable care to protect the intended victim from the potential danger. This obligation, this duty, may require warning the police, the intended victims, or others likely to warn the victims of the danger.

A majority of the State Supreme Courts have followed Tarasoff and many states have enacted legislation that limits the potential liability of a mental health professional for a Tarasoff claim.

I do not know if Colorado is a Tarasoff state, as I do not have access to Westlaw or Lexis. Even if it is not, one can reasonably expect that most of the families of the homicide victims will be consulting lawyers regarding the possibility of filing a lawsuit against the University of Colorado for the wrongful deaths of their family members. The 58 surviving victims likely will be doing the same thing.

The Colorado Supreme Court could always join the other state supreme courts by adopting the Tarasoff rule,assuming it has not already done so.

Lawyers across the State of Colorado will be following the developments in this new story with considerable interest hoping for a chance at a big payday.

Let us assume for a moment that we are lawyers in Colorado.

We are going to need additional information to evaluate the potential exposure of the University of Colorado and the probability of success.

This is what we need to know to determine whether the the University of Colorado has any potential exposure to liability.

1. What did Holmes say or do that caused Dr. Fenton to attempt to assemble a crisis intervention team? This is the clarity, specificity and seriousness of the threat requirement. There is no duty to protect unless a threat to harm is clearly expressed and there can be no breach of duty unless there is a duty.

2. Did he express a clear threat to harm or kill a reasonably identifiable victim or group of victims and, if so, what was the threat and who was it against? This is the reasonably identifiable victim requirement. There is no duty to protect unidentifiable victims.

3. Did Dr. Fenton or any other mental health professional at the university attempt to involuntarily commit Holmes to a locked mental ward for a 72 hour period as a likely danger to himself or to others in order to evaluate his mental health and assess more fully whether he was a threat to himself or to others? This is typically a precautionary step that should be taken to assess the patient’s mental health and the seriousness of the threat in a secure setting where the patient cannot harm himself or others.

4. If not, why not? Depending on the answers to the first two questions, a failure to involuntarily commit a patient who is a danger to himself and to others may be a violation of the duty to protect the patient and others.

5. Was a crisis intervention team assembled pursuant to Dr. Fenton’s recommendation? If not, why not?

6. Did the crisis intervention team meet with Howell?

7. What was the outcome of that meeting? That is, what recommendations were made and what action was taken, if any?

You are not going to want to sue the University of Colorado, if you cannot establish a legal duty to protect, a breach of that duty, injuries proximately caused by the breach, and damages.

We’ll keep an eye on this case as it develops.


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