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the mental health clinic’s threat assessment team to review what he said, but the team declined to do so because he had withdrawn from the school.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.


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