“There are some crimes that just scream out crazy,” said attorney David Lane, a Denver-based attorney not currently on the case.
“You know this is not a contract killing for money, this is not killing witnesses, you know those kinds of crimes you can understand rationally how people go out and commit those crimes.”
Holmes was caught just outside the theater dressed in clothing matching the description of the killer and with weapons. That part of the case seems cut and dry.
Now the motions begin.
“You can expect a bevy of motions from the defense regarding his mental health and other issues,” said former Denver District Attorney Norm Early.
In Colorado, a brief version of the law covering insanity says this: “A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong…”
At the core of the case will be Holmes’ state of mind during the approximately 90 seconds when he is accused of opening fire inside the Century 16 Theater.
“Now you can use evidence of what happened before and evidence of what happened afterwards to make a determination as to whether you really believe that this man was insane at the time of the crimes,” said Early.
He believes there’s evidence Holmes knew right from wrong when he made a remark to officers who arrested him that made police believe there were dangers in Holmes’ booby trapped apartment.
“It was an act of clarity but it also was an act that showed he knew the difference between right and wrong. And there may be other things that show he didn’t know the difference between right and wrong.”
“You can be off the wall crazy, but if you still understand the difference between right and wrong you can still be convicted,” pointed out Lane.
“You evaluate his condition, his history, whether he has any history of any treatment,” said David Kaplan, another attorney who has worked on similar cases.
If the judge agrees there’s a question over sanity, he will likely order Holmes be examined at the state institution in Pueblo.
The state could come to the conclusion that Holmes was sane at the time of the crime. Then the prosecution is almost certain to pursue trial. The defense can hire its own experts. The results of those exams aren’t necessarily evidence at trial.
If state experts conclude Holmes was not sane at the time of the crime, the prosecution can call for a hearing with a judge and the defense, agree that he was not guilty by reason of insanity and take the judge’s order.
That order would almost certainly be that Holmes be sent to the state facility at Pueblo. He’d be confined there until he was deemed mentally fit enough for release.
“That’s going to be for treatment and professionals and something that takes a very, very long time if ever,” said Kaplan.
Sometimes prosecutors will still pursue a case. The district attorney in Jefferson County, Scott Storey still took Bruco Eastwood to trail last year for the shootings of two students at Deer Creek Middle School in 2010. State experts said Eastwood was schizophrenic and likely not sane when he opened fire. The jury agreed with the state experts, not the prosecution and ruled Eastwood not guilty by reason of insanity. Eastwood was sent to Pueblo for treatment.
The prosecution and defense could also agree to a plea deal. If Holmes pleads guilty and is sent to prison, it is possible the Department of Corrections would send him to Pueblo anyway, because the DOC might not be able to handle someone with severe mental illness – if that’s the diagnosis.