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Holmes Lawyers Try To Clear Path For Insanity Plea

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James Holmes in court on Jan. 8, 2012. (credit: Bill Robles)

James Holmes in court on Jan. 8, 2012. (credit: Bill Robles)

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CENTENNIAL, Colo. (AP) — Lawyers for Colorado theater shooting suspect James Holmes asked a judge Thursday to clear away their legal questions so Holmes can plead not guilty by reason of insanity.

They argued state laws on the insanity plea and the death penalty work in combination to violate Holmes’ constitutional rights.

They want the judge to address the questions before Holmes agrees to conditions he must accept to enter an insanity plea.

Prosecutors argued the laws are fair and their principles have been upheld by appeals courts. They also said it’s too early to consider the matter.

Judge Carlos Samour Jr. said he would announce before May 31 whether and how he will rule on the questions.

Holmes is accused of opening fire on a packed movie theater in the Denver suburb of Aurora in July, killing 12 people and injuring 70. He faces multiple counts of murder and attempted murder. Prosecutors are seeking the death penalty.

Holmes sat silently Thursday through the one-hour hearing — unusually brief for the complicated case. He still wore a bushy beard but his hair appeared to be matted or wet, and he had a vacant expression as he was led into the courtroom in shackles.

An insanity plea is widely seen as his best chance of avoiding execution. But his lawyers delayed it for weeks, saying his rights could be jeopardized.

One concern: If Holmes pleads insanity but doesn’t cooperate during a mental health evaluation, his lawyers would not be able to call expert witnesses to testify about his mental health during a penalty phase of the trial.

Defense lawyer Kristen Nelson argued that would violate the Constitution.

“The 8th Amendment is clear. You cannot place this kind of restriction on a defendant’s ability to present mitigating evidence,” she said.

Holmes’ attorneys also contended the law doesn’t define cooperation, and they need to know the legal meaning in order to advise Holmes whether or not to agree to take a “truth serum” or a polygraph test during the evaluation.

The current list of conditions Holmes would have to accept to enter an insanity plea includes submitting to a “narcoanalytic interview” if requested by the doctors conducting the evaluation. The evaluation is mandatory under the insanity plea.

Prosecutor Rich Orman said the Constitution and court precedents give the state the right to regulate what mitigating evidence can be introduced in the penalty phase of a trial. He also said the word “cooperate” is unambiguous.

“It is a very common word. It is very easy to understand,” he said.

Holmes needs court permission to change his plea because a judge entered a standard not guilty plea on his behalf in March. The judge is likely to approve the change, but Holmes would first have to agree to the conditions, including the requirement that he cooperate during the mental evaluation.

Once the insanity plea is formally accepted, Holmes would undergo an evaluation by state doctors to determine whether he was insane at the time of the shootings. That could take months.

Colorado law defines insanity as the inability to distinguish right from wrong caused by a diseased or defective mind.

If jurors find Holmes not guilty by reason of insanity, he would be committed indefinitely to the state mental hospital. He could eventually be released if doctors find his sanity has been restored, but that is considered unlikely.

If they convict him, the next step is the penalty phase, during which both sides call witnesses to testify about factors that could affect why Holmes should or shouldn’t be executed.

The jury would then decide whether Holmes should be executed or be sentenced to life in prison without possibility of parole.

If jurors impose the death penalty, it would trigger court appeals and open other possibilities that would take years to resolve — as in another death penalty case playing out in Colorado.

Nathan Dunlap, on death row since 1996 for killing four people, was given an indefinite reprieve by the governor on Wednesday. That could keep him alive for years but doesn’t eliminate the possibility he will be executed someday.

By DAN ELLIOTT, Associated Press

(© Copyright 2013 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.)

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