James Holmes Trial: The Aurora Killer Should Not Be Deemed Insane

On July 20, James Holmes walked into a movie theater in Aurora, Colo., and murdered 12 innocent movie goers and wounded 58 others. The 25-year-old former neuroscience doctoral student now faces 166 counts of murder, attempted murder and weapons charges. Preliminary hearings have begun and Holmes, who has not entered a plea, is expected to plead insanity.

Holmes could theoretically be found not guilty, receive mental treatment and be able to walk the streets again. That’s insane. Holmes should never walk the street again. The question is should he be treated or punished?

As we all know from Law and Order, an insanity defense in a criminal trial is where the defendant claims they are not responsible for their actions due to mental health problems (psychiatric illness or mental handicap). The plea, if accepted, exempts the defendant from the full punishment of the law. A defendant can plead “not guilty by reason of insanity” or “guilty but insane/mentally ill.” The insanity defense tests the cognitive and volitional capacity of the defendant at the time of the crime. The defendant has to prove that they did not have the “mental capacity’ to know what they were doing, the ramifications and consequences of their actions and the will and judgment to prevent them from committing the crime i.e. they were “out of their mind.”

If Holmes enters a plea of not guilty by reason of insanity he loses all of his Fifth Amendment rights. He will lose all privileges related to physician-patient privacy and much of the law around attorney-client work-product. He will have to disclose and turn over any records pertaining to mental illness, including past medical records.

The concern with this defense is not whether it is legitimate, but rather it is the “punishment” or treatment that is afforded the defendant as a result of the verdict. Colorado is a death penalty state, however the mentally disabled are exempt from the death penalty because of the cruel and unusual punishment clause. If found not guilty by reasons of insanity, then Holmes may be ordered to receive psychiatric treatment but he would have no criminal record. If found guilty but insane, he avoids the death penalty. An insanity acquittee is usually committed to a mental institution, however the detention is limited by law, and they are required to be given periodic review to determine if treatment has been successful. If so, they must be released. An anti-social personality is not necessarily enough to retain an insanity acquittee.

There is no doubt that Holmes is/was mentally ill. I submit that anyone that decides to randomly murder for no reason whatsoever is mentally ill. However as it relates to the standard, Holmes knowingly and willfully broke the law. He purchased his ticket 12 days in advance. He booby-trapped his apartment. He chose the only theater that had a gun-free policy. He arrived early for the movie, hanging around the theater in regular clothes repeatedly checking his phone. He sat in the front row. He mapped out his exit, leaving the emergency exit door propped open. He parked his car right outside the emergency exit. He left the theater and changed into an all-black ensemble, including a gas mask, a load-bearing vest, a ballistic helmet, bullet-resistant leggings, a throat protector, a groin protector and tactical glove. Thirty minutes later he entered the darkened theater and opened fire.

Holmes had dyed his hair in the reddish-orange hue reminiscent of the fiendish, sociopathic, villainous character “The Joker” from the Batman. He fired a 12-gauge Remington 870 Express Tactical, a Smith & Wesson M&P15 semi-automatic rifle with a 100-round drum magazine, and a Glock 22 handgun. He then left the theater, went back to his car where he was arrested without incident or resistance. That is insane!

In Colorado the prosecution has the burden of proof i.e. they have to prove that Holmes is not insane. But clearly he is insane. It just is a matter of should he be punished.