Legal Strategy Gets Complex As Charges Are Presented in Colorado Shooting Trial

The extreme nature of the grisly crime James
Eagan Holmes is accused of was enough for
Colorado prosecutors to charge him twice for each
victim. He was charged with 24 counts of first-
degree murder, for example, related to the 12
victims he is said to have killed. Although the total
number of people he allegedly killed or wounded
comes to 70, he actually faces 140 counts —
charged double for each person he allegedly shot —
plus two additional charges for explosives
possession and unlawfully using weapons to
commit his alleged crimes.
But upon reading the criminal complaint, each of
the two charges per victim is different. For each
person killed or wounded, one charge denotes
premeditation “with the intent to cause the death,”
while the other reads that Holmes, a former
neurology student, had “an attitude of universal
malice” and an “extreme indifference to human
life,” which “created a grave risk of death.” So why
both charges for one crime committed toward one
victim? Because prosecutors, who will turn every
stone to get a conviction for such a heinous crime,
want to give jurors two ways of looking at just how
guilty they think Holmes is.

“What they’re doing is seeking to present to a jury
two alternate theories for the establishment of
guilt,” Sam Kamin, a law professor at the University
of Denver and director of the school’s Constitutional
Rights & Remedies Program, told TIME. He
explained that prosecutors will try to prove that
Holmes’ actions were of “universal malice,” that
the shooter both planned to shoot innocent people
and showed a callous disregard toward those he
allegedly shot.
However, looking at both theories means the case
is shaping up to be a years-long criminal
proceeding — one in which prosecutors are likely to
seek the death penalty. Colorado has executed only
one prisoner since its capital punishment laws were
reestablished in 1976. The state executed Gary Lee
Davis in 1997 by lethal injection for the rape and
murder of his neighbor Virginia May. Despite the
rarity of the use of capital punishment in Colorado,
Holmes’ case may be a candidate for it, although
prosecutors have yet to announce whether they will
seek it.
“All expectation is that the prosecution will seek
the death penalty,” Kamin said. “It’s a very
compelling case for a death sentence. The thing we
do not know has to do with the mental state of Mr.
Holmes, we don’t know any of the things the
defense attorney will use to spin it.” That includes
blaming his alleged actions on an unstable mental
state, and it was revealed in recent days that
Holmes may have been seeing a psychiatrist at the
University of Colorado. “The defense may argue
that he is not fit to stand trial, or that he is not
guilty by reason of insanity, or they may try to use
any mental problem he’s had to try to mitigate his
(alleged) crime,” said Kamin.

Stephen Reich, a New York-based forensic
psychologist who is also a lawyer, said in Holmes’
case it may be the only viable option for the
defense. “It’s a completely different question once
an insanity plea is made,” he told TIME. “There’s
little doubt if he pulled the trigger, but then they’re
saying he did it for reasons of insanity.”
Reich used the example of John Hinckley who shot
and wounded President Reagan in 1981 and the
next year was found not guilty by reason of
insanity. Instead of being imprisoned he was
committed to a mental institution, where he
remains today. “It means at the end of the day, the
man may be in a mental hospital rather than a
prison. But in order to go to a mental hospital, you
have to make a credible case that this is the
product of a mental disease.”::::