James Holmes, accused of killing 12 and injuring 58 people during a movie theater shooting spree in July in Aurora, Colorado, will be charged with 24 counts of first-degree murder, two for each of the 12 people who were killed.
The prosecution will be giving the jury two different options and Michael Kraut, former L.A. Deputy District Attorney and of the Kraut Law Group in Los Angeles, California, says this is a smart way to handle the case. He elaborates by saying the jury can decide it was either premeditated, as the book that he sent to the school mailroom, coming in the back door of the theater, purchasing ammunition and protective gear - all show premeditation, or that there was an indifference to human life, where you walk into a place where you have victims not expecting this and just start assassinating people.
Kraut says that you can't use the fact that someone goes to a psychiatrist to show they're unstable. Here, Holmes is recognizing he needs assistance and he's choosing to go, so it doesn't hit the point of insanity in the legal definition. Kraut adds that it is "probably a fairly reasonable deduction to say that he had some homicidal tendencies or was dealing with certain issues which will put into play very tight rules about doctor/patient confidentiality," and the lawyer for Holmes is able to raise that doctor/patient confidentiality.
Virtually every state in the U.S. has very strict rules about the liability of medical professionals, especially psychiatrists and therapists, about their patient's future conduct, Kraut says. If Holmes's psychiatrist knew he was planning on doing that, she is obligated by state law to alert the authorities of future harm to known victims.
With the two options the prosecution will be giving the jury, there is a distinction. Kraut says that if the jury finds Holmes to be indifferent, they will have to find that to the highest level. If the jury finds it to just be premeditated, they don't have to determine the sanity factor unless it is brought up by the defense. They would just have to prove he planned this and murdered people. Kraut believes this is "totally going to come down to the mindset of the individual."
An insanity defense has to do with two components, according to Kraut. The first component is if the person insane now. If so, the person would be unable to help in their defense and be sent to a medical facility and treated and then brought back when they are to the point of sanity. In theory, a person can then be in a medical facility for over 20 years, brought back for trial and then given the death penalty. The second component is if the person was insane at the time they commited the act, as they would not be legally responsible for those acts because of insanity. That is a very, very hard hill to climb for a defense attorney, Kraut says.
With these two alternatives for the jury, they would have to find Holmes to be sane at the time of the crime and then they'd go to the next thing to see if it was premeditated, which would be hard to disprove considering he bought the ammunition and protective gear and booby-trapped his apartment. To get to the point where a jury may find Holmes insane when the incident occurred would be virtually impossible, Kraut says. He believes finding him insane now and incompetent to stand trial would be a much easier way to go.
Michael Kraut is a former prosecutor and worked for over 14 years as a Deputy District Attorney in Los Angeles, California prior to opening The Kraut Law Group. He is also a featured commentator on The Legal Broadcast Network.