James Holmes has admitted to being the Aurora, Co., theater shooter who killed 12 and injured another 70, but he argues that he is not guilty by reason of insanity. The trial is expected to last for several months. If jurors agree he was insane at the time of the shooting, he will be committed to a state psychiatric hospital. If not, they will have to determine his sentence: life without possibility of parole or the death penalty. The Christian Science Monitor says it may be the first time a Colorado jury has ever had to weigh the insanity defense in a death penalty case. “I don't know that Colorado has ever had a death penalty case involving the insanity plea,” says Karen Steinhauser, a former prosecutor and defense attorney. The state is ambivalent in its attitude toward capital punishment, and some see the Holmes case as a referendum on the death penalty. Since 1976, when capital punishment was reinstated in the U.S., Colorado has executed just one prisoner. It currently has three prisoners on death row.
Mounting a successful insanity defense in such a serious, high-profile case is extraordinarily difficult, say experts. “As a general matter, it’s very hard to win an insanity plea in a serious case like this, because the jury pretty much figures if you do the crime, you have to do the time,” says Christopher Slobogin, a law and psychiatry professor at Vanderbilt University. To be successful, defendants need to demonstrate a long history of psychiatric evaluations and evidence and bizarre behavior and thinking at the time of the offense, he says, and even then, they almost never win in homicide cases, much less a horrific, multiple-homicide case like the Aurora shooting. “Just looking at it in the abstract, this is going to be a very tough case to win at trial,” says Slobogin.