Hearing may be ‘mini-trial’ in theater shootings

DAN ELLIOTT

Asso­ci­ated Press

CENTENNIAL, Colo. — The sus­pect in the Col­orado movie the­ater killings returns to court this week for a hear­ing that might be the clos­est thing to a trial the vic­tims and their fam­i­lies will get to see.

James Holmes, a for­mer neu­ro­science grad­u­ate stu­dent, is charged with killing 12 peo­ple and injur­ing 70 by open­ing fire in a dark­ened the­ater in the Den­ver sub­urb of Aurora last July.

At a week­long pre­lim­i­nary hear­ing start­ing Mon­day, pros­e­cu­tors will out­line their case against Holmes, the first offi­cial pub­lic dis­clo­sure of their evi­dence. The judge will then deter­mine whether to send the case to trial.

Legal ana­lysts say that evi­dence appears to be so strong that Holmes may well accept a plea agree­ment before trial. In such cases, the pre­lim­i­nary hear­ing can set the stage for a deal by let­ting each side assess the other’s strengths and weak­nesses, said Lau­rie Lev­en­son, a for­mer fed­eral pros­e­cu­tor and now a pro­fes­sor at Loy­ola Law School in Los Angeles.

Pre­lim­i­nary hear­ings “are often the first step to resolv­ing the case, a mini-trial so both sides can see the writ­ing on the wall,” Lev­en­son said.

Judges rarely throw out a case at this stage because pros­e­cu­tors must only meet a “prob­a­ble cause” stan­dard — much lower than the “beyond a rea­son­able doubt” stan­dard for a guilty ver­dict at trial, said Mimi Wes­son, a pro­fes­sor of law at the Uni­ver­sity of Col­orado Law School.

Holmes, who faces more than 160 counts includ­ing first-degree mur­der and attempted mur­der, could have waived his right to a pre­lim­i­nary hear­ing, allow­ing lawyers on both sides to pre­pare for trial. But defense lawyers some­times go through with the hear­ing because it gives them a clearer pic­ture of pros­e­cu­tion evidence.

“In this case, I think it likely that the gen­uine pur­pose of the hear­ing would be information-gathering by the defense,” Wes­son said.

Court offi­cials expect many sur­vivors and fam­ily mem­bers of the dead to attend the pre­lim­i­nary hear­ing, along with scores of spec­ta­tors and reporters. At least two over­flow rooms are being pre­pared where the hear­ing can be observed by video and audio feeds.

Dis­trict Judge William B. Sylvester has imposed a gag order on attor­neys and inves­ti­ga­tors, and many court doc­u­ments have been filed under seal, so lit­tle is known about Holmes’ path from promis­ing grad­u­ate stu­dent to sus­pect in a mass murder.

The few details that have been made pub­lic sug­gest a dis­turb­ing descent.

Holmes enrolled in the Uni­ver­sity of Col­orado, Den­ver Ph.D. pro­gram in neu­ro­science in 2011. In the spring of 2012, author­i­ties say, he began buy­ing weapons, high-capacity mag­a­zines, ammu­ni­tion, explo­sives and com­bat gear. At some point in the school year, he began see­ing a uni­ver­sity psy­chi­a­trist. He failed an oral exam on June 7 and with­drew from the uni­ver­sity three days later.

He was arrested out­side the the­ater shortly after the July 20 shoot­ings. Fed­eral author­i­ties have said he entered the the­ater with a ticket and is believed to have propped open a door, slipped out to his car and returned with his weapons.

Hours later, inves­ti­ga­tors found his apart­ment booby-trapped with poten­tially deadly explo­sives, police said.

In pre­vi­ous hear­ings — many wit­nessed by vic­tims and sur­vivors — Holmes’ appear­ance and behav­ior ranged from bizarre to unre­mark­able. On his first day in court, his hair was a shock­ing orange-red, his face was cov­ered with stub­ble and he seemed to be in a daze.

By last week, his hair was a natural-looking brown and he wore a full beard. He sat qui­etly and seemed to be aware of the proceedings.

Holmes could get the death penalty or life in prison with­out parole if he goes to trial and is con­victed of mur­der. He could avoid the death penalty if his lawyers argue he is men­tally ill or inno­cent by rea­son of insanity.

Holmes’ men­tal health is expected to be a major fac­tor whether his case ends in a plea agree­ment or goes to trial.

His lawyers have told the judge that Holmes was men­tally ill, and court records indi­cate they may call wit­nesses in the pre­lim­i­nary hear­ing to tes­tify about his men­tal health. The defense team has not said whether Holmes would enter an insan­ity plea.

An insan­ity plea is dif­fer­ent from the com­pe­tency argu­ment used for Jared Lough­ner, who pleaded guilty to killing six peo­ple and wound­ing 13, includ­ing then-Rep. Gabrielle Gif­fords, in Ari­zona in 2011.

A judge ruled in May 2011 that Lough­ner was men­tally incom­pe­tent to stand trial and ordered him to undergo psy­chi­atric treat­ment. After Lough­ner spent more than a year in treat­ment, the judge ruled he had become com­pe­tent, and Lough­ner accepted a plea agree­ment that car­ried a sen­tence of life in prison with­out parole instead of execution.

The deci­sion on whether to seek the death penalty will be up to the new dis­trict attor­ney for Ara­pa­hoe County, George Brauch­ler, who was elected in Novem­ber and takes office Tues­day, after the pre­lim­i­nary hear­ing begins. Brauch­ler has not indi­cated what he will do.

A spokes­woman for out­go­ing Dis­trict Attor­ney Carol Cham­bers, who over­saw the fil­ing of charges against Holmes, declined to comment.

If pros­e­cu­tors do not seek the death penalty, and if Holmes is con­victed of or pleads guilty to first-degree mur­der charges, he would face a manda­tory sen­tence of life with­out parole.

Posted by AP News on Jan 6 2013. You can follow any responses to this entry through the RSS Feed. Comments can be made below.