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Is James Holmes Legally Insane? Colorado Jury Deliberates.

What happens when an unstoppable force meets an immovable object?  What happens when incurable mental illness collides with trial by jury in a western mountain state?  Jurors in the Aurora movie theater shooting case are presently deliberating this very issue – will they remain immovable in the face of James Holmes’ unstoppable mental illness or will they bend and find him not guilty by reason of insanity?

As the jury deliberates, we will discuss Holmes’ insanity defense.  What is legal insanity? How does legal insanity differ from mental competence to stand trial? How can Holmes claim he was insane when the courts found him mentally competent to stand trial? Does James Holmes have a realistic chance of acquittal?

What is the legal definition of insanity?

How does insanity differ from mental competence to stand trial?

The concept of “insanity” is something many people have strong opinions about, but few actually understand.  First and foremost, the concept of insanity should not be confused with the concept of mental competence to stand trial.  The two concepts are completely different.James Holmes Mugshot

When a defendant is mentally incompetent, it means his/her current mental state is one where he/she cannot appreciate the nature of the proceedings against them. Such a person doesn’t comprehend the role of the judge, the prosecutor, or the defense attorney.  A mentally incompetent person is not capable of participating in his/her own defense or working with their attorney.

As you might imagine, representing someone in a criminal case requires extensive and detailed conversations between the accused and the lawyer – just like practicing medicine requires similar conversations between doctor and patient. To effectively represent someone, a lawyer needs to hear the client’s version of events, needs their feedback about a variety of issues, and most importantly, needs decisions about how to proceed at certain intervals – such as whether or not to accept a plea bargain, to proceed to trial, to testify on their own behalf, etc.

A person who is mentally living in another dimension is simply not capable of such things.  It is the legal equivalent of an incapacitated patient in an emergency room.  Whether a person’s mind is not there due to mental illness, brain damage, or unknown causes, the ultimate effect is the same – they are not present to participate.

This differs greatly from the affirmative defense of insanity.

Keeping in mind that sanity is something that can come and go, the question of legal insanity addresses the criminal defendant’s state of mind at the time he/she committed the offense – as opposed to what is going on when the case makes its way to court.

Sanity and consciousness are not like being pregnant where you either are or you aren’t.  It is more like a rubber band… it can stretch, it can retract, or it can lay in a neutral state neither stretched nor retracted.  Sanity can be crystal clear and lucid or it can be muddled and chaotic.  Most importantly, it can fluctuate.  A person can experience a psychotic episode which they recover from or they can be forever psychotic.  It is like the difference between being down with the flu versus having a chronic immune disorder that keeps you perpetually sick.

In the State of Colorado, legal insanity is defined by Title 16, Article 8, Section 101.5 and will be explained in the Jury Instructions given by the judge to the jury prior to deliberation:

(a) A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable; except that care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions, for, when the act is induced by any of these causes, the person is accountable to the law; or

(b) A person who suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of a crime charged, but care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions because, when the act is induced by any of these causes, the person is accountable to the law.

In essence, a person who is legally insane either 1) cannot distinguish from right and wrong, or 2) lacks the culpable mental state needed to establish an element of a crime.  The first part of the test is rather straightforward and I am sure most people get it – whether they agree or not.  However the second avenue to legal insanity is one most people do not understand.

Let me explain.

Crimes are like peanut butter and jelly sandwiches – or so I was taught by one of the first judges I ever practiced in front of as a young prosecutor.  Just like a peanut butter and jelly sandwich, all crimes are comprised of distinct elements.  To have a peanut butter and jelly sandwich, you need two slices of bread, you need jelly, and of course you need peanut butter.  If you are missing but one part, you do not have a peanut butter and jelly sandwich.

In other words, if the prosecution cannot establish one of the required elements of a crime because the defendant has mental disorder that prevented him/her from forming the requisite state of mind, then the entire charge cannot stand.

How can Holmes claim he was insane when the courts found him mentally competent to stand trial?

To get a conviction for first degree murder in Colorado, the prosecution must prove the following elements beyond a reasonable doubt:

  1. That the defendant,
  2. in the State of Colorado, at or about the date and place charged,
  3. after deliberation, and
  4. with the intent,
  5. to cause the death of a person other than himself,
  6. caused the death of that person or of another person,
  7. and that the defendant was not insane as defined by law.

Insofar as the 7th element is concerned, this is where the difference between mentally competency and insanity come into play. Ultimately, two issues are implicated: Timing and Restoration.  When it comes to insanity, the question focuses on whether or not the defendant was insane at the time he/she committed the offense.  When it comes to mental competency to stand trial, the question focuses on whether or not the defendant is mentally competent at the time the case is being litigated in court.

Restoration to competency is the second issue.  Unlike the affirmative defense of insanity, which focuses on a specific moment in time, the mental competency has no time limit.  This is because there are many cases where a person can recover from insanity.  Sometimes insanity is permanent.  In other instances it may only be temporary.

When a person presents as mentally incompetent to stand trial, the courts will try to rehabilitate that person and restore their competency.  In cases where restoration is even possible, it is usually accomplished after many months of pharmacological treatment and therapy.

If a person can be restored to competence using medication and therapy, then the case will proceed to trial.

When a person argues the affirmative defense of insanity, it makes no difference that he/she was later restored. The question is strictly limited to the moment when he/she committed the crime.  However, prosecutors may challenge the defense by arguing that the person wasn’t “restored” because he/she was never actually insane in the first place.

Does James Holmes have a realistic chance of acquittal?

This is the million dollar question.  When the jury retires to deliberate, they will do so with three documents in hand: 1) the Jury Instructions, the charging document in Colorado v. James Eagan Holmes, and 3) Verdict Forms.

Realistically, his chances of acquittal are extremely remote.  Insane or not, a jury is simply not going to let someone go who commits a mass murder. It isn’t in the cards.

That said, there is a difference between an improbable outcome and an impossible outcome.  When it comes to successful criminal defense, it sometimes only takes one single juror.  In fact, that is how Jodi Arias avoided the death penalty for the murder of Travis Alexander… one juror held out.

It is to this one juror that the defense team speaks to today.  All they need is that one skeptic.  That one person who doesn’t just do as their told.  Or that one person who has a personal connection to mental health issues… whether it is due to a family member, their own experiences, or that of a friend.  There may be that one sympathetic person that turns this whole case around… it is just unlikely.

With his crazy orange hair and the deranged look in his eyes, there is good reason for the jury to conclude he was crazy. On the other hand, there is also evidence that shows he wasn’t that crazy.  First, he had an elaborately planned attack with notes, drawings, and comments about where the best targets and least conspicuous locations were.  Second, he foresaw getting shot and wore body armor to protect himself.  Third, he foresaw that law enforcement would find its way to his apartment, so he booby trapped it with explosives.

Someone who is insane doesn’t plan like he did.  While there is little doubt about how crazy he was, I think there is ample evidence to rebut the claim of insanity and convict as charged.

Ultimately, the real question will likely be about culpability.  In other words, does the jury really want to let him go without the maximum expression of justice?

Alternatively, jurors may balance things by finding him guilty as charged but later decline to impose the death penalty.  Or, they may convict as charged on all the counts that do not lead to a death sentence. Thereby sending him to prison for the rest of his life instead of a hospital.

Alternatively, the jury may weigh the hurt a conviction and death sentence will cause Holmes versus the hurt upon hurt upon hurt his mass murder caused – and there is no comparison.

Knowing the people of Colorado, who have a true American grain in their blood, I expect this jury will convict as charged and deliver justice in the manner western mountain states are known for… with a pine box.