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

Prosecutors have laid out 142 charges against James Holmes aimed at clearly proving that he planned out the theater shooting in Aurora, Colo. But his defense team might try to prove that he's insane.

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Arapahoe County Sheriff Department
Arapahoe County Sheriff Department

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.

(MORE: Colorado Shooting Suspect Charged with 142 Counts)

“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┬áConstitutional 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.

(PHOTOS: Batman Movie Theater Shooting in Aurora, Colo.)

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.”

MORE: Alleged Colorado Movie-Theater Shooter Makes First Court Appearance