Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 8, 2013

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James Holmes MugshotJames Holmes, on trial for killing 12 people and wounding 58 others in a shooting spree at a movie theater in Aurora, Colorado, is set to enter a plea next week. Holmes’ attorneys filed motions last week indicating they are prepared to assert an insanity defense, but want the court to consider whether or not submitting to the required mental health examination violates Holmes’ 5th Amendment right against self-incrimination. Holmes’ attorneys are arguing that current law provides less protection for defendants who are faced with the death penalty than for those who are faced with life imprisonment. Because the prosecution has not stated which penalty they will be pursuing, Holmes’ attorneys are not yet sure whether or not he should go for an insanity defense, which requires Holmes to submit to a mental health examination that could bring up evidence that will be detrimental to him during trial. Prosecutors were quick to point out that state public defenders unsuccessfully raised the same issue in two previous death penalty cases. It is now up to the judge to determine how next to proceed, creating additional delay for a case that has already dragged on for six months.

The Insanity Defense

The insanity defense is a legal defense that can be used in a criminal trial to assert that the accused cannot be held liable for committing a crime because they were legally insane at the time. When the accused asserts this defense, he or she must then undergo an examination by a mental health expert to determine whether or not the defendant had the capacity to determine right from wrong during the commission of the offense in question. If the defense is successful, the accused will be committed to a psychiatric facility, rather than to jail or death row, for a period of time. The defense and the prosecution may also elect to come to an agreement in the interests of justice, and with the judge’s approval, not go on to trial.

The Case of Ralph Tortorici

Mental health experts are key players in any case involving an insanity defense, but their testimony, or lack thereof, are not always determinative. In a case that was covered by PBS’ Frontline in 2002, defendant Ralph Tortorici was charged with kidnapping, aggravated assault and attempted murder after he took over an ancient Greek history class at a New York state university and held hostages using a knife and a .270-caliber rifle. During the stand-off with police, Tortorici continuously ranted in an incoherent fashion, making threats and at one point telling his hostages that he had a chip in his brain that controlled his thoughts. In the end, Tortorici was subdued by five students, one of whom was shot by Tortorici and very seriously injured. Tortorici had an extensive documented history of mental illness, so much so that the prosecution found it nearly impossible to find an expert who would challenge the defense experts. Nonetheless, in the end, the jury did not accept Tortorici’s insanity defense and sentenced him to prison (instead of a mental institution), primarily because they believed the evidence overwhelmingly showed that he carefully planned his crime and deliberated over how he was going to execute it.

Holmes’ Next Step – He Must Enter a Plea

In James Holmes’ case, the prosecution is actively putting together evidence and building a case, undoubtedly using significant evidence they have already gathered, to show that Holmes carefully planned and deliberated over his crime. In the meantime, Holmes’ attorneys are trying to decide between two tactics: 1) Plead not guilty by reason of insanity; or 2) Wait until sentencing to raise his mental health issues and possibly persuade the jury to be lenient and not impose the death penalty. Last week’s activity focused on a murky area of Colorado law that requires a defendant submit to a mental health examination when seeking an insanity defense, but the full extent of the law in this area is not clear. Can Holmes’ statements, behavior and actions during the exam be used as evidence against him if he raises an insanity defense and then later retracts it, or if he decides to raise his mental state during sentencing only? These are key questions that the judge will have to consider in the weeks ahead. In the end, however, if the prosecution is able to show that Holmes very carefully planned and executed his attack, the jury may well decide that even with credible evidence regarding his mental illness, he was still well enough to know right from wrong and, as in the Tortorici case, be subject to the same penalty as a legally sane individual.