AURORA | After accused Aurora theater shooter James Holmes appears in court for a hearing next week, the man accused of killing 12 people likely won’t see the inside of a courtroom for several weeks.
And that gap between scheduled court appearances is something those following the case should get used to, experts say, because the case has a long slog between now and a possible trial.
“The justice system is a ponderous one, and it’s slow for a reason,” said former Adams County District Attorney Bob Grant.
In all likelihood, the trial won’t start for two years, he said.
Several factors complicate Holmes’ case, experts say, including the likelihood of an insanity defense by Holmes’ lawyers and the likelihood that prosecutors will seek the death penalty.
According to a schedule laid out in court late last month, Holmes was scheduled to appear in an Arapahoe County courtroom Aug. 9 for a hearing on several motions from the media. The motions ask a judge to unseal some of the case file, much of which has been sealed since the July 20 shooting rampage at the Century Aurora 16 theater.
Holmes is scheduled to appear in court a week later on Aug. 16 for another hearing where lawyers are expected to argue over a package Holmes sent to his psychiatrist at the University of Colorado, where he studied neuroscience in a prestigious graduate program until dropping out a month before the shootings.
Whether the package, which court documents say Holmes mailed to Dr. Lynne Fenton, constitutes privileged doctor-patient communication is an issue in Holmes’ case. The defense has argued that the documents are privileged, but prosecutors said they aren’t certain of that.
After that hearing, Holmes isn’t scheduled to appear in court again until a status meeting Sept. 27.
Under Colorado law, Holmes has a right to a preliminary hearing within 35 days of his arrest because he is being held in custody pending trial. But at a hearing in late July, Holmes waived his right to have that hearing within 35 days.
Instead, Judge William Sylvester tentatively scheduled Holmes’ preliminary hearing for four days starting Nov. 12.
If many of the court documents in the case remain sealed — particularly the arrest and search warrant affidavits which likely include specific details about the case — that preliminary hearing will likely be the first time the public learns many of the details about the shootings.
During the four-day hearing, the prosecution will lay out much of their case against Holmes and Sylvester will rule whether there is enough evidence for him to stand trial. But whether the hearing will actually happen in November remains up in the air.
“I doubt that that’s a firm date, particularly if there is a competency issue,” he said.
Grant said he gives it only a 50-50 chance of going forward that soon because the case is so intensive, the lawyers may not be prepared for such a crucial hearing in three months.
“The defense is undoubtedly going to come in in October sometime and say they are about halfway through this stuff,” he said.
At that point it will be up to Sylvester to grant a continuance or deny it and tell the parties to get their cases ready anyway.
Because of the magnitude of the case, Grant said the judge will likely grant the extension and tell the lawyers they have all the time they need.
And, Grant said, the preliminary hearing as well as the arraignment that would follow a few weeks later could all be delayed substantially if Holmes does in fact plead insanity, as several experts have predicted he will.
An insanity defense will likely mean at least a month of evaluations at the Colorado Mental Health Institute in Pueblo, Grant said, though in some cases the evaluations can be done at the local jail.
If prosecutors announce they plan to seek the death penalty — a decision Grant said probably won’t come until some time next year — the case could move even slower, he said.
“The system is going to say, ‘You get every opportunity to defend against that,’” Grant said. “‘You get every opportunity to assert due process because we are different than he is.’”