CENTENNIAL | Appearing more lucid and engaged than at his first court appearance, accused Aurora theater shooter James Holmes was charged Monday morning with 142 felony charges, including 24 counts of first-degree murder that, if convicted, would result in a mandatory life sentence without parole or even the death penalty.
Holmes, 24, is accused of killing 12 people and wounding about 50 others during a shooting rampage at a midnight premiere of a new Batman movie at the Century Aurora 16 theater July 20. He appeared in court Monday with his hands and feet shackled, his face unshaven and still sporting unruly bright orange hair.
According to charging documents, Holmes faces two counts of first-degree murder for each of the 12 people slain. One count accuses him of committing first-degree murder after deliberation, the other of committing murder while acting with extreme indifference for human life.
Legal experts say it isn’t unusual for prosecutor to file two murder charges for one victim.
“It’s very common for prosecutors to charge cases in all of the various ways that they believe they can prove a case,” said Karen Steinhauser, a former Denver prosecutor now in private practice.
The extreme indifference charge is often used in cases where a suspect fired a weapon into a crowd, knowing someone could be killed but not targeting a particular individual in that crowd, Steinhauser said.
Jurors can return guilty verdicts on both murder charges, just one, or acquit, she said.
Holmes conferred briefly with his attorneys during the one-hour hearing in Arapahoe County District Court. When the judge asked whether he understood he was waving his right to have an evidentiary hearing within 35 days, Holmes said he did, though his answer was mumbled and difficult to understand from the gallery. Last week, when advised of charges in the same court room, Holmes was wide-eyed and appeared to mentally drift off during brief proceedings.
In addition to the first-degree murder charges, Holmes was charged with 116 counts of attempted first-degree murder, and one count of felony possession of an explosive device. He was also charged with a violent-crime sentencing enhancer, mandating lengthy sentences on the attempted murder and explosives charges in addition to the life sentences he already faces.
Holmes’ next court appearance is slated for Aug. 9 when attorneys are expected to discuss whether items he allegedly mailed to his psychiatrist at University of Colorado Hospital is subject to privacy laws.
in discussing concerns about whether those documents constitute privileged communication between Holmes and his doctor, Chief Judge William Sylvester stressed that he wants to be careful not to jeopardize the case.
“We absolutely, positively, need to ensure and maintain the integrity of this process and we will do what we need to do in that regard,” he said.
Attorneys argued today over a defense motion to find out who leaked information to the news media about the package Holmes allegedly sent to psychiatrist Dr. Lynne Fenton.
Authorities seized the package July 23, three days after the shooting, after finding it in the mailroom of the medical campus where Holmes studied. Several media outlets reported that it contained a notebook with descriptions of an attack, but Arapahoe County District Attorney Carol Chambers said in court papers that the parcel hadn’t been opened by the time the “inaccurate” news reports appeared.
Unlike Holmes’ first court appearance July 23, Monday’s hearing was not televised. At the request of the defense, Sylvester barred video and still cameras from the hearing, saying expanded coverage could interfere with Holmes’ right to a fair trial. Last week, Sylvester allowed a live video feed that permitted the world its first glimpse of the shooting suspect, but barred cameras from this appearance.
Security was tight for Monday’s hearing. Armed officers were stationed on the roof of both buildings at the court complex, and law enforcement vehicles blocked entrances to the buildings. Eight armed deputies were in the courtroom and several more were in the hallway.
Investigators said Holmes began stockpiling gear for his assault four months ago and bought his weapons in May and June, well before the shooting spree. He was arrested by police outside the theater.
Analysts said that means it’s likely there’s only one main point of legal dispute between prosecutors and the defense.
“I don’t think it’s too hard to predict the path of this proceeding,” said Craig Silverman, a former chief deputy district attorney in Denver. “This is not a whodunit. … The only possible defense is insanity.”
Under Colorado law, defendants are not legally liable for their acts if their minds are so “diseased” that they cannot distinguish between right and wrong. However, the law warns 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.”
Experts said there are two levels of insanity defenses.
Holmes’ public defenders could argue he is not mentally competent to stand trial, which is the argument by lawyers for Jared Loughner, who is accused of killing six people in 2011 in Tucson, Ariz., and wounding several others, including Rep. Gabrielle Giffords. Loughner, who has pleaded not guilty to 49 charges, has been diagnosed with schizophrenia and is undergoing treatment at a Missouri prison facility in a bid to make him mentally fit to stand trial.
If Holmes’ attorneys cannot convince the court that he is mentally incompetent, and he is convicted, they can try to stave off a possible death penalty by arguing he is mentally ill. Prosecutors will decide whether to seek the death penalty in the coming weeks.
He ultimately could verbally enter a plea to the anticipated dozen first-degree murder charges, or his attorneys could enter it for him. Prosecutors may file multiple counts of attempted first-degree murder and other charges against Holmes, who booby trapped his apartment with the intent to kill any officers responding there the night of the theater attack, Aurora police said.
Sam Kamin, a law professor at the University of Denver, said there is “pronounced” evidence that the attack was premeditated, which would seem to make an insanity defense difficult. “But,” he said, “the things that we don’t know are what this case is going to hinge on, and that’s his mental state.”
Friends in Southern California, where Holmes grew up, describe him as a smart, sometimes awkward youth fascinated by science. He came to Colorado’s competitive neuroscience doctoral program in June 2011. A year later, he dropped out shortly after taking his year-end exam.
Sylvester has tried to tightly control the flow of information about Holmes, placing a gag order on lawyers and law enforcement, sealing the court file and barring the university from releasing public records relating to Holmes’ year there. A consortium of media organizations, including The Associated Press, is challenging Sylvester’s sealing of the court file.
On Friday, court papers revealed that Holmes was seeing a psychiatrist at the university. But they did not say how long he was seeing Dr. Lynne Fenton and if it was for a mental illness or another problem.
The University of Colorado’s website identified Fenton as the medical director of the school’s Student Mental Health Services. An online resume listed schizophrenia as one of her research interests and stated that she sees 10 to 15 graduate students a week for medication and psychotherapy, as well as five to 10 patients in her general practice as a psychiatrist.
Authorities said Holmes legally purchased four guns before the attack at Denver-area sporting goods stores — a semiautomatic rifle, a shotgun and two pistols. To buy the guns, Holmes had to pass background checks that can take as little as 20 minutes in Colorado.
One development over the weekend brought more grief. A woman who was critically wounded and whose 6-year-old daughter was killed suffered a miscarriage because of the trauma, her family said Saturday. Ashley Moser’s daughter, Veronica Moser-Sullivan, was the youngest person killed in the attack.
Chambers’ office announced Monday that Lisa Teesch-Maguire, a former legal director of the Rocky Mountain Victim Law Center, had been appointed a victims’ rights advocate in the case.
The Associated Press contributed to this story.