James Holmes' attorneys again challenge law on insanity pleas

The defense in the Colorado theater shooting has argued that state law violates a defendant's rights in a death penalty case.

By Jenny Deam, Los Angeles TimesMay 24, 2013

CENTENNIAL, Colo. — With the stakes for their client literally life or death, defense attorneys for James E. Holmes on Thursday again challenged the constitutionality of Colorado's law governing insanity pleas.
Holmes, 25, is accused in the July 20 massacre that killed 12 people and injured 70 others in a packed Aurora movie theater. He is charged with 166 counts of first-degree murder, attempted murder and weapons charges, and faces the death penalty if convicted.
By law he cannot be put to death if found not guilty by reason of insanity — a plea his lawyers this month asked the court to accept.



Judge Carlos Samour Jr. indicated he would decide by month's end whether to allow Holmes to change his plea from the traditional not guilty plea, which was entered on his behalf by another judge in March. But first Samour said the constitutionality issues must be clarified so Holmes can be properly advised of the consequences of a plea change.
Samour did not rule on defense objections to the state's law Thursday but said he hoped to have a decision by next week.
For months the defense has argued that Colorado's insanity plea law violates a defendant's rights at the sentencing in a death penalty case. Defense attorney Kristen Nelson said Thursday that Colorado's law — changed in the 1990s — would not allow testimony about Holmes' mental condition at sentencing if he refuses to cooperate during state psychiatric exams.
Those examinations are mandatory with an insanity plea.
She said the U.S. Supreme Court had ruled on many occasions that the defense cannot be restricted in mitigating evidence that might spare a defendant's life — especially in instances of mental illness. The defense has long maintained that Holmes, a former neuroscience doctoral student, is deeply mentally ill.
The sticking point continues to be the definition of "refusing to cooperate." That could include not answering certain questions, refusing polygraph or drug-induced psychiatric tests, or just not answering any questions at all.
Nelson maintained that if state psychiatrists decided Holmes was uncooperative, then that could be held against him. To guarantee due process, she said, there should be no restrictions to defense evidence based on perceived noncooperation.
When Samour asked her if there were any instances in which the state could or should restrict mitigating evidence, Nelson said no.
Deputy Dist. Atty. Rich Orman countered that Nelson's concerns were speculative and premature. He argued that if a psychiatrist reported that Holmes appeared to be uncooperative, the issue should be decided with a hearing at that time, not before.
He also opposed the idea that Holmes would be able to skirt the psychiatric exam process — long upheld as necessary in insanity cases — but still be able to put on expert testimony. Orman said it would leave the prosecution unable to dispute defense witness conclusions.
Denver attorney and legal analyst Scott Robinson, who is not involved in the case, told The Times on Thursday there was strong legal precedent to allow the defense the opportunity to present vigorous mitigation evidence during the penalty phase of a trial, especially one that involves the death penalty.
In another Colorado death penalty case, Gov. John Hickenlooper on Wednesday stunned the state by delaying indefinitely the execution of Nathan Dunlap, who was scheduled to die by lethal injection in August. Dunlap, convicted of the murder of four Chuck E. Cheese employees in 1993, is one of only three death row inmates in Colorado.
Like Holmes' defense attorneys, those representing Dunlap have said their client was seriously mentally ill. All the death row inmates, as well as Holmes, are in the state's 18th judicial district.
George Brauchler, the district attorney, was critical of Hickenlooper's decision, saying it showed not justice but inaction. In April, Brauchler said his office was seeking the death penalty for Holmes, saying "justice is death."
The district attorney's office previously rejected a defense plea bargain in which Holmes would go to prison for life without parole in exchange for taking the death penalty off the table.
nation@latimes.com
　
　
http://www.latimes.com/news/nationworld/nation/la-na-james-holmes-20130524,0,661221.story