Trial judge defends LWOP sentence for James Holmes

August 24, 2015

NBC News is reporting that Judge Samour, the judge who presided over the James Holmes murder trial (AKA: the Aurora theater shootings) defended the outcome (life without parole) against criticism by the mother of one of the shooting victims. She said the result showed more concern for Holmes than his victims. He said,

“You can’t claim there was no justice because it wasn’t the outcome you expected,” Judge Carlos A. Samour Jr. said in an unusual speech from the bench during Holmes’ formal sentencing hearing for the 2012 attack.

Samour said the jury was fair and impartial and that he tried his utmost to be the same.

“And that’s how you know it was justice,” he said.

Holmes killed twelve and wounded 70 people. He was schizophrenic and delusional when he committed the crimes. Experts testified that he would not have committed the crimes if he were not mentally ill.

I agree with Judge Samour.

Prior to trial, the defense offered to plead guilty to a life-without-parole sentence, but the prosecutor rejected the offer. I have have criticized that decision harshly as a catastrophic waste of time and money because juries are reluctant to sentence the mentally ill to death. The result was predictable. I feel bad for the victims and their families, but this trial and its attendant emotional roller coaster did not need to happen.

 

 


Time to end death penalty prosecutions of the mentally ill

August 9, 2015

In light of the life-without-parole sentences imposed on Theodore Kaczynski (the Unabomber), Jared Loughner (who shot and killed Congresswoman Gabriele Giffords and a federal judge) and James Eagan Holmes (who shot and killed 12 people at a movie theater in Aurora, Colorado), that “mark the progress of a maturing society,” I believe our society’s “evolving standards of decency” have reached a point where Congress and our state legislatures should pass legislation that prohibits executing the mentally ill for murders they committed. At long last, have we not reached the point where reasonable and thoughtful people can conclude that executing the mentally ill violates the Eighth Amendment prohibition against cruel and unusual punishment?

In Trop v. Dulles, 356 U.S. 86, 100-101 (1958), Chief Justice Earl Warren wrote,

This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U.S. 349. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

(Emphasis added)

Each of these men committed atrocious and heinous multiple murders. Each of them was schizophrenic and delusional when they committed the murders. When a person kills another human being while gripped by delusions caused by a severe mental illness such as schizophrenia, it makes no sense to hold that person accountable for what he did by executing him. Indeed, such an execution serves only a desire for vengeance, which is not a legitimate societal interest. Moreover, since they have lost the capacity to reason through no fault of their own, it certainly does not deter other mentally ill people from killing.

I previously warned that the James Holmes death penalty trial is a colossal waste of time and money. Let us join together and vow to never again make this mistake.


Jury sentences James Holmes to life without parole

August 8, 2015

CTV reports,

Twelve jurors failed to agree on a death sentence for Colorado theatre shooter James Holmes, prompting shocked sobs from victims, police officers and his own mother. Holmes will instead spend the rest of his life in prison for fatally shooting 12 people.

The nine women and three men said they could not reach a unanimous verdict on each murder count. That automatically eliminates the death penalty for Holmes, who blamed the killings on mental illness.

/snip/

One juror told reporters outside court that there was a single juror who refused to give Holmes the death penalty and two others who were wavering. The key issue was Holmes’ mental illness.

“All the jurors feel so much empathy for the victims. It’s a tragedy,” the juror said, refusing to give her name. “It’s a devastating result no matter what. I am deeply, deeply sorry — that isn’t even the word.”

The verdict was a surprise because a week ago (before the victim impact testimony) the jury decided that the mitigation evidence did not outweigh the aggravation evidence. I was surprised since that is the legal test for deciding whether to impose the death penalty or life without parole. I suspect the change might be the due to the difference in believing you can kill someone versus actually doing it. Someone on that jury could not pull the proverbial trigger.

A month ago, I predicted this result when I wrote, James Holmes death penalty trial is a colossal waste of time and money.

The prosecution is seeking the death penalty even though there is no question that Holmes was mentally ill but legally sane at the time of the shootings — one psychiatrist diagnosed him as suffering from schizotypal disorder while a second psychiatrist diagnosed him as suffering from shizoaffective disorder — and he offered to plead guilty to a life-without-parole sentence. After the prosecution rejected the defense offer, Holmes changed his plea to not guilty by reason of insanity.

/snip/

We who have experience representing clients in death penalty cases* refer to the guilt phase in a slam dunk case like this as a slow-motion guilty plea. That is, when we lack a defense, instead of pleading guilty, we use the guilt phase to introduce evidence that mitigates the seriousness of the offense. Holmes’s insanity defense is doomed because he admitted to police that he knew killing was wrong. But there is no dispute that he was mentally ill. While not a defense, mental illness is a powerful mitigating factor and, as I’ve said previously, I think the jury will likely vote for a life-without-parole sentence after the penalty phase for the simple reason that killing somebody who was mentally ill through no fault of their own is morally and ethically repugnant to most people.

I’ve said this before and I will say it again, this trial has been a colossal waste of taxpayer time and money.

*I was a death penalty lawyer until I retired in 2005.

 


James Holmes death penalty trial is a colossal waste of time and money

July 11, 2015

James Eagan Holmes was arrested on July 20, 2012 shortly after killing 12 and wounding 70 people at the midnight premier of a new Batman film in the Century 16 movie theater in Aurora, CO. He was eventually charged with 152 crimes, including 12 counts of premeditated murder, 12 counts of depraved heart murder (charged in the alternative) and 70 counts of attempted murder. The prosecution is seeking the death penalty even though there is no question that Holmes was mentally ill but legally sane at the time of the shootings — one psychiatrist diagnosed him as suffering from schizotypal disorder while a second psychiatrist diagnosed him as suffering from shizoaffective disorder — and he offered to plead guilty to a life-without-parole sentence. After the prosecution rejected the defense offer, Holmes changed his plea to not guilty by reason of insanity. The trial began with jury selection on January 20, 2015. Both sides rested yesterday. Closing arguments for the guilt phase are scheduled to start on Tuesday.

We who have experience representing clients in death penalty cases* refer to the guilt phase in a slam dunk case like this as a slow-motion guilty plea. That is, when we lack a defense, instead of pleading guilty, we use the guilt phase to introduce evidence that mitigates the seriousness of the offense. Holmes’s insanity defense is doomed because he admitted to police that he knew killing was wrong. But there is no dispute that he was mentally ill. While not a defense, mental illness is a powerful mitigating factor and, as I’ve said previously, I think the jury will likely vote for a life-without-parole sentence after the penalty phase for the simple reason that killing somebody who was mentally ill through no fault of their own is morally and ethically repugnant to most people.

I’ve said this before and I will say it again, this trial has been a colossal waste of taxpayer time and money.

*I was a death penalty lawyer until I retired in 2005.


Judge disqualifies three jurors during James Holmes death penalty trial

June 11, 2015

Judge Carlos A. Samour, Jr., dismissed three jurors for misconduct yesterday in the James Holmes murder trial. Holmes is accused of shooting to death 12 and injuring 70 at a movie theater in Aurora, Colorado on July 20, 2012 during the premiere showing of a new Batman film. The prosecution is seeking the death penalty even though he is pleading insanity and was severely mentally ill at the time of the mass shooting.

The dismissal is unlikely to affect the legitimacy of the trial because the judge seated 24 jurors (19 women and 5 men). The jury that will decide the cased will be composed of 12 of those jurors. The rest will be alternates.

The hullabaloo that precipitated the dismissal started with a phone call to a juror from her husband during a smoke break for the jurors. The LA Times describes what happened.

The jury problems started when Juror 872’s phone rang during a break last week. Although she and her husband knew that she was not allowed to discuss the case, her husband called to ask about news reports that one of the attorneys had tweeted about the case from the courtroom.

Her phone was on speaker, and she was one of five people on the court’s patio, where jurors gather to smoke.

This is what 872 said under questioning by Samour: “Last Thursday or Friday, my husband called me and asked me a question about what he saw on Facebook about Twitter. He was on speaker…. He asked me if I knew who the lawyer was.

“I said, ‘Why?’ He said, ‘That idiot was tweeting on Facebook.’ He knows I’m not supposed to talk about it. I don’t look at it in the paper…. Him and I got into a big argument about it. It just happened to be at lunch.”

Juror 872’s husband also asked her whether she knew who “Brauchler” is, referring to Arapahoe County Dist. Atty. George H. Brauchler, who is the main prosecutor in the case and who sent the offending tweet.

“I said, ‘He’s one of the lawyers,'” 872 recounted in court Tuesday, as the rest of the jurors waited outside of Division 201. “He said, ‘Well that idiot tweeted during the testimony.’ He didn’t say what he tweeted.”

On Thursday, Brauchler tweeted, “I agree on the video. I hope the jury thinks so too.” According to the Denver Post, he later apologized, explained that he thought he was sending a text, not tweeting, and took the offending post down quickly.

The video is a reference to the 22 hour interview of Mr. Holmes by a psychiatrist that was played in court. Holmes admitted during the interview that he knew he was breaking the law when he opened fire on the audience. His admission means he was not legally insane, although that is yet to be determined by the jury.

As anyone who served on a jury knows, jurors are prohibited from discussing the case with anyone, including other jurors, during the trial. The phone call and the resulting discussion violated that rule and the rest, as they say, is history.


Schizophrenia and Predicting Future Dangerousness

August 8, 2012

thejbmission asked an excellent question about schizophrenics and why our legal and mental health systems wait until after a tragic event occurs before doing anything to prevent it.

The short answer is mental health experts cannot accurately and reliably predict future dangerousness by schizophrenics. They are as likely to be right as they would be if they flipped a coin.

Most people afflicted by schizophrenia are not violent and, since they are not a danger to themselves or to others, they cannot be involuntarily committed to a secure mental health treatment facility. Without medication they are often delusional and when they are delusional, they cannot hold a job. The antipsychotic medication that keeps the delusions at bay has unpleasant side effects, however, that leave them feeling deadened like zombies. Families can do little to help them and they are often homeless wandering aimlessly about our cities talking to the voices no one else can hear. They occasionally commit petty crimes to survive and when they do, they are likely to be arrested and taken to jail. They plead guilty, are sentenced to time served, and released to the streets to begin the endless cycle anew.

Our mental health laws prohibit involuntary commitments unless a mental health professional, who typically is a screener at a hospital ER, finds probable cause that the person is dangerous to himself or to others. Such a finding usually results after an attempt to commit suicide.

The involuntary commitment is limited to 72 hours and cannot be extended unless approved by a judge following a hearing. The patient has a right to be present at the hearing and represented by counsel. If the judge finds probable cause to believe that the patient is a danger to himself or to others, the involuntary commitment will be extended for a period of 30 days and, upon review, may be extended for another 30 day period, etc.

Most people are released after the 72 hour period.

Predictions by mental health experts regarding who will commit acts of future violence are about as likely to be accurate as a coin flip. Therefore, there is no factual, medical or legal justification for singling out anyone, whether schizophrenic or not, and confining them for any reason for any length of time unless, due to a recent event, they are a danger to themselves or to others. That danger must be fact-based and immediate.


Holmes: Why the Prosecution is Waiting to Decide Whether to Seek the Death Penalty

August 4, 2012

James Eagan Holmes has been charged with 24 counts of Murder in the First Degree and 116 counts of attempted murder for killing 12 people and wounding 58 during a shooting spree inside a movie theater at the midnight showing of the new Batman film, Dark Knight Rising.

Facts are difficult to come by because the Court “has issued a gag order on lawyers and law enforcement, sealing the court file and barring the University of Colorado, Denver from releasing public records relating to Holmes’ year there as a neuroscience graduate student.”

I have written two articles about the case here and here reviewing the potential civil liability of the University of Colorado to the victims of the shooting spree for the alleged failure of its employees, psychiatrist Dr. Lynne Fenton and the members of the university’s threat assessment team to warn the police about a possible threat to harm people that Mr. Holmes may have expressed to Dr. Fenton on or about the day that he formally withdrew in early June as a student in a Ph.D. program in neuroscience.

Probably due to the Court’s gag order, the school has not yet disclosed the specifics of Mr. Holmes’s statement to Dr. Fenton. All that we know so far is that she attempted to convene the mental health clinic’s threat assessment team to review what he said, but the team declined to do so because he had withdrawn from the school.

As I explained in my two articles, given the restrictive and limiting language in the Colorado statute, I believe it is unlikely that the university will be held liable to the victims of the shooting for failing to warn the police about Mr. Holmes. We will have to wait and see what Mr. Holmes said to Dr. Fenton before we can definitively wrap up this discussion.

Now I want to discuss a different subject in the case; namely, the death penalty. The prosecution has charged Mr. Holmes with two murder counts per homicide victim. The two charges contain different elements and basically allege two different ways to commit the same offense. CBS News explains:

Holmes is facing two separate charges for each person killed or injured. The second charge for each alleges that in killing or injuring, Holmes evidenced “an attitude of universal malice manifesting extreme indifference to the value of human life generally.”

The prosecution announced shortly after filing charges against Mr. Holmes, that it has not yet decided whether it will seek the death penalty, if Mr. Holmes is convicted of murder.

Translated into the language we speak, that means it is waiting for the defense to complete its mitigation investigation and submit its report to the prosecution to consider in determining whether to file a notice that it will seek the death penalty.

Mitigation evidence is any evidence about the defendant or the crime he committed that in fairness or in mercy calls for a sentence of less than death.

Mr. Holmes appears to suffer from a serious mental illness, possibly a type of schizophrenia. The defense likely has assembled a team of mental health experts who are testing and evaluating his competency to stand trial and well as his mental functioning. No doubt they have been reaching far back into his life collecting all existing school, medical and mental health records.

Mitigation investigation has developed into an art form as well as a necessary and highly specialized skill over the course of the past 30 years. The most common reason for appellate court reversals of death sentences has been ineffective assistance of defense counsel for failing to conduct a thorough mitigation investigation.

A diagnosis of schizophrenia would be powerful mitigating evidence, even if it did not establish legal insanity, because schizophrenia is a debilitating mental disease over which a person has little or no control. Therefore, traditional arguments for the death penalty that are based on the idea of holding people accountable for their actions by sentencing them to death, lose power in the face of evidence that the person is delusional, not like others, and incapable of making responsible decisions on a regular basis. Most people recognize that there is something fundamentally unfair about sentencing someone to death who lacked the capacity to make rational decisions.

Mr. Holmes may also satisfy the test for legal insanity. That is, that he suffers from a mental disease or defect such that he cannot distinguish between right and wrong and conform his conduct to the requirements of law. Insanity is another mitigating factor.

Regardless of his mental condition, however, he committed horrific acts that required sufficient capacity to plan and carry out a moderately complicated scheme.

When the prosecution receives the defense mitigation report, it will submit it to its own panel of mental health experts for review and comment.

Eventually, both sides will meet and engage in serious discussions regarding whether a mentally ill man should be executed or spend the rest of his life in prison without possibility of parole.

Whether the prosecution ultimately decides to file the notice that it will seek the death penalty will depend on the outcome of those discussions and the thoroughness and quality of the defense mitigation report.


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