Authorities will file formal charges in the Aurora, Colo., theater shootings Monday. It’s widely assumed that prosecutors will file dozens, if not more than a hundred, first-degree and attempted murder charges against 24-year-old James Holmes, the lone suspect in the July 20 attack.
Monday’s hearing is the next step in what’s expected to be months of preliminary proceedings leading up to a possible criminal trial. The judge has barred law enforcement and attorneys from speaking publicly, ruling that Holmes’ right to a fair trial could be jeopardized. But plenty of attorneys not directly associated with the prosecution or defense are talking.
“If a bullet flies by your head but doesn’t hit you, that’s attempted murder,” said Karen Steinhauser, a former chief deputy district attorney for Denver. “The prosecution is going to allege that he was trying to kill those people as well, regardless of whether or not they actually were struck by a bullet.”
Prosecutors may also seek the death penalty for Holmes. Prior to the judge imposing the gag order, Arapahoe County District Attorney Carol Chambers said that decision would only come after consulting with victims and their families.
“If the death penalty is sought, that’s a very long process that impacts their lives for years,” Chambers said.
The attack left 12 people dead and 58 wounded, some critically.
Even a preliminary hearing or a plea from Holmes is still several months out. After Monday’s hearing, attorneys on both sides will continue combing through thousands of pages of police reports and evidence.
Holmes’ court-appointed defense attorneys are Tamara Brady and Daniel King, who come from a statewide pool of public defenders. They were tapped because of their experience representing high-profile murder suspects, says David Kaplan, who was Colorado’s chief public defender until 2006.
“It certainly is increasing pressure when you have this kind of scrutiny on it,” he said, “but you still, at the end of the day, close the door and do what you’re trained to do, and that’s defend Mr. Holmes to the best of your ability.”
Kaplan and other legal experts say defense attorneys might try to paint Holmes as someone who is deeply troubled and unfit for trial.
“I think there’s no great stretch to suggest that Mr. Holmes has some serious mental health issues,” Kaplan said.
An insanity plea could be one way to try to avoid the death penalty, “but I suspect that this will not be a death penalty case,” he said.
Michael Radelet, an expert on the death penalty, says that might be due to economics more than anything else. As Chambers, the DA, alluded, death penalty cases can take decades, and costs to counties and the state run in the millions.
“I think that when all the factors are looked at, that … Chambers, despite her long record of supporting the death penalty, will conclude that this is not where we want to go with this case,” said Radelet, a sociology professor at University of Colorado, Boulder.
Colorado has had only one death row execution since 1967. And Chambers has caught fire for what some of her critics call an aggressive pursuit of capital punishment during her tenure. But Steinhauser, the former Denver deputy DA, says Chambers was also faced with an unusually high number of homicide cases where there was pressure to seek it.
“I don’t think this is a case where we could say, well, one DA might be more inclined to seek the death penalty,” she said.
Steinhauser calls this case unprecedented for Colorado, pointing out that in the Columbine massacre, the shooters killed themselves.
“I mean, this is just beyond what we’ve seen here in terms of a case of where a prosecutor has to make that determination,” she said.
Chambers is term-limited from office in January, so the final decision may rest with whoever replaces her.