12 people were brutally murdered and 50 were injured at the midnight showing of summer blockbuster move “The Dark Knight Rises” in Aurora, Colorado early this morning. According to several news outlets, masked suspect James Holmes, 24, kicked in an emergency door and threw a smoke bomb into the front of the theatre prior to opening fire. Holmes was thought to have worn a bullet proof vest and to have used a rifle and two handguns he had previously stashed somewhere within the theatre Holmes fled to a rear parking lot of the theatre where police apprehended him without resistance. Holmes is an American citizen and this incident is not believed to be linked to any kind of terrorist plot, despite this no doubt being an act of terror. Police have reported that Holmes mentioned having explosives set up in both his car and his home, causing the Bureau of Alcohol, Tobacco, and Firearms to search both, finding only “items of interest.”
Despite this terrible tragedy and the near instant reaction of the masses (count me in) to hold Holmes’ head on a stick, what will be the fallout for him? In my humble opinion, amongst other charges for attempted murder or aggravated battery for those lucky enough to survive Holmes’ attack, he will face 12 counts of first degree murder charges, potentially punishable by death. Colorado does have the death penalty by lethal injection, having been reinstated in 1975 after the death penalty previously being struck down along with every other state pursuant to the Supreme Court’s ruling in Furman v. Georgia, 408 U.S. 238 (1972). Colorado’s death penalty statute takes into consideration 17 aggravating factors of which there must only be one in order to sustain a sentence of death. According to the Death Penalty Information Center those factors are:
(1)The murder was especially heinous, atrocious, cruel, or depraved (or involved torture)
(2) The defendant knowingly created a grave risk of death for one or more persons in addition to the victim of the offense
(3) The defendant killed the victim while lying in wait
(4) The murder was committed for pecuniary gain or pursuant to an agreement that the defendant would receive something of value
(5)The defendant caused or directed another to commit murder, or the defendant procured the commission of the offense by payment, promise of payment, or anything of pecuniary value
(6) The murder was committed to avoid or prevent arrest, to effect an escape, or to conceal the commission of a crime
(7) The defendant has been convicted of, or committed, a prior murder, a felony involving violence, or other serious felony
(8) The capital offense was committed by a person who is incarcerated, has escaped, is on probation, is in jail, or is under a sentence of imprisonment
(9) The victim was a government employee, including peace officers, police officers, federal agents, firefighters, judges, jurors, defense attorneys, and prosecutors, in the course of his or her duties
(10) The victim was an elected or appointed official or former official of the federal government, or local or state government, and the killing intentionally prevented the victim’s official duties
(11)The murder was committed against a person held as a shield, as a hostage, or for ransom
(12)The defendant used chemical, biological, or radiological weapons and/or the person intentionally killed more than one person in one criminal episode
(13)The victim was a pregnant woman and the defendant intentionally killed the victim, knowing she was pregnant
(14)The defendant committed treason
(15)The defendant’s possession of the weapon used to commit the class 1 felony constituted a felony offense under the laws of the state
(16)The defendant intentionally killed more than one person in more than one criminal episode
(17)The defendant committed the class 1 felony against the victim because of the victim’s race, color, ancestry, religion or national origin.
Though I am not licensed in Colorado, I would estimate that the applicable District Attorney’s Office would have no problem satisfying one of these aggravating factors by using either 1, 2, or possibly 3. Without knowing the definition in Colorado for the terms in factor “1,” it seems to me that proving that this crime was especially heinous or atrocious will be relatively easy. When one thinks of murder, it’s always heinous and atrocious, but premeditating a murder of numerous innocent movie goers in a fashion such as, this no doubt satisfies this factor. The St. Valentines Day Massacre was just that, and this seems to be its equivalent. Anyone who shoots several rounds into a group of people would satisfy factor “2” so that seems to be a given. Lastly, factor “3” could potentially be used, as with premeditation in this type of scenario naturally seems to come “laying in wait” to commit this heinous act. No doubt there was preparation involving waiting to see what individual theatre would show the movie, and when that information was learned, if Holmes did leave the weapons in the theatre prior to patron entry the District Attorney may be able to argue that qualifies him as “laying in wait” under factor “3.”
Holmes’ criminal defense attorney will no doubt investigate Holmes’ mental health for a possibility to using an insanity defense if for nothing else but to avoid execution. The District Attorney’s Office in Colorado bears the burden of proving sanity beyond a reasonable doubt under the M’Naghten standard. The M’Naghten standard states that a defendant should not be held responsible for his actions if 1) he did not know his act would be wrong, or 2) he did not understand the nature and quality of his actions. Additionally, Colorado incorporates the “Irresistible Impulse Test” as a safety net in essence for defendants which essentially says that despite a defendant knowing right from wrong, the defendant is subject to “the duress of such mental disease [that] he had… lost the power to choose between right and wrong” and his freedom to choose was essentially destroyed.
No doubt the Colorado District Attorney’s Office has what it needs to charge capital murder. However. if the defense of insanity is raised there may be a high hurdle to leap in affecting the death penalty in this case. As with all cases, time will tell. Despite being a criminal defense attorney, in situations such as these, it is my hope that justice will be served and theses families receive some form of closure for their terrible and senseless loss.
Jason Mayberry is an attorney located in Clearwater, Florida practicing throughout the Tampa Bay area. Our practice focuses on Federal and State criminal defense, personal injury and medical malpractice, and family law. Thank you for reading our blog and if you have questions or are in need of an attorney, please do not hesitate to call us at 727-771-3847 or visit us on the web at www.pinellas-dui-attorney.com.