Colorado theater suspect charged with murder, attempted murder

CENTENNIAL, Colo. — James Holmes appeared just as dazed as he did in his first court hearing after the deadly Colorado movie theater massacre.

The suspect, 24, sat silently in a packed Denver-area courtroom on Monday, as a judge told him about the charges filed against him, including murder and attempted murder, in one of the deadliest mass shootings in recent U.S. history.

After the charges were read, prosecutors and defense attorneys sparred over whether a notebook that news reports said the suspect sent to his psychiatrist and had descriptions of the attack was privileged information.

It's an argument that foreshadows one of the case's most fundamental issues: Does the suspect have a mental illness and, if so, what role did it play in the shooting that left 12 people dead and 58 others injured?

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 added, “the things that we don't know are what this case is going to hinge on, and that's his mental state.”

In all, prosecutors charged the suspect with 142 counts in the shooting rampage at a midnight showing of the new Batman movie.

The suspect faces two first-degree murder charges for each of the 12 people killed and two attempted first-degree murder charges for every one of the 58 injured in the July 20 shooting.

The maximum penalty for a first-degree murder conviction is death. The multiple charges expand the opportunities for prosecutors to obtain convictions.

“It's a much easier way for the prosecution to obtain a conviction,” said Denver defense attorney Peter Hedeen. “They throw as many (charges) up as they can. If you think you can prove it three different ways, you charge it three different ways.”

Unlike the suspect's first court appearance July 23, Monday's hearing was not televised. At the request of the defense, District Chief Judge William Sylvester barred video and still cameras from the courtroom, saying expanded coverage could interfere with the suspect's right to a fair trial.

The shackled suspect did not react as the charges were read. At one point, the suspect, his hair still dyed orange-red, leaned over to speak with one of his lawyers and furrowed his brow. When the judge asked him if he was OK with postponing a hearing so his team could have time to prepare, he said softly: “Yeah.”

Some court spectators Monday wore Batman T-shirts. Several people clasped their hands and bowed their heads as if in prayer before the hearing. At least one victim attended, and she was in a wheelchair and had bandages on her leg and arm.

For the murder charges, one count included murder with deliberation, the other murder with extreme indifference. Both counts carry a maximum death penalty upon conviction; the minimum is life without parole.

In addition, the suspect was charged with one count of possession of explosives and one count of a crime of violence. Authorities said the suspect booby trapped his apartment with the intent to kill any officers responding there the night of the attack.

A conviction under the crime of violence charge means that any sentence, including life terms, would have to be served consecutively, not concurrently, said Craig Silverman, a former chief deputy district attorney in Denver.

That ensures that if laws change in the future, the person convicted would still serve a lengthy sentence, Silverman said.

Analysts expect the case to be dominated by arguments over the defendant's sanity.

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.”

The suspect's public defenders could argue he is not mentally competent to stand trial, which is the argument offered by lawyers for Jared Loughner, who is accused of killing six people in 2011 in Tucson, Ariz., and wounding several others, including U.S. Rep. Gabrielle Giffords.

If the suspect goes to trial and is convicted, his attorneys 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.

Defense attorney Tamara Brady said Monday she will subpoena University of Colorado, Denver, psychiatrist Lynne Fenton, whom the suspect had been seeing, to testify in a dispute over whether the notebook is privileged because of a possible doctor-patient relationship.

Arapahoe County District Attorney Carol Chambers disputed news reports that the notebook contained descriptions of an attack.

On Friday, court papers revealed that the suspects was seeing Fenton. They did not say how long or if it was for a mental illness or another problem. An online resume listed schizophrenia as one of Fenon's research interests.

The suspect's public defenders want to know who leaked the information to the news media. Prosecutors say the notebook was inside a package the suspect reportedly sent to Fenton at the university. The suspect came to the school's competitive neuroscience doctoral program in June 2011 and dropped out a year later.

Authorities seized the package July 23, three days after the shooting, in the mailroom of the medical campus where the suspect studied. A hearing on the matter was set for Aug. 16.

Sylvester set an Aug. 9 hearing on news organizations' motion seeking to unseal the case docket.

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 the suspect's year there.