Courtesy: Jeff Kandyba
Courtesy: Jeff Kandyba
James Holmes has been charged with 24 counts of murder in the shooting deaths of a dozen people at an Aurora, Colo., movie theater.
So, what happens next?
A tentative timeline is already set: A preliminary hearing is scheduled for Nov. 13, after which Holmes will be arraigned and asked to enter a plea. Prosecutors will then have 63 days to decide whether or not to seek the death penalty.
But that one court date is about the only thing set in stone right now.
"This is going to be a big fight," Colorado criminal defense attorney Kimberly Diego tells E! News when asked for her expert take on what to expect as the state looks to convict Holmes of 24 counts of murder (one count charging "deliberation" and "intent" and another charging "universal malice" and "extreme indifference for life" for each victim), 116 counts of attempted murder, one count of enhancement for his use of firearms and one count of illegal possession of an explosive or incendiary device.
"I think it is safe to say the district attorney is going to charge someone with as many crimes as is plausible and applicable to what happened," Diego says of the doubled murder rap. "The truth is, the main difference between the two is that extreme indifference is a lot easier for them to prove. But this is completely normal. They are going to charge the thing that is hard to prove and easier to prove just in case they can't meet the burden of proof on the more difficult charge."
The next big issue, Diego says, is a notebook that Holmes reportedly sent to his therapist that is now in the hands of the Arapahoe County District Attorney's Office.
Holmes' attorney has accused law enforcement of leaking word of the notebook's existence to the media, which could, in turn, bias a potential jury pool. There is also the question of whether the notebook's contents are privileged due to doctor-patient confidentiality.
Diego predicts that the prosecution will argue that Holmes waived privilege, but she believes that the defense will succeed in getting the notebook thrown out of evidence.
"I think [the defense is] right to make a big deal on this," she said. The matter will likely be addressed at a hearing set for Aug. 9.
Then there's the matter of whether or not Holmes will plead not guilty by reason of insanity.
Diego observed that Holmes seemed to be more alert and aware of his surroundings when he was charged yesterday, so perhaps, she says, they are moving away from that mode of defense.
Regardless, insanity is difficult to prove.
"The insanity defense essentially requires that the defendant be unable to distinguish right from wrong," says Diego. "Evidence of premeditation tends to make the assertion of an insanity defense difficult. Insanity is an affirmative defense, meaning that once it is raised by the defense and a certain evidentiary threshold is met, the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant is not insane."
"However," Diego adds, "insanity is not raised until defenses are endorsed, which is typically not done until a trial date is set."
Insanity is not to be confused with competency, Diego notes. The test for competency is whether or not Holmes actually understands what is going on around him, whether he gets that he is to be put on trial for murder.
Diego says it can take months of evaluation to determine competency, but an insanity defense doesn't have to be broached until 30 days before trial.
"It would make more sense for there to be a competency issue first and then insanity," she says. "You can be competent but insane. [And] you can be incompetent, but not insane."
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