The StandDown Texas Project

Colorado Roundup - Polling, Holmes Case

"What poll means for death penalty," is the title of a Denver Post editorial.

Interestingly, 57 percent of Coloradans said they did not think the death penalty deters murders.

Another revealing statistic: 53 percent said they thought the death penalty was applied fairly in Colorado, despite a mountain of evidence that its use in death-penalty eligible cases is quite arbitrary.

How informed are Coloradans about the death penalty debate? Forty-four percent said they had heard or read "a little" about the debate while 26 percent said they had heard or read "nothing at all."

Only 30 percent said they had heard or read "a lot" on the subject.

Of those Coloradans who did support abolishing the death penalty, the top reason was listed as, "No one has the right to take a life/It's murder." The second most-cited reason was, "Fear of executing an innocent person/Irreversible."

Those seem like pretty good reasons for opposing the death penalty — and there are many more — although apparently they don't resonate with most Coloradans.

We hope the conversation continues and that the governor leads it, polling aside.

Also in today's Post, the news article, "James Holmes' attorneys suggest they might withdraw his insanity plea," by John Ingold.

Attorneys for Aurora movie theater shooting suspect James Holmes have suggested they might withdraw his insanity plea if his upcoming independent psychiatric evaluation doesn't go their way.

This month, Holmes formally pleaded not guilty by reason of insanity, prompting the judge to order him to undergo a mental-health evaluation at a state hospital in Pueblo.

Earlier coverage of the Colorado public opinion polling, James Holmes case, and the Nathan Dunlap reprieve begins at the links.

Colorado Judge Rules State's Insanity Defense Laws Constitutional

The Denver Post reports, "James Holmes trial: Judge clears insanity plea's constitutionality," by John Ingold.

Colorado's laws for insanity pleas do not violate the U.S. Constitution, the judge in the Aurora movie theater shooting murder case has ruled.

The judge's order clears up the last disputed issues around a tendered insanity plea for theater shooting suspect James Holmes. Judge Carlos Samour, who issued Wednesday's ruling, is expected to decide at a hearing on Friday whether to accept Holmes' insanity plea.

Attorneys for Holmes argued that the state's laws on insanity pleas violated Holmes' rights against self-incrimination.

The laws require defendants pleading not guilty by reason of insanity to cooperate in a court-ordered independent psychiatric evaluation. If defendants do not cooperate, they will be barred from calling any mental-health experts of their own to testify on their behalf at trial — or at a death-penalty sentencing hearing.

Holmes' attorneys said the laws amounted to a compulsion to confess. They also said the law hurts Holmes' rights to due process because evidence of noncooperation could be used against him. "[I]t is well settled and fundamental that a defendant may not be penalized for the exercise of his Fifth Amendment right to remain silent," Holmes' attorneys wrote in a motion earlier this year.

"James Holmes' Insanity Challenge Rejected: Judge Upholds Colorado Laws As Constitutional," is Dan Elliott's AP filing, via Huffington Post.

Colorado's laws on insanity pleas and the death penalty are constitutional, a judge ruled Wednesday, rejecting a key argument by lawyers for the defendant in the deadly movie theater shootings.

Attorneys for James Holmes contended the laws could work in combination to potentially cripple the insanity defense if the case ever gets to a jury. They wanted Judge Carlos A. Samour Jr. to address their concerns before Holmes formally enters a plea of not guilty by reason of insanity.

Wednesday's ruling could clear the way for Samour to accept Holmes' insanity plea at a hearing scheduled for Friday. But the defense could ask the state Supreme Court to overturn the ruling, further delaying the case.

And:

In his ruling, Samour said the law's restrictions on presenting mitigating evidence about a defendant's mental state are not as broad as the defense claimed.

Samour also said he would require state doctors to get Samour's permission to use a narcoanalytic interview, noting that prosecutors have already agreed to such an arrangement.

Holmes needs court permission to change his plea because a judge entered a standard not guilty plea on his behalf in March. Samour is likely to approve the change, but Holmes would first have to agree to the conditions, including the requirement that he cooperate during the mental evaluation.

"Theater-Shooting Suspect Loses Death Penalty Law Challenge," is by Joel Rosenblatt for Bloomberg News.

Samour ruled the Colorado death penalty law is constitutional “on its face” without applying it to Holmes’s case in particular, Steinhauser said. Lawyers for Holmes may appeal the ruling or wait to see if the alleged flaws in the law end up applying to their client and challenge it later, she said.

Public defenders representing Holmes objected on due process grounds to a provision of Colorado law blocking him from calling witnesses at any sentencing hearing to present evidence about his mental condition if he doesn’t cooperate with court-appointed psychiatrists. Under state law, psychiatrists can require Holmes to submit to interviews under the influence of a so-called truth serum, according to Steinhauser.

The judge who previously handled the case, William Sylvester, ruled that prosecutors may require Holmes to submit to a “narcoanalytic interview” under the influence of “medically appropriate” drugs. Such drugs can enable a person to recall something they’re having difficulty remembering.

Earlier coverage of the James Holmes case begins at the link.  The Nathan Dunlap case is also active in Colorado.

James Holmes' Attorneys to Persue Insanity Defense

"James Holmes seeks not guilty insanity plea in Aurora theater shooting," is the Denver Post report by John Ingold.

James Holmes wants to plead not guilty by reason of insanity to the killing of 12 people and the injuring of 70 others in the Aurora movie theater attack.

In a one-page court filing Tuesday, Holmes' lawyers wrote they intend to "tender a plea of not guilty by reason of insanity."

Holmes would need the judge's permission to change his plea from the standard not guilty plea currently entered on his behalf. Judge Carlos Samour Jr. wrote in an order Tuesday that he will allow Holmes' attorneys to argue at a hearing Monday morning that they have "good cause" for the plea change.

"After the Court determines whether 'good cause' exists, it will decide how to proceed," Samour wrote in his order.

If Samour allows Holmes to enter an insanity plea, state law requires Samour to immediately order an independent psychiatric evaluation for Holmes. The current February trial date would probably be moved, legal experts said, and the case — already pending for nearly 10 months — would stretch out significantly longer.

"Colorado Shootings Suspect to Enter Insanity Plea," is the AP filing, via the New York Times.

The man accused in the deadly Colorado theater shootings wants to change his plea to not guilty by reason of insanity, his lawyers said Tuesday, despite their fears that the plea could severely hamper his ability to mount a defense against the death penalty.

James Holmes is charged with more than 160 counts of murder and attempted murder in the July 20 assault on a packed Aurora movie theater that killed 12 and injured 70. Prosecutors announced last month they would seek the death penalty.

Holmes was widely expected to plead insanity given the compelling evidence against him, but his attorneys put it off for weeks, saying state laws on the death penalty and insanity overlap in ways that violate his constitutional rights and his ability to mount an effective defense.

One of their worries: If Holmes doesn't cooperate with doctors who will evaluate his sanity at the state mental hospital, he could be barred from calling witnesses to testify about his mental condition during sentencing. That would make it nearly impossible for his lawyers to use his mental state as an argument against the death penalty.

"If you don't cooperate during the evaluation phase, you lose the right to call witnesses in your own behalf who could help convince a jury that your life should be spared," said Karen Steinhauser, an adjunct law professor and former prosecutor.

Two judges previously refused to address the constitutionality question, saying Holmes couldn't challenge the insanity law unless he entered an insanity plea first. That gave his lawyers little choice but to enter the plea and then try to make their case against the law.

Their filing Tuesday made it clear they are not giving up their right to challenge the laws, Steinhauser said.

Earlier coverage of the Colorado theater shooting case begins at the link.

Colorado Case Roundup

"Judge to set Chuck E. Cheese killer Nathan Dunlap's execution dates," is Karen Augé's report for the Denver Post.

Some 13 years after he killed three teenagers and their 50-year-old manager as they were cleaning up and closing an Aurora Chuck E. Cheese's restaurant, Nathan Dunlap is expected to learn on Wednesday when he will be executed for the crime.

Dunlap will appear before Judge William Sylvester in an Arapahoe County district court, where the judge will schedule an execution date at least 90 days but no more than 120 days in the future. The exact date will not be disclosed, but the judge will set a one-week window.

It will mark the first time a death date has been set in Colorado since the October 1997 execution of killer Gary Davis.

But few expect that Dunlap will actually die during the week Sylvester sets.

A number of issues remain to be resolved in the case, including an appeal by Dunlap's attorneys to unseal the secret Department of Corrections document that describe how an execution will be carried out. A state appeals court has already ruled against Dunlap in that case.

In addition, his attorneys have said they will seek clemency from Gov. John Hickenlooper.

AP coverage is, "Execution Week to be Set for Inmate Convicted of Fatally Shooting 4 at a Colorado Pizza Restaurant," by Dan Elliot.  It's via the Republic.

Colorado has executed only one person in more than four decades — the state's last execution was in 1997 when Gary Lee Davis was put to death for his conviction in a 1986 slaying. In 2003, three inmates had their death sentences commuted to life in prison without parole after the U.S. Supreme Court ruled that juries, not judges, should impose capital punishment.

Three men are now on Colorado's death row — Dunlap, Sir Mario Owens and Robert Ray. Each was sentenced by a jury.

Dunlap can still ask Gov. John Hickenlooper for clemency. His lawyer, Phil Cherner, said a clemency request would be submitted after the judge sets a week for an execution.

Hickenlooper's spokesman, Eric Brown, said the governor hasn't decided whether he would grant clemency.

KDVR-TV reports, "Expert: Hickenlooper May Commute Chuck E. Cheese Shooter's Execution," by Will C. Holden.

The execution date is expected to be set for this summer, but there’s a chance Governor John Hickenlooper will commute the death sentence, instead giving Dunlap life without parole.

“He (Hickenlooper) is ambivalent about it now, and he’s being pushed by several people to commute the death penalty of Nathan Dunlap,” criminal defense lawyer Dan Recht said. “He may well do that.”

If he does, Recht said, it might send the state of Colorado mixed messages, especially with the looming trial of accused Aurora theater shooter, James Holmes. Prosecutors have stated intentions to will seek the death penalty for Holmes, as well.

“Would Hickenlooper also consider commuting a death penalty for James Holmes?” Recht asked. “It’s an interesting question, and it could leave people wondering about the viability of the death penalty, which of course most of the state legislature is wondering about.”

Also from Colorado, there is news on the Aurora movie theater shooting case of James Holmes.  ReutersLegal posts, "Accused Colo. gunman's lawyers may enter insanity plea over his objections," by Keith Coffman.

Lawyers for accused Colorado theater gunman James Holmes are questioning the constitutionality of the state's insanity defense law, court records released on Tuesday show, and raising the possibility that they may enter an insanity plea over his objections.

Public defenders for Holmes, 25, said in a filing that there is "significant uncertainty and confusion" in Colorado law surrounding an insanity defense in the context of a case where prosecutors are seeking capital punishment.

That puts defense attorneys in a quandary, they wrote, because they cannot vouch for "the cognitive ability of their mentally ill client to understand complex legal concepts that few lawyers understand."

"That is one reason why Colorado's insanity statute provides a mechanism for entering (an insanity plea) over the objections of a defendant in some circumstances."

Earlier coverage of the Nathan Dunlap and James Holmes cases, at the links.  Also available, coverage of the Colorado repeal legislation considered earlier this year.

David Dow on the Holmes Case

University of Houston Law Professor David R. Dow writes, "Death Penalty Is The Wrong Punishment For James Holmes," for the Daily Beast.

“Justice is death.”

With those three words, Arapahoe County District Attorney George Brauchler attempted on Monday to justify his decision to seek the death penalty for James Holmes, who is charged with murdering twelve people and injuring 58 more in a movie theatre in Aurora, Colo., last July.

And:

Any human being who loves someone else can understand the impulse to see a murderer put to death. A version of that impulse explains why some loved ones of Holmes’s victims urged the district attorney to seek death; and it is precisely that impulse that explains why those survivors claim they cannot wait to witness Holmes’s execution.

But that impulse is an emotion, not a reason, and while it is easy to understand why many people have it, Brauchler should know the difference between a raw feeling and a reasoned argument. By ignoring that distinction, he has not only perverted the meaning of justice; he has insured that those who lost loved ones on that terrible night last July will have to keep reliving the horror, and looking at the face of the killer, for years to come.

Slate's Explainer posts "Capital Decision: James Holmes’ prosecutors will seek the death penalty. How do they decide that?"  It's by Brian Palmer.

Prosecutors announced Monday that they would seek the death penalty against James Holmes, who is accused of killing 12 people in a Colorado movie theater in July. The district attorney contacted 800 people affected—victims and their family members—before making the decision. What factors do prosecutors consider when deciding whether to seek death?

Number of victims, money, public opinion, and perhaps race. There is a formal layer and an informal layer to a prosecutor’s decision to seek the death penalty. He first must establish that the case involves one of the state’s aggravating factors, which are supposed to separate ordinary murders from the exceptionally bad. James Holmes clearly satisfied two of Colorado’s 17 aggravating factors: He killed multiple victims and put bystanders at risk. Formal eligibility, however, is a low bar. A 1997 study concluded that seven out of eight first-degree murders in California between 1988 and 1992 included at least one aggravating factor, but prosecutors pursue capital punishment in only a small fraction of eligible cases. Whether a prosecutor will actually seek the death penalty depends more on local political culture, office resources, and personal opinion than on statutory considerations. Statistical analyses also suggest that unconstitutional factors such as race and gender are involved.

Earlier coverage from Colorado begins at the link.

The Insanity Defense

 Today's Los Angeles Times publishes the editorial, "Defending the insanity defense."

The Supreme Court refused this week to review the murder conviction of an Idaho man who was prevented by state law from offering an insanity defense. The court's abdication of its responsibility encourages other states to dismantle a central principle of Anglo-American law: that a defendant should not be held criminally responsible when mental illness makes it impossible for him to tell right from wrong.

Contrary to what viewers of television courtroom dramas may believe, a plea of not guilty by reason of insanity is seldom asserted and usually unsuccessful. But there are cases — probably more than the judicial system recognizes — in which it is clear from medical evidence that a defendant is not responsible for his actions.

The principle that such people may not be held criminally responsible was articulated in the famous M'Naghten Rule announced by the British House of Lords in an 1843 murder case: A defendant is insane if at the time of the crime he either didn't know that what he was doing was wrong or was unable to understand the nature and quality of his act. Half the states, including California, employ a form of M'Naghten. In all, 46 states employ some version of the insanity defense, though some also provide for the (logically self-contradictory) verdict of guilty but mentally ill.

"Crazy Making: The Supreme Court is wrong to let Idaho have no insanity defense," is Emily Bazelon's commentary at Slate.

Earlier this month, Jared Loughner was sentenced to life in prison at a sober proceeding in which survivors of his terrible shooting spree in Arizona, and their families, recognized the role his schizophrenia played in his crimes. They talked about their understandable hurt and anger, and they also recognized that Loughner didn’t get the mental health care he needed. (Mark Kelly, the husband of former Rep. Gabby Giffords, whom Loughner shot in the head, usefully highlighted the expiration a decade ago of the federal law that banned the sale of the rapid-fire ammunition clips Loughner used.)

It took months of medication and treatment for Loughner to understand the charges against him. That comes as no surprise, given the disturbed-looking photos of him after the crime. And the country got a similar view of violence and untreated mental illness in James Holmes, the 24-year-old who shot up a movie theater in Aurora, Colo., in July. Both Loughner and Holmes spiraled out of control while enrolled at a university yet fell through the holes of the health care net that should have caught them. This is a story we’ve been hearing since at least the 2007 mass killing by a student at Virginia Tech.

The mental illness of criminal defendants, however, is not of current interest to the Supreme Court. This week, the justices turned down a case challenging Idaho’s complete lack of an insanity defense. In Idaho, “mental condition” is not a defense to any charge of criminal conduct. In the case the Supreme Court won’t hear, John Joseph Delling, a paranoid schizophrenic, shot and killed two of his friends and wounded a third while seized by the delusion that he was a “type of Jesus” and that his friends were “taking his energy” in a way that would kill him. A psychologist testified that he truly—and delusionally and tragically—believed he had to stop his friends to save his own life.

"Supreme Court declines to review insanity defense appeal," is the November 26 Reuters post, via the Chicago Tribune.  It's by Jonathan Stempel.

A divided U.S. Supreme Court on Monday refused to hear an appeal over whether criminal defendants have a constitutional right to assert an insanity defense, leaving in place a paranoid schizophrenic's guilty plea over two murders.

With three of its nine justices dissenting, the court without explanation declined to take up the case of John Joseph Delling, who had been sentenced to life in prison in Idaho over the 2007 shooting deaths of David Boss, a childhood friend, and Brad Morse, whom he had met playing online video games.

And:

Three justices - Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor - would have considered Delling's appeal.

"The law has long recognized that criminal punishment is not appropriate for those who, by reason of insanity, cannot tell right from wrong," Breyer wrote for the dissenting justices.

He said Idaho's standard "permits the conviction of an individual who knew what he was doing, but had no capacity to understand that it was wrong."

Idaho, Kansas, Montana, Nevada and Utah have since 1979 passed laws abolishing the insanity defense, though Nevada's supreme court later revived the defense in that state.

"Justices decline to consider whether Constitution requires insanity defense," is by Robert Barnes for the Washington Post.

All states and the federal government once allowed the insanity defense. But that changed with the public outrage over John W. Hinckley Jr.’s acquittal for reasons of insanity in his assassination attempt on President Ronald Reagan in 1981.

Many states and the federal government reacted by shifting the burden of proving insanity to the defense. But four states — Idaho, Kansas, Utah and Montana — do not allow the defense. Without it, Delling pleaded guilty to second-degree murder.

Delling’s lawyer, Stanford law professor Jeffrey L. Fisher, told the court that the “moral integrity of the criminal law has depended, in part, on the insanity defense.”

Punishment is traditionally justified on the basis of an individual consciously choosing evil over good, Fisher wrote. “Laws such as Idaho’s abandon that basic tenet,” he said.

Fisher contends that Idaho’s law violates the Constitution’s guarantee of due process of law, as well as the Eighth Amendment’s prohibition of cruel and unusual punishment.

While the Supreme Court has approved states that limited the use of the insanity plea, it has never taken up the question of whether there is a constitutional right to the defense.

Related posts are in the mental illness and the not guilty by reason of insanity category indexes.

Plea Gives Victims Chance to Heal in Peace

That's the title of an editorial in today's Arizona Republic on the Loughner plea agreement.

Jared Loughner's plea deal is a chance for those he hurt to continue healing in peace. It was the least painful option for the families of those he killed and the survivors of his horrible actions.

There was no question of guilt.

This seriously mentally ill young man admitted crimes we all know he committed. In doing so, he escaped the death penalty. He will spend his life in prison for killing six people and wounding 13 others, including then-U.S. Rep. Gabrielle Giffords.

This is justice.

It is also compassion for those whose lives he shattered.

And:

It is incorrect to suggest Loughner is getting off easy. There is nothing decent to be gained by seeking the execution of a young man whose actions were controlled by untreated mental illness. A young man who became "human," as the psychologist put it, because he finally got treatment for his schizophrenia. There is nothing easy about a 23-year-old facing life in prison.

What happened in the courtroom was an aching step toward closure. As Giffords' husband, Mark Kelly, put it: The "pain and loss" Loughner caused "are incalculable."

But, Kelly said, "avoiding a trial will allow us -- and we hope the whole southern Arizona community -- to continue with our recovery and move forward with our lives."

There is no happy ending here. But this plea agreement was the best option available.

David Kaczynski has posted, "A sign of progress?"  He's an anti-violence activist and Executive Director of New Yorkers for Alternatives to the Death Penalty.  Here is his statement, in full:

We learned yesterday that the man responsible for killing six people and injuring many others, including a member of Congress, in a shooting rampage in Arizona in 2011 will not receive the death penalty. Jared Loughner, who is diagnosed with schizophrenia, yesterday entered a plea that will keep him imprisoned for the rest of his natural life.

In accepting the plea deal, prosecutors cited the wishes of victims and their families to avoid the re-traumatizing ordeal of a high-profile, long-running criminal trial. In contrast, in 1998 my brother Ted Kaczynski - diagnosed with schizophrenia in five separate psychiatric evaluations - faced a capital trial in which federal prosecutors pushed hard for the death penalty. A plea agreement for a life sentence was offered only after the trial started to unravel around Ted's mental illness, and after his family refused to keep quiet about the barbarity of trying to execute a mentally ill man who'd been turned in by his family members.

What few people realize is that the overwhelming majority of criminal defendants who have serious mental illness are ruled legally sane (just as Loughner was yesterday) and thus they are equally exposed to the death penalty as would be any defendant without mental illness.

What we see in our current legal system is a huge disconnect between the modern medical understanding of mental illness and a badly outdated legal definition of insanity. As a result, more than 100 people with the most serious types of mental illness have been executed in the US since 1976, according to a 2003 study published by Amnesty International. That disheartening number includes several psychotic defendants who acted (and often acted-out) as their own defense attorneys at trial.

Yesterday, however, sanity prevailed. Lawyers, victims and their families, and the Attorney General all quietly agreed that justice would not be served by seeking a death sentence for someone as sick as Jared Loughner.

Let us hope that, at last, we have turned a corner in appreciating that criminal defendants diagnosed with severe and persistent mental illness should be treated as a separate category; and that our commitment to protecting society and to holding offenders accountable does not mean that we have to kill people whose judgment was compromised by severe illness.

Earlier coverage of the Loughner plea agreement begins at the link.  An earlier OpEd by Kaczynski on mental illness and the criminal justice system is also available.

High Profile Arizona Case Nears Plea Agreement

"Loughner plea deal involves some risk," is the Arizona Republic report by Michael Kiefer.

The evidence against Jared Loughner in the mass shooting in Tucson last year is overwhelming, and if he were tried and found guilty, a jury could sentence him to death.

Still, sources close to the case said Saturday that a possible deal is in the works in which Loughner would plead guilty and be sentenced to life in prison. News reports said Loughner, who was diagnosed as schizophrenic, is now competent to stand trial, although a federal judge would have to approve.

The news raised questions about why federal prosecutors would weigh such a deal in a high-profile crime that claimed the lives of six, wounded 13 and outraged the nation. Federal and state prosecutors have sought the death penalty for defendants accused of murdering even one person.

And:

Loughner's struggles with mental health have played out in court and in court filings. He exploded in one of his early hearings in U.S. District Court. His lead attorney, Judy Clarke, whose specialty as an attorney is in keeping high-profile defendants off death row, argued against his forcible medication and the matter went to the 9th U.S. Circuit Court of Appeals, which eventually allowed the medicating. Clarke maintained that the drugs used to control his schizophrenia could also deaden his personality and feelings so as to affect his appearance at trial and negatively influence a jury.

"If Loughner is competent now, the question is whether he can remain competent during the stress of a lengthy trial," said Dale Baich, assistant federal public defender in Phoenix, who specializes in death-penalty appeals in federal court but is not involved in Loughner's defense.

Just as Clarke wants to save Loughner from being executed, federal prosecutors, led by Assistant U.S. Attorney Wallace Kleindienst, may want to cut off the risk that a jury would find Loughner not guilty by reason of insanity.

"Competence Was Linchpin for Both Sides in Tucson Case," is the New York Times report by Fernanda Santos.

From the outset, the case against Jared L. Loughner carried risks for both the prosecution and the defense.

Legal experts said there was ample evidence to prove that Mr. Loughner was the man behind last year’s shooting rampage in Tucson, which killed six people and wounded 13 others, including Gabrielle Giffords, a member of the House of Representatives who was holding a constituent event in the parking lot of a supermarket.

But a conviction was far from certain. Even if Mr. Loughner was deemed legally sane to stand trial, jurors could conclude that he was not when the shootings occurred, the legal experts said.

His lawyers were hoping to push for an insanity defense, but if convicted, Mr. Loughner, 23, would most likely face a death sentence. Instead, he is scheduled to plead guilty on Tuesday, after psychiatric evaluations and notes from his court-ordered treatment at a federal psychiatric hospital in Springfield, Mo., established that he was fit to stand trial, according to two people briefed on the developments who were granted anonymity to discuss a legal proceeding.

The plea would bring an abrupt resolution to a case that for some time seemed ensnarled in doubts over Mr. Loughner’s mental health and a seemingly steadfast resolve among prosecutors to bring him to trial.

“I think everybody concluded it’s a better resolution,” said A. Bates Butler III, a former federal lawyer in Arizona who has been closely following the case.

A plea deal would carry none of the costs, dangers or emotional toll of a trial, he said, and would probably spare Mr. Loughner from the death penalty.

The case is referenced in this post.