Created on Friday, 08 March 2013 Written by DAN ELLIOTT,Associated Press
DENVER (AP) — The judge in the deadly Colorado theater shootings has denied a request by defense lawyers to declare a state law on the insanity plea unconstitutional.
In a ruling released Friday, state District Judge William Sylvester granted one defense request, for a written explanation of the consequences of pleading not guilty by reason of insanity.
The ruling appears to clear the way for suspect James Holmes to enter a plea as scheduled on Tuesday. His lawyers had said they could not give Holmes effective advice on how to plead because of questions they had about the insanity law.
Holmes is accused of killing 12 people and injuring 70 at a movie theater in the Denver suburb of Aurora on July 20. He is charged with multiple counts of murder and attempted murder.
His attorneys have said they are considering entering an insanity plea on his behalf. That would have both benefits and risks for him.
If the jury finds him not guilty by reason of insanity, he would avoid prison or execution. Even though he could be sent to the state mental hospital indefinitely, he might be released someday if doctors find he is no longer insane. But under Colorado law, an insanity plea means prosecutors would have access to potentially incriminating evidence such as mental health records.
If Holmes simply pleads not guilty, prosecutors would not have access to that evidence. But that plea would remove the possibility of being committed to the mental hospital.
Regardless of whether he pleads insanity, Holmes could get the death penalty or life in prison without the possibility of parole if he were convicted.
Prosecutors have not said if they will seek the death penalty. They must declare their intentions within 60 days of the day Holmes enters his plea.
Holmes' lawyers asked Sylvester to overturn the insanity law, arguing it was unconstitutionally vague and violated Holmes' Fifth Amendment protection from self-incrimination.
Sylvester's ruling, dated Thursday, said appeals courts already have upheld the insanity law. Sylvester also said he would not address some questions raised by the defense because they were hypothetical.
The judge released a proposed advisement outlining the possible consequences of an insanity plea. The draft confirms the plea would give prosecutors access to any comments Holmes makes during a mental evaluation.
If Holmes does not cooperate during a court-ordered examination, Sylvester wrote, psychiatrists could develop an opinion about his mental state based on evidence, including his medical history.
Sylvester did not address whether an insanity plea would mean prosecutors could examine a notebook Holmes mailed to a psychiatrist he had seen professionally before the shootings.
Associated Press writer Colleen Slevin contributed to this report.