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Gazette Premium Content Court gets sanity report in Colorado theater shooting

The Associated Press Published: September 9, 2013

DENVER — Prosecutors and defense lawyers in the Colorado theater shootings are getting their first look at a long-awaited opinion from a state psychiatrist on whether defendant James Holmes was legally insane when he killed 12 people and injured 70.

The report from the state mental hospital, filed with the court on Friday, won't be the final word on Holmes' mental state — that will be up to the jury in Holmes' trial next year.

But it will be a critical piece of evidence as jurors consider whether Holmes should be found not guilty by reason of insanity and committed indefinitely to the state hospital, or convicted of murder and sentenced to life in prison or death by lethal injection.

"It's probably the most important expert witness that we have at this point," said Karen Steinhauser, a former prosecutor who is now in private practice and teaches at the University of Denver. She is not involved in Holmes' case.

Holmes has pleaded not guilty by reason of insanity and is charged with more than 160 counts of murder and attempted murder.

Prosecutors say he spent months buying guns and ammunition before he dressed up in a police-style helmet and clothing and began shooting in a suburban Denver theater in July 2012.

Prosecutors say he also rigged his apartment with home-made bombs designed to divert police from the theater. They didn't explode.

Defense lawyers acknowledge Holmes was the gunman, but they say he was mentally ill and "in the throes of a psychotic episode."

Holmes underwent a mandatory sanity evaluation at the Colorado Mental Health Institute in Pueblo this summer after he entered his insanity plea.

It could be a while before the public hears the results of the evaluation. The report isn't automatically a public document, officials said, and until the contents are discussed in open court or written about in a motion, they will remain secret.

Neither prosecutors nor defense lawyers will speak publicly outside court because of a gag order.

The report will say whether the psychiatrist who led the evaluation — who works for the state mental hospital — believes Holmes meets Colorado's legal definition of insanity: the inability to tell the difference between right and wrong because of a mental disease or defect.

Very few people qualify, even if they have been diagnosed with mental illness, said Steven Pitt, a forensic psychiatrist in Scottsdale, Ariz.

"The diagnosis itself doesn't give someone a get-out-of-jail card," said Pitt, who isn't working on the Aurora case.

The psychiatrist who led the evaluation could be called to testify. That person has not been publicly identified.

Jurors will have other evidence to consider about Holmes' sanity. Either side can ask for an evaluation by another psychiatrist and call others to testify about Holmes' behavior.

"Anyone who was in a position to observe his mental state, to observe how he was acting, whether he seemed to understand what was going on," Steinhauser said.

If the state psychiatrist's report concludes Holmes was insane, prosecutors are more likely to accept a bargain that would put Holmes in prison for life with no possibility of parole in exchange for a guilty plea, said Dan Recht, an attorney and past president of the Colorado Criminal Defense Bar.

Prosecutors might still convince jurors to convict Holmes, "but most juries would be very loath to have someone executed where there's a significant debate about whether the person was even sane at the time," he said.

Holmes' lawyers said in March that Holmes had offered to plead guilty if prosecutors didn't seek the death penalty, but prosecutors rejected the deal.

___

Follow Dan Elliott at http://twitter.com/DanElliottAP

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