MIND GAMES: Chasing the insanity defense in the courts

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AURORA | With the announcement that prosecutors will seek the death penalty for James Holmes — having balked earlier at a deal for life in prison instead — the case appears headed for an insanity defense, experts say.

James Holmes, Aurora theater shooting suspect, sits in the courtroom during his arraignment in Centennial, Colo., on Tuesday, March 12, 2013. Judge William Blair Sylvester entered a not guilty plea on behalf of James Holmes on Tuesday after the former graduate student's defense team said he was not ready to enter one. (AP Photo/Denver Post, RJ Sangosti, Pool)
James Holmes, Aurora theater shooting suspect, sits in the courtroom during his arraignment in Centennial, Colo., on Tuesday, March 12, 2013. Judge William Blair Sylvester entered a not guilty plea on behalf of James Holmes on Tuesday after the former graduate student’s defense team said he was not ready to enter one. (AP Photo/Denver Post, RJ Sangosti, Pool)

With that, the case could be poised for a drawn out slog in courtrooms and the state mental hospital. The trial, which Holmes’ defense said will take nine months, is likely a year away — at least. So far, Holmes’ defense team has not publicly announced whether they would change their client’s plea to insanity, but his lawyers have said in open court and in several motions that they are considering such a plea.

“I think at this point the defense is going to do whatever they can to save their client’s life,” said Karen Steinhauser, a law professor and former Denver prosecutor. “And that means they are going to most likely plead not guilty by reason of insanity.”

Prosecutors have a mountain of evidence against Holmes, so the plea might be his only chance to avoid a death sentence.

An insanity defense will mean Holmes is shipped from the Arapahoe County Jail to the state mental hospital in Pueblo for multiple rounds of evaluations, a process that takes months. That process could be even further away as Holmes’ eventual meetings with state doctors could be delayed as the defense fights state law surrounding insanity defenses.

Holmes’ defense team has already raised issues with the state’s rules for an insanity defense, arguing in March that the state’s laws are unconstitutional because they pressure a defendant to cooperate with doctors and possibly incriminate themselves.

Judge William Sylvester rejected those arguments, in part because the question of the death penalty was only a hypothetical at the time. Now that prosecutors have announced plans to seek the death penalty, Steinhauser said the defense will likely appeal the original ruling and continue their fight against the law.

That fight could mean several months before the defense even makes a decision on an insanity defense.

Once Holmes enters an insanity plea, it will likely be at least two months before the first doctor’s evaluation is sent to the court, said Andrew Donohue, a doctor of osteopathy and forensic psychiatrist for the state of Delaware.

Donohue, who has conducted several evaluations of defendants in insanity cases, said doctors usually take 60 days to evaluate a defendant and finish their report. But in high-profile cases, it can take longer, he said.

The evaluations consist largely of one-on-one interviews between a forensic psychiatrist and the defendant, he said, and sometimes medical tests such as CT scans and MRI exams are used.

For doctors, the evaluations can be a challenge because they are trying to determine what the defendant’s mental state was at the time of the crime, not what their mental state is at the time of the interview.

Doctors also look for signs of possible “malingering” — the medical term for faking it.

“Sometimes it’s a defense of last resort if someone is caught red handed,” he said.

That means guilty defendants will see faking a mental illness as their only option for avoiding a harsh punishment.

Donohue said doctors will try to see how a patient behaves when they don’t think they are being monitored. If a defendant seems mentally ill during the evaluation, but appears to be fine when they socialize in other situations, that’s a red flag for doctors, he said.

Liza Gold, a forensic psychiatrist and clinical professor of psychiatry at Georgetown University School of Medicine, said doctors will want to evaluate Holmes over the course of several interviews. But if he doesn’t cooperate, the doctors will rely on other resources to make their decision as to whether he was sane at the time of the killings.

“It certainly can make it more difficult, but it doesn’t make it impossible,” she said.

Gold, who has conducted several evaluations in insanity defense cases, said doctors can rely on medical records, videotaped interviews with police, interviews with people who knew the defendant and other resources.

In Holmes’ case, doctors could also rely on a notebook Holmes mailed to his psychiatrist a short time before the shootings. That notebook contains details about the rampage, including crude drawings of his plans, according to media reports.

At Holmes’ preliminary hearing in January, prosecutors detailed his meticulous planning in the days and months leading up to the shooting, seemingly laying the groundwork for an argument that Holmes knew what he was doing when he opened fire inside the packed theater, killing 12 and injuring 70. That planning included several months spent stockpiling his arsenal and multiple trips to the theater to take reconnaissance pictures of the exit doors.

Gold said planning isn’t evidence of sanity. People can be mentally ill and still have the capacity to make detailed plans, she said.

“The ability to organize and carry out a plan doesn’t mean that plan is not based on delusional thinking,” she said. “You can have a plan that is delusional.”

Gold said Holmes will likely be evaluated by multiple doctors, and those doctors could reach different conclusions, including some doctors ruling him sane, while others say he is insane.

“Different doctors will come to different conclusions. There can be an honest disagreement between experts based on the evidence they are presented,” she said.

In the case of Brian Allen Washington, who was convicted of gunning down an Aurora police detective in 2006, state doctors ruled he was sane, but a doctor hired by the defense ruled him insane. At trial, a jury found Washington sane, but convicted him of a lesser charge than prosecutors sought.

Steinhauser said in Holmes’ case, the ultimate decision about whether he was sane during the slayings won’t be up to doctors.

“The jury has the final say with regard to the issue of sanity,” she said. “So regardless of what the doctors say, it would still be up to the jury to decide.”