CENTENNIAL, Colo. (AP) — In the nearly eight months since James Holmes first shuffled into court with vacant eyes and reddish-orange hair, neither he nor his lawyers have said much about how he would plead to charges from the deadly Colorado movie theater shooting.
There have been plenty of hints, however. As his hair turned more natural-looking and his demeanor more even at court hearings, Holmes’ lawyers repeatedly raised questions about his mental health, including a recent revelation that he was held in a psychiatric ward for several days last fall, often in restraints, because he was considered a danger to himself.
If, as many expect, they enter a plea of not guilty by reason of insanity on his behalf Tuesday, it will clarify the court battle ahead: Was Holmes, 25, legally insane — unable to tell right from wrong — at the time of the shootings?
Pleading insanity could be the only way he can avoid life in prison or execution, given the evidence that has emerged so far, some legal experts said.
Prosecutors laid out a case that Holmes methodically planned the shooting for months, amassing an arsenal and elaborately booby-trapping his apartment to kill anyone who tried to enter. On the night of the attack, they say, he donned a police-style helmet, gas mask and body armor, tossed a gas canister into the seats and then opened fire.
The attack killed 12 people and injured 70 others.
“This is not a whodunit,” criminal defense attorney Dan Recht said in January. He is not involved in the case.
Holmes is charged with 166 counts, mostly murder and attempted murder, in the July 20 assault on moviegoers at a midnight showing of “The Dark Knight Rises” in Aurora, a Denver suburb.
If a jury agrees he was insane, he would be committed indefinitely to a state mental hospital. There would be a remote and unlikely chance he could be freed one day if doctors find his sanity has been restored.
The plea carries risk, however. Prosecutors would gain access to Holmes’ mental health records, which could help their case if the evidence of insanity is weak. If Holmes does plead insanity, the proceedings would be prolonged further while he is evaluated by state mental health officials.
“You heard the evidence they have. There is no doubt that he knew what he was doing was wrong, there’s no doubt it was premeditated,” said Tom Teves of Phoenix, whose 24-year-old son, Alex, died in the theater while shielding his girlfriend. “There’s no doubt he did it. Zero. So why are we playing a lot of games?”
Holmes could also plead innocent — not by reason of insanity — which would significantly change the court fight. Prosecutors would not have those medical records, but Holmes could be convicted outright, with a possible life term or death.
No matter how Holmes pleads, he could still be convicted and sentenced to execution or life in prison without parole. Prosecutors have 60 days after the plea to say whether they will seek the death penalty.
The hard-fought case has already taken some surprise turns, and Tuesday’s hearing could offer another unforeseen twist, including the remote possibility the two sides, ordered by the judge to not speak publicly about the case, have reached a plea agreement.
The case could also veer in other directions:
— Holmes could be ordered to undergo an evaluation to determine whether he is mentally competent to stand trial — able to understand what is going on in court and to help his lawyers. If he is found incompetent, the case would come to a halt and he would undergo treatment at the state mental hospital indefinitely, until doctors there say his competency has been restored.
— Holmes could plead guilty, but that appeared unlikely, given his attorneys’ vigorous defense, unless prosecutors offered a plea deal sparing him the death penalty or offering another concession.
— Some unforeseen issue raised by attorneys could delay the case, or Holmes could be absent, as he was at a November court date that corresponds roughly with the time he was taken to Denver Health Medical Center’s psychiatric ward.
Since his arrest outside the theater, his attorneys have aggressively challenged prosecutors, investigators and even the constitutionality of Colorado law nearly every step of the way.
Just this month, they asked the presiding judge, William Sylvester, to rule parts of the state insanity law unconstitutional, arguing it raised too many questions for them to give Holmes effective advice. Sylvester refused.
“This is going to take some time. You know, I remind myself that they got the guy, he’s not going anywhere,” said Tom Sullivan, whose 27-year-old son, Alex, died on his birthday at the movie theater. “I don’t know what kind of shape he’s in right now, but you assume it’s not a pleasant experience what’s going on right now.”