The man accused of carrying out the Colorado cinema shootings wants to change his plea to not guilty by reason of insanity, his lawyers said, despite their fears that it could severely hamper his ability to mount a defence against the death penalty.
James Holmes is charged with more than 160 counts of murder and attempted murder over the July 20 massacre in Aurora, at a packed cinema showing a premiere of the latest Batman film that killed 12 people and injured 70. Prosecutors said last month they would seek the death penalty.
Holmes, 25, was widely expected to plead insanity given the compelling evidence against him, but his lawyers put it off for weeks, saying state laws on the death penalty and insanity overlapped in ways that violated his constitutional rights and his ability to mount an effective defence.
They fear that if Holmes does not co-operate with doctors who will evaluate his sanity at the state mental hospital, he could be barred from calling witnesses 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 co-operate 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 could not 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.
Holmes was supposed to enter a plea on March 12, but his lawyers said he refused to do so because the constitutional questions prevented them from giving him good advice. The judge in charge at the time, William Sylvester, entered a standard not guilty plea for him.
Judge Sylvester withdrew from the case on April 1, saying his administrative duties as chief judge of the district would not allow him enough time. He assigned District Judge Carlos Samour to take over. If the judge accepts the plea, Holmes would be sent to the state mental hospital, where doctors would determine whether he was sane at the time of the shootings. If they determine Holmes was insane, a jury could still find him guilty.
Colorado law defines insanity as the inability to distinguish right from wrong, caused by a diseased or defective mind. The law specifically excludes depravity, "moral obliquity" and passion caused by anger, hatred or other emotions from being considered insanity.
Prosecutors say Holmes spent months buying guns and thousands of rounds of ammunition, donned police-style body armour and opened fire during a midnight screening of Batman film, The Dark Knight Rises.