Holmes Would Be Exception to Rule If Sentenced To Death

August 6, 2012

DIETER:  Nationwide, the use of the death penalty has fallen dramatically in the last two decades

CENTENNIAL–He’s accused of killing 12 people and wounding 58 in an unprovoked attack, but even if found guilty, it’s far from certain that James Eagen Holmes would be executed for those crimes.

When it comes to administering the death penalty, Colorado isn’t exactly Texas. Of the 33 states that allow capital punishment, Colorado ranks among the least likely to put a perpetrator on Death Row, according to the Death Penalty Information Center.

There are now three inmates on Colorado’s Death Row. Only a handful of states have fewer, including New Hampshire and Wyoming with one inmate apiece, and Montana and New Mexico with two. Utah, with a smaller population and lower per-capita murder rate than Colorado, has nine.

“When you come down to only having three people on Death Row, you’re in the bottom third,” said Richard Dieter, executive director of the Death Penalty Information Center. “Colorado uses the death penalty sparingly. There’s only been one execution in the modern era since the Supreme Court allowed the death penalty to come back in 1976.”

That lone inmate was Gary Lee Davis, who was executed in 1997 for the rape and murder of a Byers woman. Another Death Row inmate, Frank Rodriguez, died in prison of Hepatitis C in 2002. At least four others have seen their sentences reduced to life in prison without parole since the federal death-penalty ban was lifted 36 years ago.

Nationwide, the use of the death penalty has fallen dramatically in the last two decades. There were 78 death sentences handed down in 2011, a 65% drop from the 1990s, when the courts averaged about 300 per year, said Dieter.

All this bodes well for Holmes’ chances of being spared a sentence of death by lethal injection in the Aurora theater shooting. Working against Holmes is the heinous nature of the crime and the overwhelming evidence pointing to his guilt.

“This is hardly a whodunit,” said former Denver deputy chief district attorney Craig Silverman. “You don’t just have premeditation–you have months and months of premeditation. That’s all this case boils down to: Is he going to be sentenced to death or not?”

There’s also the location factor: Holmes was charged in the 18th Judicial District, Colorado’s equivalent of the hanging court. All three men on Colorado’s Death Row–Nathan Dunlap, Sir Mario Owens and Robert Ray–were prosecuted in the 18th, the latter two by District Attorney Carol Chambers, who’s leading the Holmes case.

Experts agree that the best–and perhaps only–defense for Holmes is to plead not guilty by reason of insanity. Such a plea rarely works, but it could create enough doubt about his mental fitness among jurors to allow him to escape a death sentence.

“I think they’ll try the insanity plea because they have nowhere else to go,” said Silverman. “I expect some mental-health professionals will be retained, and some of these professionals are very opposed to the death penalty.”

Prosecutors are likely to counter that Holmes’ extensive planning–he spent at least four months before the July 20 shooting ordering weapons and ammunition, then created an elaborate network of explosives in his apartment–shows that he was more than capable of coherent thought.

Under Colorado law, however, the burden rests with the prosecution to prove that the accused is not insane, rather than with the defense to prove that he is. In addition, Holmes need not be completely dysfunctional in order to qualify as insane or incompetent, said former Denver deputy district attorney Karen Steinhauser.

“People can be schizophrenic, people can be criminally insane but still be able to make plans,” said Steinhauser. “I don’t think evidence of planning this kind of event is dispositive of the issue, which is whether he was sane.”

Chambers has said she will consult with the victims and families before deciding whether to pursue capital punishment, which could also work in the defense’s favor.

“When you have multiple victims, not everybody is going to agree on how to proceed,” said Steinhauser. “They [prosecutors] are not bound by what the victims and the families want, but they’re going to have to weigh the comments of everybody involved.”

Some victims may push for a speedy resolution, and there’s nothing quick about a death sentence. Dunlap, who shot and killed four employees at a Chuck E. Cheese restaurant, has spent the last 16 years filing appeals from Death Row.

“The public defenders will likely concede that their client needs to be locked up for the rest of his life, and there will be tremendous pressure for the prosecution to accept that plea,” said Silverman. “[Otherwise], there isn’t going to be anything fast about this. The defense strategy is going to be to delay, then stall, then repeat the process.”

The next hearing is Thursday in Arapahoe County District Court on a motion filed by media outlets to unseal the case file. The preliminary hearing is scheduled for Nov. 13.

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