Colorado Theater Shooting: James Holmes' Attorneys Fight Prosecutors Over Package

[Omaha Steve]

Source: ABC

By CHRISTINA NG (@ChristinaNg27) and CLAYTON SANDELL (@Clayton_Sandell)

Colorado prosecutors are fighting shooting suspect James Holmes' attorneys over a package the alleged mass murderer sent to the school psychiatrist he was seeing.

Holmes' attorneys filed a motion Friday demanding that the court "immediately produce all discovery pertaining to the seizure of the package."

The filing revealed that Holmes was under the psychiatric care of Dr. Lynne Fenton, the University of Colorado's director of student mental health services, and it confirmed that he mailed a package to his doctors that authorities have since seized.

Holmes, 24, is accused of going on a shooting spree in an Aurora, Colo., movie theater during a midnight showing of "The Dark Knight Rises" on July 20. Twelve people were killed and 58 wounded.

FULL story and video at link.



Read more: http://abcnews.go.com/US/colorado-theater-shooting-james-holmes-attorneys-fight-prosecutors/story?id=16878933#.UBSVIKCmSSo

[antigone382]

1. This is kind of a detraction from the story...

But I find it both offensive and annoying that the anchor guy describes the psychiatrist's specialty in schizophrenia as "chilling."

[MichiganVote]

2. Also idiotic. Masters level and Doctorate level clinicians are all well versed in schizophrenia.

ANY credible psychiatrist is capable of assisting personality disorders, mood disorders and/or schizophrenia

[Occulus]

3. My dirty mind read that COMPLETELY differently.

[randome]

10. LOL!

You really know how to change the pacing of a thread, don't you?

[Javaman]

12. Me too! I thought, "well, this is a really bizarre turn of events!"

[DallasNE]

4. The Next Logical Question Is

How long had Holmes been seeing this doctor. Why that matters is because it seems his name should have been on a list prohibiting him from buying any of that $15,000 worth of death and destruction. Does the Doctor have liability for not reporting Holmes name to ATF authorities or ATF for not processing the data in a timely manner. Will we see additional charges filed in this case? Something is not right. The system seems to be broken with the result in this case 12 killed and another 58 injured. We need answers.

[AtheistCrusader]

5. There are rules by which a person gets put on that list for mental health issues.

So far, there is no evidence he tripped any of those triggers. Simply being under care for various mental health issues is not prima facie evidence to remove people's rights by due process.

There ARE some triggers by which due process can do that, but again, no evidence of that being the case here. (So far.)

[DallasNE]

6. But We Don't Know What The Triggers Are

So we have no idea at this point whether Holmes should have triggered the alert process. If due process takes 10 months then that is not acceptable and due process must be modified (won't help in this case).

In most of these cases the shooter has been in treatment but nothing happens. In the Virginia Tech case the shooter had been in treatment for years but he stopped treatment as soon as he turned of age. He bought his stuff off the internet legally. Is the NRA blocking attempts to keep guns out of the hands of the deranged? Something is clearly broken and doing nothing is tragic. And the "something" I am talking about only affects those diagnosed with a severe mental health problems such as Holmes. My guess is that in this case the broken procedures were being followed and that is the problem and what I am attempting to call attention to.

[AtheistCrusader]

8. Um, yes, we do know the triggers.

COLORADO

It is illegal for people to possess firearms, under Colorado law, if they are ineligible to possess firearms under federal law (Colo. Rev. Stat. § 18-12-203(1)(c)).

Court clerks must report periodically to NICS the name of anyone:


1. determined by the court to be incapacitated;

2. committed to the custody of the Division of Alcohol and Drug Abuse in the Department of Human Services;

3. ordered for involuntary certification for short-term treatment of mental illness;

4. ordered for extended certification for treatment of mental illness; or

5. ordered for long-term care and treatment for mental illness (Colo. Rev. Stat. §§ 13-5-142, 13-9-123).

[DallasNE]

11. Those Aren't Triggers

Those are court orders. What triggers the courts to get involved. An obvious trigger would be to commit a crime which immediately involves the courts. Doctors can recommend treatment for adults but not directly compel them to treatment. Does the doctor take the case to a medical review board and they take it to court or how does that happen?

Lastly, how many names did Court Clerks in Colorado submit last year to NICS where an actual crime was not involved. That would be a good measurement of effectiveness of current protocol. I suspect that number would be in the single digits.

[Igel]

16. People.

Flawed people. (Still looking for those "perfect people.&quot

It's easy not to interact with the court system. I'd rather have teeth pulled than file for a court order. Double my taxes but keep the legal bills away.

It's also easy to be foolishly sympathetic. A homeless man in 1988 or '89 ran across the street and down the block just to slam my back and knock me down. A guy in one of my UG dorms kept stealing to pay for his drug habit. A friend in high school had an obvious dependency problem when he was a minor. I felt sorry for him.

It might have been best to have the homeless guy arrested. He was insane. The guy in college graduated, but perhaps having him arrested would have been better? Perhaps not--he'd not have graduated. But the third guy, the minor, should have been arrested and cleaned up. His dependency was psychological and by the time he got cleaned up after a suicide attempt he was 25 and all but homeless. What looks like mercy often shows all the consequences of hate.

Progressives should actually like the difficulty of implementing triggers. They're there to preserve individual civil rights and prevent involuntary incarceration. These are good values. The drawback is that in defending the innocent and providing for a long process we sometimes protect those who need help. It's clear after the fact that so-and-so needed help, and easy to wail that it's so hard to get it. But given the laxity of standards for incarceration and how those in asylums were treated, it's easy to see why it's so hard to get help.

1. determined by the court to be incapacitated;
Anybody, pretty much, could ask the court for this. I asked for my mother. She's my ward. Alzheimer's.

In AZ doctors can do this. They refer and it takes on a life of its own. But it's messy, they lose a patient, and so they often don't. My mother's doctor insisted I do it to relieve her responsibility. She also kept up with it to make sure I followed through. This bit is really state-dependent.

2. committed to the custody of the Division of Alcohol and Drug Abuse in the Department of Human Services;
This is for police and social workers.

3. ordered for involuntary certification for short-term treatment of mental illness;
My brother in law had a psychotic break. He'd been mentally ill for at least a year before then. But then one night he assaulted his brother. The brother wasn't going to press charges until their mother insisted, pleaded with that guy. Her son was sick. She couldn't take him to court, she didn't have it in her. That one punch got him arrested, got a psych eval, got the court order for temp forced medication and then long-term treatment and monitoring.

4. ordered for extended certification for treatment of mental illness; or
5. ordered for long-term care and treatment for mental illness
(3 often leads to 4 and 5. Things that lead directly to 4 or 5 are usually Real Bad Things.)

[-..__...]

7. ‘NICS Improvement Amendments Act of 2007’’.

http://www.gpo.gov/fdsys/pkg/BILLS-110hr2640enr/pdf/BILLS-110hr2640enr.pdf


The doctor had no legal obligation or requirement to file a report to the ATF, FBI/NICS (contrary to popular belief... the FBI is tasked with overseeing the NICS background check... not the ATF), or any other federal agency.

Mental health records can only be forwarded to the NICS system by the state, and only if that person has been ‘‘adjudicated as a mental defective’’ and ‘‘committed to a mental institution".

Only then, can a person be deemed a "prohibited person" disqualified from the purchase and possession of firearms for mental health reasons.

Even then... some state mental health officials have yet to forward their records to the feds (currently... 30 states are not submitting those records).

"Arizona Aftermath: More Than Thirty States Have Failed to Enact Laws Requiring Mental Health Records to Be Submitted to the National Gun Background Check Database".

http://www.sys-con.com/node/1694332

[DallasNE]

9. Thank You

This confirms what I have been driving at and that is that in reality in most States there is no current law to prevent people such as Holmes from getting weapons legally. Also, the language of the law reflects conditions roughly 50 years ago (committed to a mental institution) since President Reagan closed down all of the State run mental hospitals and dumped those people in the street. And how is one "adjudicated" to be "a mental defective".

Lastly, this kind of information is hard to come by. You never hear any discussion on these points in the media and unless you have at least some knowledge ahead of time it is very difficult to even Google for it. Example: I was thinking ATF since we are talking firearms when it is FBI which deals with criminals as a general rule.

Today on Fox News Justice Scalia said that "hand held" is the sole criteria on weapons and that a "hand held rocket launcher" would be protected. To me that would mean that a fully automatic AR-15 would also be protected since it too is hand held. And these too would be legal for people like Holmes.

[X_Digger]

13. I'm okay with requiring a court proceeding- that's due process.

I wouldn't be okay with a simple recommendation by a mental health care provider- there's no court proceeding, no way to object, no way to present counter-evidence.

Rights should not be removed without due process..

"nor be deprived of life, liberty, or property, without due process of law" -- fifth amendment
"nor shall any State deprive any person of life, liberty, or property, without due process of law" -- fourteenth amendment

[primavera]

14. Man, I don't envy the defense attorneys on this one

It's going to be so difficult to find anything upon which to base a defense, yet they're ethically bound to do their utmost on his behalf. Yuck. Glad I'm not in their shoes.

[wordpix]

15. his lawyers should just get him off on every technicality, even though there are dozens of witnesses

geesh, these lawyers will do anything to make a name for themselves. So Holmes mailed a package that the gov. had a robot deal with. That was the right thing to do; otherwise, what should the gov. had done? Given the package to the psychiatrist it was intended for, and maybe it was a bomb?

These lawyerly shenanigans will not get this guy off. He'll be in jail for the rest of his life on 12 counts of murder and 50 counts of attempted murder. His lawyers should just get on with the plea deal, trial or whatever and stop making up ridiculous arguments.

[Blue_Tires]

17. The attorneys still have to do their job and try every angle

You don't want the case thrown out because Holmes said he wasn't getting adequate representation, right??

And aren't these public defenders to begin with??

[happyslug]

18. Even the US Supreme Court has ruled, if you are insane you can NOT be found guilty of any crime.

That is the whole "Insanity" defense, if you are insane, you do NOT have the mental capacity to understand what you did was wrong. If you do not understand what you did was wrong, it is NOT a crime.

Now, this is NOT if you do NOT agree with a law. In such a case that fact you disagreed with it clearly shows you knew of the law and it was your INTENTION to violate it. Insanity is when you do an act NOT knowing what you are doing is a crime. In the Case of Holmes, he may have known that it was wrong to kill people, but he HAD TO DO IT because IT HAD TO BE DONE, is a sign of insanity. In such a scenario, he would have had NO CHOICE in the matter given his mental state.

Now the above is all speculation, but the only issue in this case is the mental capacity of Holmes. If he is same, he is guilty, if he is insane he is not. Now in the later case he will end up in a mental home, probably for the rest of his life but he would get the mental treatment he needs.

[AntiFascist]

19. There's evidence he knew he was going to go to prison...

from his alleged ad on a website:

http://www.huffingtonpost.com/2012/07/23/james-holmes-sex-site-all_n_1695708.html

where he asks "Will you visit me in prison?" Police were investigating this ad, so it doesn't sound like a hoax.

He could still be schizo, but using it as a legal defense may be difficult.

[wordpix]

20. how is he insane? He set out to create death & destruction, he planned it & premeditated the crime

My mother with advanced Alzheimer's---now SHE is insane. For example, a few nights ago I took some cucumbers out of a bag and she must have thought they were guns or something. She started screaming as if her life was being threatened when she saw the cukes.

If SHE had picked up a knife right then and stabbed me to death to defend herself against the cuke "weapons," she would get off on an insanity plea. Alzheimer's results in physical/chemical brain changes that cause delusions, hallucinations, and psychotic episodes.

But Holmes? I don't think so. He was sane enough to premeditate, order the guns and ammo, and booby trap his place. He knew perfectly well what he was doing.

[happyslug]

21. The issue of insantiy is what was his understanding of his intentions.

Under the Common Law, if a person did NOT have the mental capacity of a typical 14 year old, he or she was viewed as NOT having the mental capacity to commit a crime. No "evil mind". Now, children as young as 7 were held to this standard (there is a case in the 1700s where a 7 year old boy was hanged. the jury ruled he had the mental capacity of a 14 year old when he committed the crime).

There is the case of the Husband, upon hearing that his wife had an affair, upon hearing of the affair ran to his wife alleged paramour and shot him dead. The jury found that his rage on hearing of the affair put his mind in such a state that he no longer hand the capacity of a 14 year old, thus the defendant walked with a jury finding of insanity (This was an 1859 case, the husband later became a General in the Civil War).

When someone tried to kill Prescient Andrew Jackson in the 1830s, the assassin's intention was clearly to kill Jackson, the assassin's pistols misfired, something like a once in 38,000 chance (he was using TWO percussion pistols). At trial, it was found that the defendant intended to kill Jackson, he knew what he was doing, but the jury still held he did NOT have the mental capacity of a 14 year old and ruled him insane (The jury may have felt mercy on him, Jackson on seeing the pistols misfire started to hit the defendant with his cane).

Now, since 1900 the States have adopted other rules as to who is insane but the above understanding is still the basis of insanity defense. Age is no longer used as a guideline, but the test adopted often follow the concepts that an insane person is like children under 14 i.e. can have the ability to "Intend" to do kill someone and the ability to actually kill someone, but that by itself does NOT mean that the person fully understands what he or she is doing.

While under the Common Law. the law was that for the children below age 7, such children could never have the mental capacity of a 14 year old, between ages 7 and 14, the mental capacity was a jury decision on a case by case basis, over age 14 the law presumed you had the capacity of a 14 year old. This has all been changed by statute to use other more medical terms instead of age but the underlying concepts are best seen if we use age as a guideline.

The ages I am giving, 7 and 14 were guidelines under the Common Law. When the insanity defense was govern by the common law, the courts viewed the ages as something to give the jury to use as a guide. Since 1900, criminal trials have avoided using these ages as the actual test, but the tests adopted roughly follows the same concepts on mental development, thus why I am using them here. The actual tests set today, set by statute, are more detailed and harder for a defendant to meet, but the US Supreme Court has ruled that if someone does NOT have the capacity to understand what he did was wrong, he can NOT be convicted of a crime. Thus a state can NOT outlaw the insanity defense, for that would be a denial of due process.

Most insanity defenses fail, but often it is the only defense possible. I suspect it will be the only defense possible in this case. It will be up to a jury to decide if the defendant is insane, for insanity is a LEGAL STANDARD that a Jury will decide not a medical standard. Whatever the state says is the mental test for insanity will be used (the actual tests varies from state to state). There is enough facts leaked from various sources to justify an insanity defense, it is up to a jury if the defense succeeds or not. i.e. can the defense meet whatever is the requirement for insanity as set by State law? That is a tough job and dependent on how the courts have interpreted whatever is the governing statute.

[4th law of robotics]

22. Well they are obligated to do their best for their client

just because he is certainly guilty doesn't mean he loses his rights to a fair trial.