James Holmes hearing: At last, a chance for victims to testify

The preliminary hearing into the shooting attack in Aurora, Colo., last summer that left 12 people dead and 58 wounded opened Monday, offering a week-long window into details of the mass shooting at a midnight screening of “The Dark Knight Rises.”

Most intriguingly, testimony at the hearing could shed light on the mindset of the alleged shooter, James Holmes, the former neuroscience graduate student whose hair was colored the same orange as that of the Batman movie villain the Joker.

Until now, most key documents in the case have been kept locked up, with very few released to the public, most heavily edited. Three days after the shooting on July 20 in the Denver suburb, District Judge William Sylvester ordered attorneys and investigators to refrain from speaking about the case publicly.

The purpose of the preliminary hearing in Centennial, Colo., is for Judge Sylvester to decide whether or not there is probable cause for a trial down the road. The hearing will feature testimony by witnesses who will be questioned by both the prosecution and defense. There will be no jury.

In the very first session Monday, a police officer, Jason Oviatt, described finding Mr. Holmes outside the theater in the moments after the shooting, saying the suspect was “very relaxed,” without “normal emotional responses to anything,” The New York Times reported.

But beyond making details of the attack public for the first time in the hearing, the procedure will serve several other functions, perhaps none more poignant than creating a potential emotional outlet for victims and their families who will have the chance to testify.

Doug Godfrey, professor of law from Chicago Kent, says he will be watching for how many eyewitnesses are put on the stand, as opposed to police. He says the amount of time given to the hearing – five days, which is very rare – is indicative of motivations that go beyond fact and legal findings.

“There has been a huge movement in criminal law toward giving victims a voice in what happens – which provides both some solace and closure,” he says. 

The hearing could also allow prosecutors and defense lawyers to assess the other’s strengths and weaknesses, potentially providing the backdrop for Holmes to negotiate and accept a plea agreement before trial that could see him avoid the death penalty.

“The evidence is overwhelming in this case, so it might be just the opportunity Holmes needs to strike a deal that could spare his life,” says Robert Pugsley, professor of law at Southwestern Law School in Los Angeles.

Legal analysts say they are keen to find out how the defense will proceed.

“It's difficult to say whether a theory of defense will be articulated, although one likely theory might be mental and/or emotional incompetence,” says Bennett Gershman, law professor at Pace University in New York. “The evidence of guilt is so powerful that I don’t think Holmes has any possible chance of prevailing on the merits.” [Editor's note: The original version of this story gave the wrong first name for Professor Gershman.]

For both sides, preliminary hearings can be useful as a way to freeze a witness's testimony, analysts say.

“If they change their story later, they can be challenged on it. Especially in a case like this, which will undoubtedly take a very long time to get to verdict, it will be useful to have people commit on the record, under oath, to what they remember,” says Joel Jacobsen, an assistant attorney general in the criminal appeals division for New Mexico. “What they remember three years from now, after telling the story a million times to their friends, could well be different.”

What is clear is that the court has its work cut out for it, say analysts.

Holmes is charged with 160 counts, including attempted murder and murder. Officials say he was wearing body armor and a gas mask when he threw two canisters of gas and began shooting at the midnight showing of the movie, a much-anticipated conclusion of the latest Batman movie series.

“The judge's job will be to keep track of a lot of detail, roughly four to six elements for more than 160 crimes, which is a lot,” says Jacobsen. “Essentially the prosecution has to touch each and every one of those bases. So the legal questions will be detailed, but the answers to each question will be simple: yes or no.”

Holmes’s attorneys reportedly have told the judge that Holmes is mentally ill but have not divulged whether or not they intend to use the insanity defense. They say he was seeing a university psychiatrist and that he tried to call that psychiatrist, just minutes before the shooting began.

But according to Mr. Jacobsen, the insanity defense is hard to win.

“Among other things, it requires a person to admit that they committed the crime, so it precludes any defense that the police might have erred – and takes as its starting point that the defendant has done something wrong, or in this case monstrously, inconceivably horrible.”

He says the percentage of cases in which the insanity defense leads to a not guilty verdict is something close to 5 percent.