Holmes death penalty: Decision doesn't rule out plea deal later

Prosecutors will seek the death penalty for Aurora movie shooter James Holmes, they announced Monday.

"For James Eagan Holmes, justice is death," District Attorney George Brauchler said in court.

The decision was, in many ways, not a surprise – and doesn’t remove the possibility that the two sides may reach a plea bargain down the road to avoid a lengthy trial.

That Mr. Holmes was the shooter is not really in doubt, though his defense team has repeatedly emphasized his questionable mental state in their filings, and it’s all but certain that they will pursue an insanity defense. (At his arraignment last month, the judge entered a not guilty plea on his behalf after his lawyers said they weren't yet ready to enter a plea.)

The nature of the case – a bloody attack during the midnight screening of "The Dark Knight Rises," that killed 12 and wounded 58 others – made the decision to seek the death penalty likely. "But all plea bargaining possibilities are still open to the parties," says Daniel Recht, a prominent Denver criminal defense attorney.

In the case of Tucson shooter Jared Lee Loughner, for instance, prosecutors also initially said they were seeking the death penalty before ultimately accepting a guilty plea in exchange for life in prison without parole.

That's the same deal that Holmes and his attorneys offered in court filings last week in this case, but prosecutors dismissed the offer as a publicity stunt. In a written response, Mr. Brauchler said the move was improper at this stage, and "was filed for the intended purpose of generating the predictable pretrial publicity."

Prosecutors have also said they lack the information they need to seriously consider such an offer at this point, and that the defense has refused to give them the information they've requested to evaluate a plea deal.

Most likely, that information pertains to Holmes's mental state at the time of the shooting, says Karen Steinhauser, a former prosecutor who is now a defense attorney and professor at the University of Denver's law school.

"Right now, the indication is that they don’t believe there is anything out there that is mitigating against the death penalty being appropriate," says Ms. Steinhauser.  "I’m certain that when and if they see any mitigation, they will take that into determination."

Since 1977, when Colorado's death penalty was reinstated, the state has executed just one person, and has three people currently on death row. (All the state's death penalty cases have come from the same Arapahoe County jurisdiction where Holmes is being tried.)

The fact that a full trial would be very lengthy, involve numerous appeals, and the statistical chance that Holmes would ever actually be executed even if he is initially found guilty is a prime reason that prosecutors might be open to a plea deal, says Mr. Recht. Victims' families often want closure and finality, and may not want to see the case drag on.

The second reason for a plea deal is the chance that Holmes could be acquitted if the evidence for mental illness is strong enough. "By not entering into an agreement, the prosecution runs the risk that the jury will find Mr. Holmes not guilty by reason of insanity, and then not subject to the death penalty or any penalty," says Recht.

Going forward, a big factor in prosecutors' decision is likely to be the wishes of the victims and their families, says Steinhauser, noting that those wishes may change over time, as the reality of a lengthy and uncertain trial settles in. 

"As this case progresses, they’ll be seeking and getting more input from victims and victims' families in this case as to what the families want," Steinhauser says. "The district attorney makes the ultimate decision, but they are absolutely going to listen and take into consideration what the people most affected by this case want."

Anecdotal evidence has suggested a range of feelings among families currently. "My original thought was 'thank goodness, I am so glad this is happening,' " Bryan Beard, a friend of one of the Aurora victims, told the Associated Press Monday, after the announcement that prosecutors were seeking the death penalty.

But Pierce O'Farrill, who was shot three times at the theater, had a different view. If the case goes to trial, "all of us victims would be dragged along potentially for years," Mr. O'Farrill, told the AP. "It could be 10 or 15 years before he's executed. I would be in my 40s and I'm planning to have a family, and the thought of having to look back and reliving everything at that point in my life, it would be difficult," he said.

Currently, the trial is scheduled for Aug. 5, but it's unlikely that that will take place. Far more likely are either that a plea deal will be reached, in which prosecutors accept a guilty verdict in exchange for life in prison without the possibility of parole, or that the defense files a not guilty by reason of insanity plea, which would slow the whole process down significantly.