James Holmes murder trial: Defence prepares to build case for insanity

Attorneys for James Holmes will open their case Thursday, offering a less emotional and more clinical assessment of the Colorado theatre shooter after two months of often-gruesome testimony from prosecution witnesses who included many visibly wounded survivors.

Without the scores of victims on their side, Holmes' defence team plans to present its evidence in less than a quarter of the time taken by prosecutors. Their goal is not only to keep the gunman out of prison but also to keep him alive.

The attorneys have said their case will focus tightly on mental illness in a bid to prove to jurors that Holmes was legally insane when he opened fire on a packed movie premiere in 2012, killing 12 people and wounding 70. Even if Holmes's team is unsuccessful, legal experts say, the coming days may be the attorneys best chance to convince jurors that he should not be executed if he is convicted.

"What the defence is going to try to do is say, `This would have never happened but for the intervention in this guy's life of very serious mental illness,"' said George H. Kendall, who has handled other high-profile death-penalty cases. "While the harms have been overwhelming, there's just no way to disassociate all that carnage from the fact that his control system is all screwed up."

Two psychiatrists who examined Holmes in the months and years after the shooting concluded he was sane. But defence attorneys say Holmes suffered schizophrenia and was in the grips of a psychotic episode so severe it rendered him unable to tell right from wrong — Colorado's standard for an insanity verdict.

If jurors agree, Holmes would be committed to a state mental hospital indefinitely.

The insanity defence is successful in only about 25 per cent of felony trials in which it is raised nationally, and the odds are worse in a high-profile homicide.

Holmes's attorneys will call at least two mental health experts of their own who studied Holmes closer to the time of the shooting and declared him insane. They will try to show jurors that Holmes' mental decline was far greater than the other doctors knew, in part because those doctors analyzed him much longer after the attack.

In Colorado, prosecutors have the burden of proof in insanity cases. Most states and the federal system place that burden on defendants. But the defence case is critical, in part because jurors could use information they hear in the verdict phase if the trial advances to a sentencing phase. Studies show that jurors often enter the penalty phase with their minds made up about an appropriate sentence, even though they are instructed not to do so.

"The defence is going to say, 'There's no question he was able to inflict a ton of carnage here, but do we give society's harshest sentence to someone who is severely mentally ill?"' Kendall said.

Dr. William Reid, a state-appointed examiner who interviewed Holmes for 22 hours in sometimes-chilling videotaped sessions shown to jurors, conducted the interviews two years after the attack, well after Holmes had started taking anti-psychotic medication. Under defence attorney Daniel King's questioning, Reid acknowledged that memories can change and fade in that time span.

Has been treated by 20 doctors

Since his arrest, Holmes has been treated by 20 doctors, and all agreed he suffered some sort of psychosis, King said during opening statements. Jurors are likely to hear from some of them. They will also hear about Holmes's family history of mental disease and could see jailhouse video of Holmes running head first into walls and falling backward off his bed in a November 2012 episode that sent him to a hospital.

Around the same time, Holmes was found naked, licking walls and eating lunch meat between two paper cups. King said he was crying and ranting about seeing shadows.

Some of the witnesses will look familiar. defence attorneys have indicated they plan to call Lynne Fenton to the stand again. She is a University of Colorado psychiatrist who saw Holmes five times before the shooting and grew concerned that he was having "paranoid delusions" and "psychotic-level thinking."

"They are going to present every single witness they possibly can if the court allows it, anybody who has evidence regarding mental illness," said Denver defence attorney Iris Eytan, who initially represented Holmes but is no longer involved in the case. "They don't need to save anything right now. They are trying to save his life."

Even the spiral notebook in which Holmes planned for "maximum casualties" is important for his attorneys, who will instead focus on the incoherent rambling and pages in which he self-diagnoses his "broken mind."

"This notebook is a whole lot of crazy," King said.

Jurors are often skeptical of the insanity plea and its implications, said Michael Perlin, professor emeritus at New York Law School. Insanity defences are successful in only 25 per cent of felony trials nationally.

"You've got this feeling that they are going to walk because they've seen it on Law and Order, and this feeling that he could have overcome it if he had just tried harder," Perlin said.