August 1st, 2012
11:24 AM ET

Legal analyst: Why Colorado shooting suspect was charged in 'unusual' way

Editor's note: Paul Callan is a CNN legal contributor, a criminal defense attorney and a former New York homicide prosecutor,  including in the "Son of Sam" case. He is a senior partner at Callan, Koster, Brady & Brennan, LLP. Callan spoke with CNN about the charges that Aurora, Colorado, shooting suspect James Holmes is facing.

Can you explain the charges James Holmes is facing?

Paul Callan: Colorado prosecutors have charged the defendant, James Holmes, with 142 counts of criminal conduct for his alleged role in the Colorado movie theater massacre. The staggeringly large number of serious charges is not surprising given the number of victims in the case. (Twelve people were killed and 58 others injured.)

While prosecutors could have proceeded with a more streamlined case, they have elected the safer route of charging as many crimes as possible as the prosecution begins. The case can be streamlined later on if problems develop in proving some of the crimes listed. Additional charges may also be lodged in the future relating to the incendiary devices found by law enforcement authorities at Mr. Holmes' apartment.

Why is Holmes facing two charges for each person who was either killed or injured in the shooting? Is there a strategy behind this?

Callan: Prosecutors have elected to assert two counts of first-degree murder for each person who was killed as a result of the hail of gunfire in the Aurora movie theater. This approach is somewhat unusual.

The first of each of the murder counts alleges that Holmes “after deliberation” intentionally caused the death of his victims. This is the traditional premeditated murder charge that is used in cases of intentional murder throughout the United States. Prosecutors will seek to prove that the murders were planned and that Holmes formed an “intent” to kill his victims before pulling the trigger.

A second more unusual first-degree murder count was added for each victim charging that the manner in which the killings took place evinced "... an attitude of universal malice manifesting extreme indifference to the value of human life. …” In many states, this is called a “reckless indifference” murder and is quite different from intentional, premeditated murder. It requires an act of callous and reckless indifference to the value human life which causes death.

An example might be a drunken driver who speeds down a busy city sidewalk, striking and killing pedestrians in the process. Even though the killings may not have been planned or even intended, the conduct is so grossly reckless and maliciously indifferent to the possibility that someone might be killed that the law says it is just as bad as premeditated murder. In fact, in Colorado intentional murder and extreme indifference murder both carry the same potential sentences: life imprisonment or the death penalty.

Prosecutors have hedged their bets by adding the “extreme indifference” counts because proving the intent to murder each individual victim may be problematic. Some victims may have been killed by ricochets, or it is even possible that Holmes’ weapon was aimed at the screen when some of the fatal shots were fired. We won’t really know all of the details until the evidence is presented.

Should Holmes' lawyers assert that mental illness prevented him from forming the specific intent to kill particular victims, these additional counts will give jurors an alternative theory of guilt. Firing a weapon of any kind in a crowded theater would easily constitute an act of “extreme indifference” murder under Colorado law.

Does charging that way leave open the door for a capital case? Is there another intent behind that second charge?

Callan: The second charge was not added to increase the likelihood of capital punishment. Although the penalty can be imposed for extreme indifference murders, it is more commonly imposed in cases of intentional premeditated murder. Prosecutors have taken this approach to ensure that each victim’s family can find some measure of justice in a guilty finding on at least one count relating directly to their loved one’s loss.

Prosecutors will be confident that even if the intentional murder of a victim cannot be established, the killing was most surely caused by “extreme indifference to the value of human life” when gunfire was directed at the interior of a crowded movie theater.

The same two-count theory was used in the form of attempted murder counts lodged for many other victims who survived the tragedy but almost suffered death. The prosecutors' rationale for this approach would be the same as with the murder counts.

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Filed under: Colorado • Crime
soundoff (211 Responses)
  1. banasy©

    Good call, Colorado.

    August 1, 2012 at 11:52 am | Report abuse |
  2. Superman

    A pool of eels might be good here for his punishment

    August 1, 2012 at 11:54 am | Report abuse |
  3. Superman

    @banasy if there was a way to stop such carnage before it happens that would be better its horrible what he has done

    August 1, 2012 at 11:57 am | Report abuse |
    • banasy©

      Of course it would be better to stop something like this before it happens; I was just saying that I thought it was good for Colorado to add the reckless indifference murder charges in addition to premeditated murder.
      What this guy did is inexcusable, IMO.

      August 1, 2012 at 12:42 pm | Report abuse |
  4. Bill

    Please don't hate me for this, but I just find it hard to believe we charge someone with "indifference to human life" and then threaten the death penalty. Just a strange irony of, well, human life.

    August 1, 2012 at 12:27 pm | Report abuse |
    • banasy©

      Therein lies the conundrum...
      For all intents and purposes, either way, this guy's life is *over*...

      August 1, 2012 at 12:46 pm | Report abuse |
    • Boo

      Bill...good point.....

      August 1, 2012 at 1:50 pm | Report abuse |
    • DrMeatwad Phd

      Bill, that irony is from the judeo-christian morals deeply established into our law.

      August 3, 2012 at 2:14 pm | Report abuse |
  5. Marci

    CNN – "Unusual Charges" v "Unusual Way" are two different things.

    August 1, 2012 at 12:32 pm | Report abuse |
    • banasy©

      Hi, Marci:
      That's according to Paul Callan, not CNN.

      August 1, 2012 at 12:49 pm | Report abuse |
  6. Obama Mama

    More restrictions on metally ill patients. Like a database.

    August 1, 2012 at 12:48 pm | Report abuse |
    • TC

      That would be nearly impossible to create. There are enough issues in creatin the DSM (Diagnostic and Statistical Manual of Mental Disorders). PLus the new DSM is going to have hoarding as a disorder/disease. Children are over diagnosed as ADD or ADHD cause parents don't feel like parenting and all sorts of other issues.

      I do applaude the fact that you are trying to think of ways to fix issues though. Always good to see people trying to be part of a solution.

      August 2, 2012 at 3:59 am | Report abuse |
  7. Steve

    So when are they going to tell the public about the second shooter in theater 8?

    August 1, 2012 at 12:48 pm | Report abuse |
    • banasy©

      Rounds came through the wall from theater nine into theater 8, but there was no second shooter.

      August 1, 2012 at 12:55 pm | Report abuse |
    • Sean

      @Steve, if that's an attempt to be funny, just don't. I like to think I have a good sense of humor, but there are just some things we shouldn't joke about out of decency.

      August 1, 2012 at 1:49 pm | Report abuse |
  8. banasy©

    EngRish major, lol...

    August 1, 2012 at 12:51 pm | Report abuse |
    • Josh

      Purplemate. have you have tried these meds you speak of. Please let me know what meds you think caused this horror in Aurora to happen.

      August 1, 2012 at 9:03 pm | Report abuse |
    • Joyce

      Read Freedom/Lover above. Maybe he knows.

      August 10, 2012 at 2:41 pm | Report abuse |
  9. chrissy

    Second shooter? Wth did that come from? Are you on drugs?

    August 1, 2012 at 12:53 pm | Report abuse |
    • DrMeatwad Phd

      Chrissy, the "second shooter" comes from those witnesses inside #9. Keep up will yuh?

      August 3, 2012 at 2:16 pm | Report abuse |
  10. Hope

    I wonder, myself, who was his roommate?

    August 1, 2012 at 12:57 pm | Report abuse |
  11. Sachmo

    He's not the joker, he's Bozo the clown.

    August 1, 2012 at 1:10 pm | Report abuse |
  12. saywhat

    such is the way of the Justice system. Prosecutors have to plug loop holes and Defense seeks them.
    Though in cases like these to us the common folks, it appears puzzling.An open and shut case, get on with sentencing.
    "premeditation"," indifference to human life" " incendiary devices" " hail of bullets" and so on.Where are the terrorism charges I ask again?
    Good morning all.

    August 1, 2012 at 1:38 pm | Report abuse |
    • banasy©

      Good morning, saywhat.
      I agree; where *are* the terrorist charges?
      I also agree that the unorthodox charging is so the defense, (and I wish this man would just plead guilty, for heaven's sake!) Cannot find a way to slip this person through some legalese loophole...sad, but it is what it is.

      August 1, 2012 at 2:24 pm | Report abuse |
    • TC

      No terrorism charge until you can prove the motive being of a political nature.

      August 2, 2012 at 4:02 am | Report abuse |
  13. GBIZZLE1

    I think if we decided as a country to treat those that commit a violent crime such as this should face the same torture as did Jesus in the movie "The Passion of the Christ", this movie will provide you with a visual on the immense torture one can endure. Then let him stand trial, so this person can hear "GUILTY" and get life alive or dead, it doesn't matter much.. Torture is the way to go... Those that molest would think twice to get the privates cut off... Don't you think?

    August 1, 2012 at 1:41 pm | Report abuse |
    • Nick

      I really laughed at this "this movie will provide you with a visual on the immense torture one can endure"

      Did you really just reference a movie in an argument as to what the human body can endure from the perspective of torture? Seriously? I really hate to wreck your day by saying this, but those people in your TV are called "actors" they aren't really doing the things you are's make Santa and the Toothfairy and your brain.

      August 1, 2012 at 2:12 pm | Report abuse |
    • banasy©

      Torture is not the way to go.

      August 1, 2012 at 2:14 pm | Report abuse |
    • Jeremy

      @GBIZZLE , Good example. We all know that after being tortured and killed, JC was never heard from again and that his punishment totally discredited him for future followers.

      August 1, 2012 at 4:36 pm | Report abuse |
  14. Jon

    It is unfortunate that defense lawyers are not given the ability to make sure that the trial is fair, and not find a way to squirm out of what they did.

    I find it sad that Colorado has to spend so much effort just to make sure that someone that is guilty can't find a loophole.

    August 1, 2012 at 2:09 pm | Report abuse |
  15. banasy©

    A Nikcki Minaj video?

    August 1, 2012 at 2:11 pm | Report abuse |
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