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. Roger

    Your scrolling headline reads:Why suspect was give 'unusual charges'. Please fix that.

    August 1, 2012 at 2:40 pm | Report abuse |
  2. Dodger

    So aside from him being found in his car saying he did it, what evidence has been released to support that he did it? Were his prints found on the 200+ shell casings that should be on the scene? There have been witness accounts that suggested a 2nd shooter. Until there is undeniable proof that he did it, he should still be treated as innocent. Clearly not whats happening now thanks to the media. Just like Sandusky, the public has condemned him long before his trial has been completed. Sad days we live in...

    August 1, 2012 at 3:01 pm | Report abuse |
  3. pennylane

    Why all the analycal and pycho the Colorado Tax payers their money and give the guy his "just dessert"..our legal system can be so fustrating...The state of Colorado is going to house, feed and provide mental and medical assistance to this killer while the legal system decides his fate. The victims and their families no longer have a "choice" he took that away from them..why does he still have his's so fustrating...I say throw him into the General Poplation of the l;ocal prison and let them show him "justice'....imagine the millions that can be sympathy or empathy for this soul less creature... 🙁

    August 1, 2012 at 3:12 pm | Report abuse |
    • Discontented1

      Because we are not like him, remember.

      August 1, 2012 at 4:50 pm | Report abuse |
    • Andy R.

      Because this the USA, where everyone charged with a crime is innocent till proven guilty, no matter how bad it looks.

      August 1, 2012 at 5:59 pm | Report abuse |
    • Hexx

      His "just desserts" wouldn't be death. Death would be too kind and an easy way out for a piece of trash such as this. After he dies, that's it......he's done. No having to deal with the deaths of all of these people, no having to live forever imprisoned, never to feel the touch of a woman, eat decent food, or go out for a good time with family and friends. He will be a peace in death while the families of the dead and injured are having to cope with the losses, pain, and suffering that comes with said losses. No ma'am, his "just desserts" would be to forever be housed in a penitentiary/psychiatric ward all the while having to deal with the guilt of what he did. He can try to pretend he's crazy all he wants, crazy doesn't commit premeditated murder. Crazy doesn't set up an elaborate booby trap in its apartment, crazy doesn't act crazy on purpose.

      August 1, 2012 at 8:14 pm | Report abuse |
    • compassionate conservative

      That's right Andy R. This is America, where we are fair and compassionate. Our legal system is not about revenge, it is above all, about justice. This man is sick. He is not responsible for his actions. He needs help. Perhaps with the proper help, he may be able to return to society and be a productive citizen. What would Jesus do?

      August 1, 2012 at 9:18 pm | Report abuse |
    • Obama Mama

      At compassionate C- Nope. Jesus would have sent him to hell. Do you really know the commandments?

      August 1, 2012 at 9:22 pm | Report abuse |
    • Jack

      Like the other guy said, we are better than him. We give all defendants a fair trail (in theory)

      August 2, 2012 at 2:14 am | Report abuse |
    • DrMeatwad Phd

      Wishes you people would feel the same for those they killed in 2001, they have yet to have their Justice. The 9 11 con mission is a farce just like the majority of those con mission members now say. They are only doing it because they know they would be conspirators after the fact when justice finally wakes up to those criminals that "pulled it" off while pointing their bony fingers at others.

      August 3, 2012 at 2:23 pm | Report abuse |
  4. Engrish Major

    Ok CNN why the censorship? What's the matter? You got your politically correct panties in a bunch?

    As I said before, "This guy needs to be strapped in a chair and have the life juiced out of him."

    Or save the tax payers a bunch of money and invest in a .45 caliber round to the head.
    Stop the injustice and make an example out of this guy.

    Guilty? Ok have fun Mr. Executioner!

    Mr. Executioner would drag him in the back alley and blow his head off.
    Oh and it would be filmed and posted on YouTube.

    August 1, 2012 at 3:32 pm | Report abuse |
    • banasy©

      I see that they deleted my reply, lol.
      Silly rabbits.

      August 1, 2012 at 7:24 pm | Report abuse |
  5. Steve

    When he is found guilty they should sentence him to death by ....whatever. On the day he's scheduled to be put to death they should bring him to the room, belt him down, wait 5 minutes, unbuckle him and bring him back to his cell. Tell him there was a problem and they'll do the deed in a few days. In a few days time, do the same thing.. bring him down, belt him down and wait five minutes.. then unbuckle him and take him back to his cell. Do this a dozen times over two months.

    August 1, 2012 at 3:54 pm | Report abuse |
    • Anon

      That's what the Batman did to the Joker in 'The Dark Knight' during the interogation.

      And that is exactly what the Joker wanted.

      I don't think the anyone should play themselves into the hands of the 'Joker'.

      August 1, 2012 at 7:11 pm | Report abuse |
    • Vom Brunhaus

      He Absolutely looks CRAZY!

      August 1, 2012 at 7:13 pm | Report abuse |
    • mccgeno

      good one. Or just give him half the gas, and then pull him out. Except they should do it every week, for like, 5 or 10 years. And they should water board him every night.

      August 1, 2012 at 9:23 pm | Report abuse |
    • Dandydude

      I've thought about such things also ... kill him, then bring him back to life so you can kill him again, etc... The truth is that no level of inhumanity to this guy will help the situation. When he is found guilty – a .22 to the head, toss his body in a kiln and erase him as quickly as possible so people can move on with their lives knowing that this piece of human trash is gone.

      August 1, 2012 at 9:31 pm | Report abuse |
    • Think Sane

      Haha! I love this idea!!

      August 9, 2012 at 3:59 pm | Report abuse |
  6. ASD

    they should raise money by raffling tickets to do a firing squad. Then give the money to the victims

    August 1, 2012 at 4:10 pm | Report abuse |

    Still awaiting for somone, preferably outside mainline media, to explain what Mr. Holmes field of expertise is and the name and subject of the federally funded research project he was apart of.
    If the man was sane when he presented his paper to his peers, and just what attachment the psychiatrist was involved with. the research or outside of it.
    Lots of techno legal bs and unlike sll other high profile cases why no media folow up, excep t some pat no depth at all of dubject.
    Won't expect any either.

    August 1, 2012 at 4:51 pm | Report abuse |
    • Walker

      The only websites that make any mention of the second gas mask are right-wing nutjob blogs with the credibility of just about anything that's ever come out of Michelle Bachman's mouth.

      August 1, 2012 at 7:50 pm | Report abuse |
    • kavita gunaji

      maybe he was in a hallucinogenic phase and thought he was supposed to do this. the mastermind behind his crime may be a negative publicist for the movie. see how the box office is expanding. pretty pathetic huh?

      August 1, 2012 at 9:21 pm | Report abuse |
  8. What about the second shooter?

    There was a second gas mask and a bloody knife found at the far side of the building. Obviously a second shooter was present if not the sole shooter and Holmes a patsy for the situation. This entire story has been covered up. Look for Washington post article concerning second gas mask found.

    August 1, 2012 at 5:05 pm | Report abuse |
    • TLC

      Was anyone stabbed?
      Back-up gas mask?
      Was there any shell casings, forensic evidence, ANYTHING to indicate there was a second shooter besides a gas mask?

      Obviously, the man accused would have spoken up by now if no other reason than to save his own behind.

      August 1, 2012 at 7:32 pm | Report abuse |
  9. 1amazed1

    While I feel he at the minimum should be sentenced to life without the possibility of parole I find it unreasonable to charge someone with double murder charges for a single case. While I understand what the state is trying to do here I would tend to think that it is is stretching its neck a little far.

    August 1, 2012 at 6:14 pm | Report abuse |
  10. Steve M

    They need to give James Holmes lethal injection!!!!! That should be 100% FULL SPEED AHEAD!!!

    August 1, 2012 at 7:22 pm | Report abuse |
  11. jose luis samaniego

    he bought the guns in a legal way .. so he's inocent

    August 1, 2012 at 8:14 pm | Report abuse |
  12. dazzle ©

    Bravo to Colorado for amassing as many charges as they can before prosecuting this terrorist beast. I hope Holmes keeps his public defender for this case or else where will the money come from for an kick butt attorney. I don't care what they diagnose him with to prove insanity or what kinds of meds he was on. When he is found guilty, show him no mercy just like he did to the victims.

    August 1, 2012 at 8:27 pm | Report abuse |
    • Purplemate

      That being said, I would hope a light shines on the glaring effects these meds have on a person. Really, they've been given out (since the 90's I believe) like candy.

      August 1, 2012 at 8:38 pm | Report abuse |
  13. Whome

    The NCAA needs to penalize the CU football program to be fair, same as Penn State only in this case people were killed because the proper authorities were not notified.

    August 1, 2012 at 9:14 pm | Report abuse |
  14. CNNidegaz

    Starting to look like a "we could've had it under control, but didn't" sort of issue.
    Stupid human issue, not gun issue.
    Now, Colorado will most likely ultimately face multiple wrongful death suits, if not criminal prosecution for knowledge of felony before the fact.
    Way to go, universities. It's not a new story.

    August 1, 2012 at 9:25 pm | Report abuse |
  15. Dandydude

    Can we light his head on fire in the courtroom?? I mean ... it is already orange.. so flames would not look much different.

    August 1, 2012 at 9:27 pm | Report abuse |
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