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. bman man

    Well CU, ready for your Penn state beatdown? You knew but didn't tell the cops now anbunch hurt or dead....even worse than sandusky. Lets see what the NCAA does to your programs! Better bealot. The precedence has been set!

    August 1, 2012 at 9:27 pm | Report abuse |
  2. Jo Gordon

    I think you guys have missed a point. This guy doesn't care what happens to him. He can't comprehend what he has done. Do you really think he's on our world? He wouldn't know if he was being tortured or not. Your wasting your time if you think you know what he's feeling or thinking.

    August 1, 2012 at 9:36 pm | Report abuse |
    • alex


      August 1, 2012 at 9:45 pm | Report abuse |
    • Mauser

      I fully agree-This weirdo is waaaay out there!

      August 1, 2012 at 9:47 pm | Report abuse |
    • Fred Rogers

      I disagree. He knows exactly what he has done. He is just playing the insanity defense. Watching his facial expressions in court it was clear he was just acting. He visited a psychiatrist to plant the idea that he is insane. Why would someone who is insane visit a psychiatrist on their own? No one made him. This guy is a calculating psychopath.

      August 1, 2012 at 10:00 pm | Report abuse |
  3. Penn State Proud!

    Let's put him in with Sandusky, since these two are going to take down their respective schools! They can be husband and clown.

    August 1, 2012 at 9:44 pm | Report abuse |
    • mmjk

      🙁 🙁 🙁 Sooooo Sad...Hopefully these people...all of them affected by this senseless act of violence will be healed soon

      August 1, 2012 at 11:56 pm | Report abuse |
  4. alex

    Legal mumbo jumbo, let him fry

    August 1, 2012 at 9:44 pm | Report abuse |
  5. sheethinks

    he is a sick person and all the victims and familes that were effected deserve justice but I think prosecuters are biteing off more than they can cheww

    August 1, 2012 at 9:50 pm | Report abuse |
    • Mike

      This is not about taking the safe route, this is about these prosecution attorneys and associated legal laborers billing the state government for as much as possible. Lots of people make big money off of these criminals.

      August 2, 2012 at 12:40 am | Report abuse |
  6. Tammy

    I know what this person did was very unthinkable, we just have to leave it in the hands of the law.but most of all he will be judged before our GOD and that verdict is really the only one that will count in the end.

    August 1, 2012 at 10:19 pm | Report abuse |
    • serialkillerbob

      Really? "Our GOD" Really?

      August 1, 2012 at 10:34 pm | Report abuse |
    • Malavaina

      You are full of crap!! Let the god outside from this. This is a criminal that only deserves to be put away.

      August 1, 2012 at 10:51 pm | Report abuse |
    • zulfiqar tareen

      you mean we should let god decide about holmes. hell, noooooooooooooo.

      i would rather give him as a prsesnt to sandusky.
      sandusky and him dserve each other.
      we will see if he can cut the throat of sandusky or sandusky makes him his wife.

      August 1, 2012 at 10:52 pm | Report abuse |
    • Jack

      Unless of course he asks for forgiveness right? Then your god can't touch him.

      August 1, 2012 at 11:01 pm | Report abuse |
    • Job

      and where was "GOD" when the killing took place?

      August 1, 2012 at 11:35 pm | Report abuse |
    • Pelegrim

      No such thing.

      August 1, 2012 at 11:49 pm | Report abuse |
    • Brian

      "Our God"????? Don't go proscribing your hypocritical beliefs on me. He is your "God" and yours alone.

      August 2, 2012 at 12:35 am | Report abuse |
  7. Dumdown

    Was there a toxicology test taken at the time of the crime...thats the real question....who cares what he thinks now..what was he thinking...what was he on when this happened??? There is no shortage of drugs in the area that he lived. That said, being a Denver/Aurora native....Nathan Dunlap is still alive so what does that tell you about the death penalty in Colorado....

    August 1, 2012 at 10:19 pm | Report abuse |
  8. Doug

    My question is how come he wasn't charged for attempted murder on every single person in that theatre. Just because some were shot, the others were at risk too? They really should have included the unharmed.

    August 1, 2012 at 10:22 pm | Report abuse |
    • TexasGirl

      Totally agree with you ! Attemped murder on everyone in the theater and would have killed them all if the gun had not jammed!

      August 12, 2012 at 12:06 am | Report abuse |
  9. ManTex

    Perhaps the state of Colorado should call in the A team and stop messing around with the charges. The same inept proprietorial overcharging and failure to focus is the very reason why Casey Anthony was acquitted.

    If this guy is found not guilty by reason of insanity or because the State could not prove the case as it charged it the talking heads at HLN will have a field day but the people of Colorado will be ill served.

    Nancy dis-Grace could not successfully practice law in the real world. Prosecutors should stop listening to her irrational B .. s now.

    August 1, 2012 at 10:25 pm | Report abuse |
    • Malavaina

      If he is found not guilty by reason of insanity, he still good for nothing, spending money in someone like him is wasting it, he doesn't deserve to be kept alive.

      August 1, 2012 at 10:56 pm | Report abuse |
  10. David


    Seeing his picture is NOTonly disturbing, it advances his celebrity status. There he sits with his orange hair and bug eyes – the digital image is right next to a story about some great Olympians.

    August 1, 2012 at 10:28 pm | Report abuse |
    • Pelegrim

      I have to agree with you. There's no reason to plaster his stain of a face all over the internet and television. But you know what? The media doesn't care about that. Clearly.

      August 1, 2012 at 11:54 pm | Report abuse |
  11. virginia

    I think all those asking for more blood are blood thirsty just like holmes is...this time they want to get the blood of holmes when holmes whante their blood I see them both as very sick individuals...and what they have in common is they all are blood thirsty..

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

    are u kidding me? Hes not responsible for his actions? Wow ! An insaine person acts out instantly and on instinct. This sane man planned this for months! Insaine does things as thought of ! How u sit here and say there no evidence but yet some ppl saw him! They found evidence in his hands ! He wrote down the attack detail to detail and sent it to his psyc . what more evidence is there needed? Point is he is responsible 100 percent

    August 1, 2012 at 11:20 pm | Report abuse |
  13. Eric

    Here we have a person with serious brain disease and you people want to kill the guy? You all are more sick than the acts the guy committed. Yes the acts are unspeakably bad, but you can't ignore that his brain is diseased and very ill, his reality is not ours..... you people need to stop thinking with emotion and put yourself in his shoes, with a brain so diseased that this made sense to him and was "right". Most of us can't even begin to know what that is like. He belongs in a mental hospital, NOTHING more. Stop casting stones you evil ones, the man is very sick.... being sick doesn't deserve the death penalty or even prision. End of discussion.

    August 1, 2012 at 11:40 pm | Report abuse |
  14. Al

    Does anyone need anymore proof of insanity than the acts themselves? He has done a better job on his own than any defense attorney could ever do. That said, no one wants this loser to ever be able to repeat, insane or not. It is not just to kill a sick man. It is not just to let him do it again, just because a shrink says he is better now. I can get a 'doctor' to prescribe medical ganja just as easily as Joker can get a shrink to say he's better after five years. Kill him? Too expensive. Life without parole, that's the cheapest. The hard part is to NEVER let him out. And I'm a liberal.

    August 2, 2012 at 12:27 am | Report abuse |
  15. Gerry Hintlian

    Manson is alive because our former and now unfortunately current governor didn't like the death penalty so he appointed Rose Bird and two other worthless judges to the Supreme Court and they let Manson off. Our tax dollars have been keeping him alive for over thirty years! Lovely. Those three judges were defeated for re-confirmation the next election that they had to be voted on. Good riddance to bad trash.

    August 2, 2012 at 12:49 am | Report abuse |
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