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. audrey

    the victims are for more worth conversation. unfortunately our society and media tends to highlight the extraordinary. im not trying to be a naysayer; it is what it is.

    August 2, 2012 at 12:51 am | Report abuse |
  2. Gino P.

    This guy should be charged with 50,000 volts.

    August 2, 2012 at 1:13 am | Report abuse |
  3. Truegirl

    I find it so disturbing – the bloodthirstiness that is stirred up in our society – in reaction to this heinous and senseless tragedy. I respect the anger, I feel it too. I respect the fact that we are a society that seeks justice. But if justice is what we seek then – in my view – our best chance is to study this man, find out what makes him tick, and use what we learn to help prevent a similar tragedy from happening ever again. He is a very disturbed individual regardless of whether his act was premeditated. Most people don't sit around plotting for months to murder mass amounts of people in a movie theatre just for the hell of it. He's mentally off. For those who believe the death penalty will save money, please do the research. In fact, the process costs us more money than to house a criminal for life. Imagine what we might have learned if the columbine killers hadn't taken their own lives. What Holmes did can't be reversed. He will be locked up for the rest of his life, one way or another. It is our responsibility to those future would-be victims of senseless crimes to learn what we can and apply it. If we get rid of Holmes, another Holmes will pop up eventually.

    August 2, 2012 at 1:37 am | Report abuse |
    • Mary L.

      I agree with this perspective. I still ponder how anyone who purposely kills another human can be considered a sane individual. Even the military or police, how can killing someone ever be justified. Wish the value of life was evident to everyone.

      August 2, 2012 at 2:42 am | Report abuse |
    • TC

      If you actually include the amount of money to pay the jail employees, feed him, provide renovations to the facility it kind of evens out on cost and thats only because the amount of money to pay for all the appeals allotted.

      Capital punishment doesn't work cause it takes way to long. There are three principles in capital punishment theory, of which our system lacks in all three: swiftness, certainy and severity. It takes between 10 and 15 years in a GOOD case to get through appeals. It is never certain if they would stay in jail or get the dealth penalty and as for severity, if the two options are have few worries be given a bed and food or death. Ones not too severe.

      Mary L. put yourself in the police or militarys shoes and you'll find out what kind of person you are when your in a situation where it is kill or be killed.

      August 2, 2012 at 3:42 am | Report abuse |
    • sandy

      Totally agree with Truegirl. The most important thing to have a safer future is to prevent such a tragedy. And, this is possible only by knowing what drives people like Holmes to commit such crimes.

      August 2, 2012 at 8:30 am | Report abuse |
  4. Lagos

    Yes, let's show ourselves how just we are by murdering a murderer. After all, killing someone with premeditation's okay as long as you can justify it, right?

    August 2, 2012 at 1:42 am | Report abuse |
  5. Face

    He is going to be found Crazy and end up in a nut ward for the rest of his life. That's what will happen, anybody who thinks any different is a special kind of fool.

    August 2, 2012 at 2:18 am | Report abuse |
  6. Steve

    The charges do not make sense. If they are basing this on premeditation as counting for one, and actual kill as two, then their judgement is flawed. He probably knew this was going to be a popular movie and would attract a large audience, but knowing who would be there and roughly how many hardly qualifies for premeditation. He should be charged for the lives he took, that much is true, but tacking on extra charges by extra-judicial hand-waving seems superfluous and ethically compromising.

    August 2, 2012 at 2:52 am | Report abuse |
    • TC

      Uunder 1st Degree Murder there are a series of stipulations you have to meet. The doubling of charges is what is typically done to ensure it sticks. There is one count of killing by extreme malice and one for after deliberation or premeditated. If they cant prove premeditation and try to get him off for being crazy, then he will still get the extreme malice. Its also a is that way for everyone wounded. 12 Dead, 58 injured times 2 is 140. Other two charges are a violent crime (an enhancer for the penalties of all others) and possession of an explosive device.

      August 2, 2012 at 3:46 am | Report abuse |
  7. MajMajestik

    What ever happened to dbl jeopardy? Really is that necessary? Is the DA worried if found guilty on 12 1st degree murder and 100+ attempted murder charges plus two weapon charges..this guy is ever gonna breath free air again??? I mean come on, really?

    August 2, 2012 at 3:30 am | Report abuse |
    • TC

      Double jeopardy is being tried of the same crime after already deemed guilty or aquitted. The way the law is written he can get a charge of First Degree murder for every series of stipulations his crimes meets. In this case potentially premeditated murder or after deliberation in CO and killing with extreme malice.

      August 2, 2012 at 3:51 am | Report abuse |
    • magnus

      they will need every last one of those 140 counts to ensure that this guy gets killed like he should. the liberal psychiatrists, his parents, and news station like CNN who loves to portray him as 'crazy' are going to use every single last 'ammunition' to get him off on insanity so he can enjoy his life. The prosecution is doing the right thing to counter-act the goals of his parents to get him off on insanity.

      August 8, 2012 at 3:55 pm | Report abuse |
  8. Terri

    There is no question as to his guilt. He was caught red handed and red haired. I have a problem with the death penalty being imposed if there's any doubt of a persons innocence, but this guy is a long way from innocent. It would be better for him and the prison population if the death penalty was imposed quickly. He is a dangerous person. He could cause harm to other prisoners. It would also be more humane for him to be executed quickly because if he's ever put in with the general prison population, he could very easily suffer a much more violent death.

    August 2, 2012 at 3:46 am | Report abuse |
  9. Tutuvabene

    When the state resorts to charge stacking, as it is here, the case is no longer about justice but revenge. The prosecution is saying we're going to nail this sucker come hell or high water.

    August 2, 2012 at 4:03 am | Report abuse |
    • Fred

      And what, exactly, is wrong with that? This slimeball doesn't deserve to exist by the same rules as civilized people.

      August 2, 2012 at 8:31 am | Report abuse |
  10. shorty

    And everyone in that theater and apartment were threated or harmed by him that is one count for all that were in his path just some were liclu eough not to be physically injured

    August 2, 2012 at 5:00 am | Report abuse |
  11. RIck

    Only in sensationalist america could you charge someone murder x 2 on the same person. usa.. home sweet home.. hehe

    August 2, 2012 at 5:09 am | Report abuse |
  12. Gean

    We need to get the guns out of the hands of crazy people and rogue cops. Too many people are losing their lives due to the availability of guns. This is not on CNN or in other other news, but my friends's 21 year old son who just graduated from college with honors was recently killed by a stray bullet.

    August 2, 2012 at 5:11 am | Report abuse |
  13. dont be a sucker

    Could you imagine getting (2) $300 speeding tickets for 1 offense ?

    You would be at the police station with torches and pitchforks....As well as you should

    This situation is just as tyranical

    August 2, 2012 at 5:49 am | Report abuse |
  14. NotSureThisIsSmart

    I just dont think this is smart. While this is a heinous crime and if proven guilty he should serve life inprisonment i dont think the reckless indifference charge is smart here. I am assuming prosecutors only are trying to make sure enough charges stick, but this is highly unusual that murder 1 and reckless indifference are charged IN THE SAME TRIAL. Its usually used as a additional charge that in a subsequent trial the defenedant can be (loop hole like) be charged for the esentially the same crime. I personally feel reckless indifference is stupid and really a result of families who really got their "feelings hurt" when they someone who is responsible for a loved one's death isnt given a long enough sentence. The point is that if both charges are seen as guilty then thats a great basis for Mr. Holmes to seek appeal and even recieve a reduced sentence if he can prove it wasnt due process and that he was a victim of double jeopardy. I just think that its actually more of a risky move than a secure one. I dont think James Holmes will get out of this one, but why give him the opprotunity? I still think he's gunna plead insanity but i cant wait to see how this trial plays out.

    August 2, 2012 at 6:55 am | Report abuse |
  15. that is just overkill

    I don't support what Holmes did but being charged twice for each victim is abuse of the legal system! He is already going away for a life probably so why do they need slap on more charges? If those charges stick, they could mean harsher sentences for any crime committed by anyone.

    August 2, 2012 at 7:01 am | Report abuse |
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