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. Freddo

    Academic arguments opposing capital punishment are so rarely made by those who have actually lost a loved one to murder. Yet, those members of our society may be the best qualified to help us understand and define what a just punishment should be for such crimes.

    August 2, 2012 at 7:26 am | Report abuse |
    • BonnieBlue

      I have lost a cousin and a friend to cold-blooded, premeditated murder. I supported the death penalty until the rogue that murdered my cousin was executed (five years after the fact). I do not support it further. My extended family has been dysfunctional since my cousin's senseless murder. Nothing can fix it. The murderer was let loose by the parole board for (gasp!) murder done prior to my cousin being killed. Murderers should be locked up for life, no parole. Killing them doesn't bring back the dead and it doesn't keep other mad killers from murdering other innocents. Keep these murdering fools in a SuperMax environment. That's my $.02.

      August 2, 2012 at 10:49 am | Report abuse |
  2. nokoolaidcowboy

    Keep in mind, Capital Punishment is NOT a deterrent to the crime committed. It IS a deterrent to the repeat offense. This is a defective human being, should he be allowed the opportunity for rehabilitation? And for what? A possible release in the future? Can society ever trust him again?
    He committed the crime and should forfeit the ultimate price. His life. NEXT!

    August 2, 2012 at 7:34 am | Report abuse |
  3. Fred

    Okjay, so let's study him for a year or two, learn what we can, then put the sucker into the ground! Society doesn't need this whacko living and - possibly - being released as sane in 20 or 30 years.

    August 2, 2012 at 8:33 am | Report abuse |
  4. Jack

    I think he does not just need to be jail, he also need to have some mental treatment ~ He could have do the same thing after he go out from jail ~ To prevent such a tragedy, it is better to cure him but of course, the expenses need him to pay back after he get out from jail by working ~ Perhaps now a day need to have a Kechara Protection Chakras to go cinema for movie ~

    August 2, 2012 at 8:44 am | Report abuse |
    • Danger Kitty

      I'm sensing a tinfoil hat somewhere in your vicinity – check the refrigerator, it should be there.

      August 2, 2012 at 9:01 am | Report abuse |
    • Tim

      Jack –

      Are you an idiot? This guy isn't getting out of jail. No one gets parol after killing 12 people and shooting another 50+. Sure, give the maniac some mental treatment, but he's not getting out...

      August 2, 2012 at 1:18 pm | Report abuse |
    • KillenTime

      You're sadly mistaking if you think he's ever going to get out Jack. maybe you need some mental help.

      August 2, 2012 at 4:48 pm | Report abuse |
    • Sam

      @Jack really? realize this is the U.S. some tapasia, get a 'vardhan' that no one can kill you in a theatre...go watch dark knight

      August 2, 2012 at 9:47 pm | Report abuse |
    • DrMeatwad Phd

      Are you seriously thinking he will ever see his freedom outside a state run facility? Well Hinkley has nearly retained his freedom for doing the Bush syndicates bidding, so yeah maybe this guy will get out some day.

      August 3, 2012 at 1:53 pm | Report abuse |
    • Kevin

      @Jack: WIth all due respect, sir, I do applaud the fact that you sound like a nice person with good intentions. That said, in my experience, many people can not be cured. I am not saying that it's impossible that people can be rehabilitated, but from my experience, most people are hopeless. You may have a different experience and I am in no way putting down your life experience, as that is not my intent. I live in NJ and I can guarentee you, people are not the nicest.

      August 5, 2012 at 1:22 pm | Report abuse |
  5. Danger Kitty

    "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."

    God, I wish I could move to Colorado.

    August 2, 2012 at 9:00 am | Report abuse |
  6. ronvan

    Is there really anyone out there that thinks this "thing" is innocent? If you do then maybe you need help! I do not care if he is crazy or not! DEATH PENALTY, and FAST!!! WE do not hesitate to put an animal out of its suffering, and in this case, for me, I have to apoligize to the animals! PLANNING, PREMEDITATION, CLEAR THINKING!! "IT" is only crazy in OUR MINDS!

    August 2, 2012 at 9:54 am | Report abuse |
    • faithjarrell

      I agree 110% It costs tax payers tons of money to feed and house prisoners; not to mention they get better health care in there than the average citizen out here. America's prisons are over crowded as it is. I'm all for rehabilitation when it's possible but no amount of rehabilitation in the world is gonna change the fact that this animal killed 12 people. If a dog so much as bites someone they get put down and they're only doing whats in their nature to do. I think it's absurd that someone who deliberately takes another human life gets food, housing, and health and mental care for 30 years or so then gets released back into the free world. It makes absolutely no sense.

      August 2, 2012 at 2:10 pm | Report abuse |
    • magnus

      sadly there are. Below is a list of people who think he is innocent and should not be held accountable:

      1. His parents
      2. Psychatrists
      3. Liberals
      4. CNN

      August 8, 2012 at 4:06 pm | Report abuse |
  7. wendie

    This was planned by him for days in advance, you can tell by the amo he starting collecting, that does not just take a day or two to do. He knew when and where he was going to do this, if that is not premedatation then what is. And if this kind of violence does not warrant the dealth penalty then what the hell does. The justice system really needs to update the laws. That many dead from 1 guy on a shooting spree.

    August 2, 2012 at 10:05 am | Report abuse |
    • clayton crawford

      Wendie: start with the word moron and go from there: yeah, you are correct, he will never get out of jail.
      I am a DarK Knight fan as well as oher comic book superheroes and what he has done is so derranged, he has certainly shocked the entertainment world. He also is so smart because he punctured holes in the legal system to obtain all of his weapons of mass-destruction, take my meaning in stride.

      I certainly send my condolenses as a Canadian to all those American families effected by this horrific incident.

      August 2, 2012 at 9:47 pm | Report abuse |
    • magnus

      insane people dont boogie-trap their apartment. sadly, liberal psychiatrists and the parents who spawned this monster onto earth are going to fight tooth and nail to make sure he enjoys his life.

      August 8, 2012 at 4:07 pm | Report abuse |
  8. adam

    It took awhile to exterminate that piece of trash McViegh as it unfortunately will with this pile of crap.
    Our system sucks in so many ways and this is one of them.
    Its happened before where guilty as sin have walked away scot free, can we say OJ.

    August 2, 2012 at 11:19 am | Report abuse |
  9. SoArizona

    I do NOT believe he is innocent. The evidence and witnesses are overwelming. BUT. . . We are not allowed to try a person twice for the exact same crime. It is double jeopardy. So where's the difference? Is Colorado setting him up for a Supreme Court end run?

    August 2, 2012 at 12:41 pm | Report abuse |
    • James

      They aren't charging him for the same crime twice ... they are charging him with multiple crimes.

      August 2, 2012 at 3:25 pm | Report abuse |
    • DrMeatwad Phd

      You do not get the prosecutors reasoning. Remember Casey Anthony? They only tried her for one type of crime. If they had iincluded lessor types of charges, like aiding and abetting her fathers molestation and disposal of the body, she would have been in a prison today. The way they are doing this, he will be found guilty of one or the other. This guys defense has some very powerful witnesses out there to tell the Jury that someone else could have been the shooter, or both of them did it. 5'8" and 6'3" do not make the same suspect description, there were at least two of them.

      August 3, 2012 at 2:09 pm | Report abuse |
    • SoCalifornia

      Actually, we can and have done that. Perfect example was Larry Gene Heath. He hired two guys to kill his pregnant wife so he could marry his girlfriend. The two guys kidnapped her from their home in Alabama, took her across the border into Georgia and killed her there. The state of Georgia tried all three of them, convicted them of the murder and sentenced them all to Life. THEN the State of Alabama decided to try Heath (but not the actual killers) in THAT state and sentenced him to death. The Supreme Court rejected Heath's claims of double jeopardy. The state of Alabama executed him in 1992.

      August 3, 2012 at 3:00 pm | Report abuse |
    • magnus

      two different charges per person.

      August 8, 2012 at 4:08 pm | Report abuse |
  10. Jake

    Um....Why is he still on the news and not dead yet? Sure lets go ahead and give him all the attention he ever wanted.

    August 2, 2012 at 1:56 pm | Report abuse |
    • DrMeatwad Phd

      Jake, wouldn't you think it is better to find his accomplices to this crime? Killing him is his pals best defense. Were you his pal that night Jake?

      August 3, 2012 at 2:11 pm | Report abuse |
  11. Carlos

    Just kill him. And also, please! If I ever go that "crazy" and do something similar to what he did, just kill me. Sick or not, we don't need anyone killing and injuring so many innocent people just like that...

    August 3, 2012 at 2:28 pm | Report abuse |
  12. donna

    The psychiatrist DID NOT report Holmes. She merely got her friends to say that they talked to her over the phone about him. This is soft-hear say and not hard evidence.

    It is nothing but a cover-up attempt to protect the psychiatrist's job and the reputation of the school. Just like Paterno.

    August 4, 2012 at 11:04 am | Report abuse |
  13. Ron

    How many years and how many millions will this trial cost the people? They caught him in the act!!! Take him to court and let the judge pronounce him to death.

    August 5, 2012 at 3:32 am | Report abuse |
  14. Dee

    That's not really an unusual way to charge

    August 5, 2012 at 1:23 pm | Report abuse |
  15. Allah

    these prosecutors are COMPLETE IDIOTS. NO FAITH – NO CONFIDENCE in these morons that can't try this case properly w/o spending tax $$ like its not theirs...

    August 5, 2012 at 1:28 pm | Report abuse |
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