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. A. Limey

    Although you can never prevent sickos doing bad things I can't help but wonder how different the US would be if guns were made illegal. Shooting sprees are common in the US and vey rare in Europe. Also, if capital punishment is a deterrent why are there far more homicides in the states with the death penalty? I'll tell you why it's because the state sanctioned murders is akin to saying that 'killing is just'. Killing is never just in any form apart from self defence. If the US didn't have guns there would be fewer deaths because of them. Wake up and grow up America.

    August 5, 2012 at 3:18 pm | Report abuse |
    • CCLlicensee

      Tell that to the Syrian's. They are fighting for their freedom just like we did. OH....that's right, it was the limey's we were fighting against. never mind...carry on!

      August 12, 2012 at 7:23 pm | Report abuse |
  2. Wowcantbelieve

    This guy is still alive? He killed 12, no one disputes that claim – most likely not even him. That alone should be enough for an expidited trial/sentencing. But instead it'll be dragged out, the media will cover every second of it (gotta get that ad revenue!!) – ultimately giving this guy what he wants and paving the way for future cases like this all the while the American public, the very same people he shot at even, will be footing the bill. Whatever changes that ultimately come in terms of protecting society from individuals like this will only serve as the false sense of security we all require to continue our daily lives. Rinse, repeat. God Bless America!

    Oh no wait, I'm sorry guys, as a liberal I'm required to say guns are the problem, not our eternalizing these psychos just looking for attention all for the sake of profit and our own curiosities. Though I am curious if cases like this would happen if cops instantly shot these people and media coverage was focused on the tragedy the victims endured and mentioned nothing of the "martyrs" and their maniefestos. CNN you can make a stance. You have the voice to influence the future well-being of our society. But will you?

    August 5, 2012 at 5:44 pm | Report abuse |
  3. Captian Sinbad

    Justice system will not use death penalty, just life in prison without parole. Isolate him with heavy manual labor for the first years equivalent to the number of victims dead and alive. Then He may decide whether to send him to Heaven or to hell.

    August 5, 2012 at 7:52 pm | Report abuse |
    • sam

      Sadly there is no "hard manual labor" in Colorado. The liberals have gotten such a foot hold of the system that it is hardly punishment. He should be put to death and his family charged with the procedure.

      August 6, 2012 at 11:18 pm | Report abuse |
    • Rock

      They are doing whatever they can to make sure this guy never sees the light of day again...which is unlikely but still happens becuase of overcrowding of prisons.

      August 8, 2012 at 10:42 pm | Report abuse |
  4. TGM

    "charging as many crimes as possible " is great news for the lawyers who get paid by public funds.

    August 6, 2012 at 8:22 am | Report abuse |
  5. Leftist conservative

    this is what happens when romney is not elected

    August 6, 2012 at 10:10 am | Report abuse |
    • Kqaafe

      Wow. That's a ridiculous and childish statement and I am neither left or right. Really REALLY childish my friend. God bless the families of the victims. ANY administration would not be happy at all with what has happened and would hope that James Holmes is prosecuted as harsh as humanly possible without negating our due process. ANY ADMINISTRATION. Grow up.

      August 8, 2012 at 12:09 pm | Report abuse |
    • CCLlicensee

      I *think* he was being sarcastic, bud.

      August 12, 2012 at 7:26 pm | Report abuse |
  6. Tupac

    He is guilty!

    August 6, 2012 at 10:11 am | Report abuse |
  7. William Roberts

    This Dork is Stupid, not Insane. He's Just trying to beat the legal system. Stupid, Stupid, Stupid ! ! ! ! ! ! ! ! !

    August 6, 2012 at 12:56 pm | Report abuse |
    • magnus

      and sadly the liberal psychiatrists, his parents, and CNN are all working hard to make sure that he is portrayed in a sad way. boo hoo , he is sad. his brain is not working hoo. his parents are like "our little boy didnt kill those people it was brain disease" boo hoo. i think if he gets off on insanity then his parents should pay with THEIR lives. Someone has to pay for this. Enough already. There is no accountability left in this country.

      August 8, 2012 at 3:50 pm | Report abuse |
  8. gac59

    I keep hearing how his shrink "reported" he has a problem. The article says she "mentioned" it to her collegues. Is he insane – no! Does he have mental issues – yes! Anyone who commits these types if crimes has mental issues but does it mean they don't know what they are doing? No. They can plan the crime, obtain weapons for the crime, choose where the crime will take place – yes! Then they are not insane, just mental. An insane person doesn't plan doesn't know right from wrong, and commits their crime based on opportunity, not plan it and execute it. They are building a not guilty by reason of insanity defense for this moron. I hate defense lawyers.

    August 7, 2012 at 3:31 am | Report abuse |
    • Mick

      He's not insane...for the reasons you cited. I'd be very surprised if he gets off on an insanity defense – not many people have.

      August 8, 2012 at 11:50 am | Report abuse |
    • Lou

      People who kill people are insane. What else would you call them? Sane?

      August 8, 2012 at 12:22 pm | Report abuse |
    • Lou

      So if someone drives their car down the road and intentionally kills someone, you wouldn't call them insane because they can drive? I don't understand how this makes sense.

      August 8, 2012 at 12:32 pm | Report abuse |
    • Rev

      The legal definition of "sanity" is not what most think. It's a strictly limited concept, having to do with the ability of the person to know right from wrong, to comprehend his choices, and to control his own actions accordingly. A manifestly "crazy" person may or may not be legally "insane". That's one reason it's not often successful as a defense, though often defense teams run it up as a trial balloon.

      August 8, 2012 at 1:12 pm | Report abuse |
  9. Beff "Skunk" Jaxter

    Unusual charges for an unusual man.

    August 7, 2012 at 9:16 am | Report abuse |
  10. RPE

    What went wrong. Was he loved and cared for proper throughout childhood........ If in fact he has a mental health disease, was it known by family members. Was he a problem child, uncontrolable by which time in later years his family simply gave up. Surely family would explicitly know one other members concerning behaviours and act.

    The school pych had concern, unfortunately follow up's or some form of monitoring was not given priority. The outcome is so sad and servers as a clear wake up call for.
    God bless all concerned.

    August 7, 2012 at 9:25 am | Report abuse |
  11. JB

    Sam, why charge his family for the execution?
    If one of your children did this and you had nothing to do with it, you thought you raised them right etc, would you like to now owe millions of dollars to kill him for something you would never had wanted him to do?
    He did this by himself, and you cant really charge the family for something they had no control or support for..

    August 8, 2012 at 9:13 am | Report abuse |
  12. Lou

    Any one who looks at this world full in the face will soon see that it is insane, that the physical world does not and cannot conform to our inner reality. Like a fish out of water, in this world, too much exposure and our soul dies. It's like Nitezche said, "if you look long into an abyss, the abyss looks into you."

    August 8, 2012 at 12:49 pm | Report abuse |
  13. Nessa

    Am I the only one that thinks this person (James Holmes or whoever is on trial) looks different from the other pictures? There are like 5 pictures of James Holmes all over the internet and news and he looks so much different from this person that is on trial. I just think people should open up their eyes and see that there is something fishy going on with this case.. And no I have not been reading conspiracy theories I just thought of this from the moment I saw him in court. Just does not look like the James Holmes of the other photos they have been showing.

    August 8, 2012 at 2:45 pm | Report abuse |
    • magnus

      that is because he is still trying to figure out which character/emotions to portray that will get him off on insanity so he can enjoy his life.

      August 8, 2012 at 3:47 pm | Report abuse |
  14. magnus

    at first i used to think that life in jail was a better punishment that the death penalty. But i have since changed my mind following the picture of the monster Loughner in that mugshot (smug, in your face mocking all of us, coward) and this bozo Holmes looking all confused and sad. Disgusting. They dont deserve to breath. Loughner got off easy and so will this bozo.

    August 8, 2012 at 3:45 pm | Report abuse |
  15. Jetson

    The man is not insane, for Pete's sake, anyone who can plan in detail the execution of others and the destruction of his apartment to remove evidence is not insane. The man is clearly not all together but he does know the difference between right and wrong. He should be executed, I am tired of our judicial system coddling people who think they can bully their way though society.

    August 8, 2012 at 6:25 pm | Report abuse |
    • Megan

      I agree completely. Having known people with mental illness and I can confidently say they would not have had the precision of thought to plan this kind of attack. They are all over the place and it is almost immediately obvious they are mentally ill.

      August 9, 2012 at 2:15 am | Report abuse |
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