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. Joe ryan

    I am in partial don't really care about the case but the guy who said its liberals who wont give him the death penalty is wrong. And I am neither I am liberal on somethings and Conservative on other things. But the Conservative are the real religious guys who don't want people die. The liberal could care either way . Just saying get the facts.

    August 9, 2012 at 2:52 am | Report abuse |
  2. guido jenkins

    drag him kicking & screaming out into the street and riddle him with as many bullets as he fired in the theater....then leave his carcass to lay in the street as a warning that this will NOT be tolerated...anything less is a waste of time & taxpayer dollars...jmo

    August 9, 2012 at 4:30 am | Report abuse |
  3. Barry G.

    Has the NRA had anything to say about this terrible tragedy or the one in Minnisota?

    Has the arms industtry had anything to say about this?

    Have our politicians had anything to say about this?

    How much lobbying money, perks and privileges do our politicians receive each year from those who profit from manufacturing and seling arms?

    August 9, 2012 at 12:37 pm | Report abuse |
    • chris

      Why would NRA have to say anything? They didn't commit the crime and the guns and ammo were purchased legally...

      Why would the "arms industry" have anything to say? They manufacture the arms in a legal way.

      Of course politicians have had lots to say.... They of course have made their "sincere" condolances and i'm sure they are all sitting around a table trying to figure out how to even further restrict our rights to bear arms because people like you think that everyone should suffer because of the actions of a few.

      Politicians recieve money, perks and priviledges from the oil, tobacco and ahlcohol industry also so whats your point?

      Human nature will never change no matter what laws are put in place. What we have here is a person who knowingly and intentionally plotted a crime. He's not crazy or mentally unstable. He knew exactly what he was doing and thats why he was able to do what he did undetected. People like this will accomplish their task legally or illegaly. So retricting our rights or implimenting more laws will do nothing to stop it from happening.

      August 9, 2012 at 1:10 pm | Report abuse |
    • Steve

      Guns were simply the tools of the crime, not the cause. Had Holmes not had assault weapons perhaps he'd have simply rigged the whole theater to blow killing everyone inside, he obviously had the intellect to do so.

      August 9, 2012 at 2:17 pm | Report abuse |
    • Think Sane

      I think you're missing the point that guns didn't shoot themselves. There was a PERSON responsible, not a 'thing'. The real questions should be around mental health and instability and how do we attempt to identify these PEOPLE before they pick up a gun, make a pipe bomb, run down pedestrians with a car, or start stabbing people.

      August 9, 2012 at 3:52 pm | Report abuse |
    • rich

      I am a Colorado prosecutor and there is absolutely nothing "unusual" about the charging in this case, and specifically, the dual charges of "after deliberation" and "extreme indifference" murder. Any experienced Colorado prosecutor in this situation would find it unusual if those dual murder charges were not filed, particularly at the outset of the case.

      August 9, 2012 at 4:02 pm | Report abuse |
    • Joey

      When will people realize that if mentally unstable morons want to harm other humans, they will do it no matter what the gun laws are. Drunk driving laws don't stop morons from driving drunk, ect. In Texas, where just about anybody can carry a gun has way lower gun murders than states with strict gun laws. If given the choice of having a policeman respond to a person attacking me or pulling out my gun and stopping the attack....I'll take the gun every time.

      August 10, 2012 at 5:35 pm | Report abuse |
    • Charley

      Politicians are killing people every day in places like Iraq, Afghanistan and Pakistan but you wouldn't really care since that's not some place you frequent. Get a clue and use your brain it will make you seem less derpy.

      August 11, 2012 at 12:46 am | Report abuse |
    • Jeremy

      campaign finance seems just as corrupt as Wall Street, or any major company. If things are reasonable and ethical, then explain Mitt Romney existence.

      August 11, 2012 at 7:04 pm | Report abuse |
    • Michelle

      Barry did home builders reply when that man blew his house up with his two boys in it? What about knife manufacturers when someone kills someone with a knife? What about cars? Poison? Ropes.

      All those things killed people right?

      August 12, 2012 at 10:55 am | Report abuse |
    • jeff

      what happened in minnesota?

      August 12, 2012 at 2:43 pm | Report abuse |
  4. Rebbeca

    Back to square one people kill NOT guns. If the gun laws become more srtict the normal people will be unable to aquire guns but the crazies will always find a way. Guns, explosives, fires if a carzy person wants to do damage they will find a way to get the job done. Lets face it the politicins care about one thing...themselves and money and that will never change no matter how much lobbying is done. Get your self a gun permit and wait because one day you will need to protect yourself and family.

    August 9, 2012 at 2:40 pm | Report abuse |
    • Adam

      WHo says make Gun laws strict for normal people, if gun laws were more strict fewer nut jobs would possiblly get access to them. Tell me what "NORMAL" person really needs an AK47? We make people jump through hoops to drive vehicles yet they can order a gun online without any training, insurance or licensing!

      August 11, 2012 at 6:36 am | Report abuse |
    • Tim

      Adam is incorrect in his response to this post. Under FEDERAL law you are required to have a FEDERAL FIREARMS LICENSE (FFL) to receive shipment of a firearm. Period. End of Story. So sorry Pal, you can't order an AK-47 through the mail. If you order it online, you have to go IN PERSON to a gun dealer who posesses an FFL (administered by ATF) to go through a background check (administered by the Colorodo Bureau of Investigation in Colorado). So while its true that you don't need a license in Colorado to purchase a firearm, you do need to pass the background check administered by State Law Enforcement to confirm you meet the statute for possession of a firearm. This includes provisions for criminal history, mental history and other factors. Clearly, Adam (like many people and politicians) hasn't spent the ten minutes it would take to google Colorado gun laws so they would actually know what restrictions are already in place.

      August 11, 2012 at 12:18 pm | Report abuse |
  5. FreedomLover

    This man is an obvious patsy, just like the Wisconsin Sikh alleged shooter. Both of these are false flag operations. Why is it that every "nutjob" just happens to have ties to psych research/intel programs? Why is it that the damn auto mechanic doesn't go berserk, but it's the PhD student in neurobehavioral sciences, or the psychiatrist, or officer in a psychological operation mind control unit? Your country is run by ruthless psychopaths who will stop at nothing until their agenda is accomplished.

    August 9, 2012 at 2:48 pm | Report abuse |
    • Joyce

      I agree 100%; but how did you come to this conclusion

      August 10, 2012 at 2:38 pm | Report abuse |
  6. AK

    OK so the stuff was bought legally? Then it shouldn't be legal...

    August 10, 2012 at 1:02 pm | Report abuse |
    • Charley

      Cars kill more people than guns. FACT. Should these also be illegal? Get a clue simplesauce!

      August 11, 2012 at 12:49 am | Report abuse |
    • KC

      Cars crash, planes fall out of the sky, knives jab people. Lets ban them all. Or better yet lets let the government have cars planes and knives, so they can stab people, crash planes into buildings or cars into people.

      August 13, 2012 at 12:58 am | Report abuse |
  7. Joyce

    Why is no one noticing that "the joker" looks & acts like he has been drugged or programmed in some manner. Why aren't our hot shot reporters asking the right questions like when did he start seeing dr fenton? Does he have a history of mental disease or did this come on suddenly. Is anyone investigating the possibility or fact that there are drugs that can alter the will power of the human mind. Perhaps someone programmed him to do what he did. It seems that all of these young men that burst into some school or in this case a theater and start shooting are in some sort of trance. Remember the professor blow away her colleagues at a faculty meeting. The first statement she made upon being arrested was "it didn't happen. It didn't happen." There is more to this than what we are being told.

    August 10, 2012 at 2:07 pm | Report abuse |
    • CCLlicensee

      I agree..ever since the 1990's, every time *any* kind of gun control is coming up in DC, somebody loses it and goes on a rampage. But again, it could just be the bath salts.....

      August 12, 2012 at 6:20 pm | Report abuse |
  8. Richard Alexander

    Why do the prosecutors even need the intentional murder charge, if the extreme indifference charge is so universal and carries the same penalty (how many times can someone be executed)?

    August 10, 2012 at 7:12 pm | Report abuse |
  9. Barack Romney

    Vote for me!! 2012

    August 10, 2012 at 9:46 pm | Report abuse |
  10. VOTE OBAMA OUT

    Another reason this was a false flag to take away Guns hear in America Good try again Obama and , Holder... I guess if the " fast an furious gun running got caught yall would stoop soooo low to kill American citizens ? IM VOTEING OBAMA AN HOLDER OUT OF OFFICE !

    August 11, 2012 at 12:51 am | Report abuse |
  11. Adam

    If gun laws were more strict fewer nut jobs would possiblly get access to them. Tell me what "NORMAL" person really needs an AK47? We make people jump through hoops to drive vehicles yet they can order a gun online without any training, insurance or licensing!

    August 11, 2012 at 6:37 am | Report abuse |
    • Julia

      I am a NORMAL person and I would own a AK47. Yes you have to go through hoops to get a license to drive a car or even practice medicine, but cars still kill and so do doctors. You don't have to have a license to bring a child into the world, but the "nutjobs" have children all the time and no one says anything then. So really we should go back to the parents of these so called"nutjobs" and arrest them for raising this child to adult to not understand right from wrong. I believe that making gun laws strict is not going to change the chance for these people to still get guns. It doesn't matter if they get them legally or not, if they get caught or die in the act of violence does it matter how they got the guns.

      August 11, 2012 at 9:30 am | Report abuse |
  12. Chris

    Charlie- You said cars kill more people than guns? That stands to reason. Cars are in use by millions of people 24/7/365. Comparing cars to guns is like comparing house fire deaths to cancer. They can't be compared for any other reason than to make your point. Why not simply compare gun owners to gun deaths. At least that would be in context. People have been killing people for 1000's of years. While a gun makes it easy to do, it will still happen even if guns are outlawed. Timothy McVeigh didn't us a gun nut he killed and injured many people.

    August 11, 2012 at 9:18 pm | Report abuse |
  13. TexasGirl

    Does anyone on here think that there is the possibility that this evil creature will "get off" and not get the death sentance? Of course if he was in Florida he would but then the chid he killed was older that Caylee Anthony.
    also how in the world will a jury be found that has not heard of this "case" and then how can there be an Impartial jury as stated by sixth admendment. "The Sixth Amendment requires juries to be impartial. Impartiality has been interpreted as requiring individual jurors to be unbiased."
    There is no way in h e l l I could ever be "impartial on this.

    August 12, 2012 at 12:00 am | Report abuse |
  14. Ken

    How many of you people have ever been outside of the good 'ol USA? I know and have been in places where it is
    "required to have a weapon in your home. Do you know what the crime rate is for such places?? Almost zero!!!!!!!!!
    Criminals don't like going into places where they know there will be a weapon!!!!! As far as your so called "nutjobs"
    go, you need to look at the society in which they live. In other countries violence in movies and TV isn't shown like
    it is here in the USA. Did you know the 85% of serial rapist of the world are right here in this country!!!!!!!! I'm a firm
    believer that it's our type of social structure that has a lot to do with the way people in this country turn out!

    August 12, 2012 at 5:09 am | Report abuse |
  15. Lou Cypher

    I can see why people want to respond with a gun prohibition.

    I mean, the drug prohibition is working so well, the speeding prohibition, the drunk-driving prohibition, all of those are just models of effectiveness in public policy, clearly gun prohibition is a slam-dunk.

    August 12, 2012 at 6:31 am | Report abuse |
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