Holmes makes his first appearance

Colorado movie theater massacre “suspect” James Holmes made his first court appearance Monday morning, and I got to listen in live as I participated in Fox News’ coverage of developments in the case.  Holmes’ hair was dyed orange, and he looked somewhat “out of it,” reminiscent of Jared Loughner, the suspect in the Arizona mass shooting in which former AZ Rep. Gabrielle Giffords was a victim, but it’s tough to know why without examining him personally.

Maybe he was acting bored with the process; maybe he hadn’t slept much in jail; or maybe he was medicated (he probably has had a mental health “triage” at this point to determine what, if any, mental health services he requires in jail — e.g. “suicide watch,” which I doubt he’ll need because he went to great lengths not to get killed in the course of the massacre — and he could’ve received tranquilizing anxiety medication if he exhibited or complained of hyper-arousal).

The purpose of this first appearance was simply to advise Holmes why he is being held without bail.  Such first appearances are almost universally dissatisfying for victims and their families because they’re very brief and totally focused on procedure rather than substance.  This one was no exception.

Holmes is scheduled to make his second appearance, his arraignment, later this week, wherein he’ll be formally charged and an initial plea (which could change) will be entered.  This will be the first time we could hear the word “insanity.”  Keep in mind, a person can be clinically insane and still not be legally insane — even an acutely-psychotic schizophrenic can commit crimes consciously and intentionally.

Keep in mind also that the insanity defense, which has been around for centuries, exists to prevent people who are either A) incapable of discerning the nature of their actions, i.e. incapable of even knowing what they’re doing, or B) incapable of discerning the wrongfulness of what they’re doing, from being executed or imprisoned for life without parole — for example, a hallucinating paranoid schizophrenic who runs down the street waving a knife to stave off “evil spirits” whom he/she genuinely believes to be in deadly pursuit and happens to stab a passerby in the process.

(And by “wrongfulness,” I mean legal wrongfulness, for example, even if Charles Manson truly believed that it was right to try to start a race war by murdering people, which would seem clinically insane, he still wouldn’t be legally insane because he most certainly knew that murder is illegal — i.e., if you consciously choose to break the laws of the society in which you live, because you think you know better, then you should expect to be held responsible under those laws.)

In other words, the insanity defense exists to address incidents that are “accidents of illness.”  Those cases are extremely rare, and anyone who’d fit that bill would not be expected to be functioning well enough cognitively to engage in complex planning.  So who knows, maybe Holmes is schizophrenic (he’s within the prototypical age range of onset for that disorder); maybe he has a brain tumor; maybe he was abused somehow as a child; … .

None of it really matters, though (at least not until sentencing, when it could again be introduced as “mitigating” evidence, e.g., to spare him the death penalty), as long as A) he was capable of discerning what he was doing and B) he was capable of discerning that it was (legally) wrong, both of which appear highly likely given the presence of my “3 P’s” — planning, preparation, and practice — plus “consciousness of guilt” as evidenced by his active concealment of his criminal activities and intentions for weeks or months prior to the massacre.

In this case, we may hear mention of the concept of “mens rea,” in reference to Holmes’ mental state at the time of the massacre.  The argument would be that, due to mental illness, Holmes was incapable of forming the “mens rea,” the requisite criminal intent, to commit murder (i.e. to consciously kill another human being who was not threatening him in any way).  Essentially, that would be tantamount to arguing that he wasn’t able to discern the nature of his actions, as if he were unconscious at the time.

Also in this case, we may hear mention of the concept of an “irresistible impluse,” the idea that a person can know what he/she is doing, know that it’s wrong, and still be compelled by mental illness to do it anyway, even, for example, right in front of a police officer.  While that may still be a concept that Colorado courts can consider, most jurisdictions have discounted it, and for good reason — there’s virtually no such thing.

The only case in which it might apply is if, for example, someone with a neurological tic disorder flailed an arm involuntarily and hit a bystander — in that case, even if the striker knew what he had done and knew that it would be battery if done voluntarily, it probably wouldn’t be a crime because it wouldn’t have been voluntary (unless the striker knew that his arm was likely to flail and chose to stand next to the bystander anyway).  It doesn’t really matter, though, because in this case, Holmes apparently put off committing murder for weeks or months while he meticulously, patiently planned it out — that’s not an “irresistible impulse.”

Another interesting aspect of insanity law in the State of Colorado is its explicit exception of impassioned anger or hatred, whether toward an individual or group or society in general — sociopathy essentially — from the list of mental “conditions” which can be asserted to form the basis of an insanity defense.  Similar to the exception of voluntary intoxication as the basis of an insanity defense — that exists in most jurisdictions — this provision of Colorado law may well apply to Holmes if, as I’ve speculated, he murdered in order to gain a platform from which to broadcast views rooted in anger about or hatred of something societal or cultural.

After his arraignment, Holmes will likely undergo an evaluation of his competency to stand trial, probably even if he insists he’s competent, as I’ve opined he might (not wanting to appear insane if in fact he has something he wants to say and be taken seriously).  It’s generally tough to be incompetent — essentially all you have to do to be competent is be able to understand the charges against you, your plea options, the consequences that could befall you, the basic process that you’ll go through and the participants therein, and be able to assist in your own defense.

Assuming he’s found to be competent to stand trial, he’ll likely undergo a criminal responsibility (i.e. insanity defense) evaluation at a later time.  Then, if in fact an insanity defense is asserted (and it can be asserted even over Holmes’ objection in Colorado), the prosecution will attempt to prove that the evidence does not establish legal insanity, i.e. that Holmes should still be held criminally responsible for his actions regardless of whatever mental diagnosis(es) he may have.  And given the arguments against legal insanity that I’ve outlined here, plus the massive statistical aversion of juries to the insanity defense, I think it’s likely that the prosecution will prevail in that endeavor.

Meanwhile, people may be starting to come out of the woodwork, as I predicted, and acknowledge having seen indications that Holmes’ behavior was suspicious or concerning.  A Colorado gun-club president, for example, reportedly told his staff to refuse Holmes admission to the club after hearing Holmes’ voicemail greeting.

I continue to predict that more people, including people who knew Holmes far better, will gradually speak out and acknowledge that he could become radical, even volatile, if the world or life in general didn’t work the way he thought it should.  In other words, I don’t necessarily buy this “drastic” and “sudden” change that some in the media keep referencing.  (Note:  Holmes’ mother has released a statement to the effect that she was referring to herself, not to her son, when she told a reporter shortly after the massacre, “You have the right person” — i.e. that she did not intend to imply a lack of surprise that her son could be involved in such a thing but merely to acknowledge that she is in fact the mother of James Holmes of Aurora, CO.)

And before I go, I want to just acknowledge that I’ve used Holmes’ name in various places throughout this post.  I understand that some in the media aren’t using it, and I get it — they don’t want to give him the attention that he appears to have wanted.  But I also understand that people want and need information about the case, and it can complicate things somewhat if we commit to referring to him as “the person we don’t speak of” (as in the movie “The Village”) for the next year or two while the process plays out.  If individual media outlets and reporters/anchors want to do that, I think it’s fine, but I also think that he’ll be forgotten soon enough regardless — who remembers the real name of the “B.T.K.” serial killer here in Kansas?

P.S.  Quickly, in other law/psychology news today:

1) Jury selection finally began in the Drew Peterson murder case in Illinois.

2) Penn State University was severely sanctioned by the N.C.A.A., and rightly so, for its failure to protect children as the Sandusky child sexual abuse scandal went on for years (the school also took down a statue of former head football coach Joe Paterno over the weekend, and I liked a friend’s suggestion on Facebook that it be moved to Sandusky’s cell).

3) The two little girls who went missing in Iowa last week are still missing, but the F.B.I. has stated that it has reason to believe the girls are still alive — let’s hope so, we could use a happy ending!

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