James Holmes’ arraignment and new twist in the Conrad Murray case

On Monday morning, 142 criminal charges, including 24 counts of first-degree murder, were filed against suspected Colorado movie theater shooter James Holmes at his 45-minute arraignment (24 murder counts because each of the 12 deaths resulted in both a charge of first-degree murder based on premeditation and an alternative charge of first-degree murder based on “extreme indifference” to human life, as when someone shoots a random house full of bullets, not necessarily intending to kill any specific individual yet extremely likely to kill an individual).

By most accounts (there were no cameras in the courtroom, so these are all secondhand), Holmes appeared significantly more lucid than at his first court appearance last week.  He audibly uttered just one little word, but the word is hugely significant because it was uttered in response the judge’s inquiry as to whether Holmes understood the charges against him…”Yes.”  That’s huge because a criminal defendant’s understanding of his charges is one of the key components of competency to stand trial.  And, if he understands the charges, then it’s tough to imagine that other key components — like understanding the roles of the participants in the proceedings, understanding what’s happening in the proceedings, understanding the different potential pleas, understanding the potential sentences — are present as well.

The only key component that may still plausibly be argued is Holmes’ ability to assist in his own defense, if he continues to say that he can’t remember the massacre.  As I said last night, however, the chance is statistically infinitesimal that someone has amnesia only for the specific events occurring in the course of capital crimes that he committed.  Amnesia for specific events generally has either some organic, structural cause — like a head injury or stroke — or some brain-debilitating substance intoxication that would generally render someone incapable or executing a complex mass-murder plan (and there are admissible tests to prove the presence or absence of these things).

There is such a thing as “psychogenic” or “dissociative” amnesia, which is essentially psychological rather than physiological in origin, but that’s generally a phenomenon associated with trauma, whereby victims suppress memories of shockingly, overwhelmingly negative emotional experiences.  Although there’s really no admissible test to prove the presence or absence of this, it is not a phenomenon generally associated with experiences that people planned to have, even fantasized about having, for months prior.  So, the amnesia story is implausible any way you look at it.

But even if Holmes did have amnesia for the events of the massacre, the defense argument for innocence by reason of insanity would still have to be that he didn’t know what he was doing at the time of the crime, or if he did, he was incapable of knowing that his actions were criminal.  Okay, but the evidence against that argument (i.e. the evidence that he did know both the nature and quality of his actions) is all of the planning and concealment and writing that he apparently did prior to the crimes.  So, unless he’s claiming amnesia for all of 2012, he can still assist in the daunting task of trying to refute all of that evidence whether he remembers the massacre or not.  Plus, if the defense argument is that he was criminally insane at the time of the crimes, in a sense he’d be assisting in that — futilely in my opinion — by merely insisting he was in such a fog at the time that he can’t remember anything.

I still think, however, that there may be an internal battle between Holmes and his attorneys as to whether to challenge his competency or sanity.  In fact, I think that his response to the judge’s question on Monday morning, and the fact that Holmes verbalized it personally (rather than having an attorney speak for him), may suggest that the battle has already begun.  If Holmes truly has something he wants to say to the nation at a trial, he may paradoxically maintain both that he’s competent now and that he was sane then, even as his attorneys argue the opposite as their only (dim) hope of saving his life (the decision whether to seek the death penalty hasn’t been made and won’t be made for weeks or months, but I predict that it will be sought).  The telltale sign of such an internal battle between the defendant and defense counsel will be a request by the defense counsel to be discharged from the case at some point, so stay tuned!

In other law-psychology news, briefly, counsel for Dr. Conrad Murray, personal physician of the late Michael Jackson and currently serving four years in prison for the involuntary manslaughter of the singer, is requesting new forensic tests purported to prove that Jackson injected himself with a lethal dose of pure propofol rather than a propofol/lidocaine mixture administered by Murray.  As both an attorney and an expert routinely called upon to assess physician misconduct cases, I’m really not sure why this distinction would even matter though, because an involuntary manslaughter conviction is predicated upon the defendant’s reckless indifference to a deadly risk that his actions created.  In this case, the propofol, whether pure or mixed, should never have been anywhere near Jackson in his home, so it seems to me that a reasonable jury could’ve concluded that Murray was recklessly indifferent to the risk of Jackson’s death in bringing the propofol to the home and administering it there in the first place, regardless of who administered the lethal injection.

P.S.  Drew Peterson goes on trial on Tuesday, finally!  Stay tuned for more about that as well.

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