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Colorado theater shooting: The next legal steps for James Holmes

James Holmes, the suspect in the Aurora, Colo., movie theater shootings, appeared in court Monday, making his first appearance in a legal battle that could last years before it even gets to trial.

Here is a primer on the usual steps in this type of case, based on interviews with several lawyers, including David Lane, who has defended death penalty cases, and Karen Steinhauser, a former Denver County assistant district attorney who is now in private practice and teaches at the University of Denver Sturm College of Law.

Q: What occurred Monday?

A: Holmes appeared in court in a pro forma proceeding, usually called an advisement. The purpose of such a proceeding is for the judge to tell a defendant what’s happening and to inform the defendant of his or her rights.

Q: What happens next?


A: The judge scheduled Monday, July 30, for the prosecution to present formal charges; it’s up to the prosecution to present the charges on which to proceed. Technically, the judge has to set a date for arraignment, but that’s expected to wait while some other issues are resolved.

Q: What issues are there?

A: The first issue is likely to be the question of competency, which in Colorado means: Can the defendant understand the charges and "materially assist in the defense"? The defense will likely hire its own psychiatrists or psychologists to evaluate Holmes with that point in mind. The competency question can be raised at any time, and the judge can weigh in on the issue as well.

Q: What about arraignment?

A: If the competency issue is raised early in the proceeding, Holmes will be sent to a state hospital for observation and tests to determine if he understands the charges and can help in his defense. Doctors there will eventually present a report with their findings. If Holmes is found to be incompetent, he could be treated, even with psychotropic medications, to be made legally competent.

Q: What happens if Holmes is found competent?

A: At that point, the judge can set an arraignment date on the original charges. At the arraignment, the judge can take a plea. The judge can also set a date for a preliminary hearing on the charges; in that hearing, the state has the burden of proving there’s a probable cause to believe that Holmes has committed the crime with which he is charged. Probable cause is a different — and lesser — standard than "beyond a shadow of a doubt," the grounds for conviction.

Q: What of the pleas?


A: Holmes can enter a plea of not guilty by reason of insanity. That defense is based on the idea that the defendant doesn’t know the difference between right and wrong, a far different issue than the one decided during the competency phase. The plea sets up another trip to the hospital for further testing and evaluations.

Q: What are the possible outcomes?

A: Under Colorado law, it’s possible for the defendant to be competent and still be not guilty by reason of insanity. It’s also possible for the defendant to know the difference between right and wrong and still be mentally ill.

Q: What about the prosecution and the death penalty?

A: Technically, the prosecution must decide within 60 days of the arraignment date whether it will seek the death penalty. However, the parties can seek to extend this period.

Q: What of the family of the victims?

A: Colorado has a very strong victims right law that requires prosecutors to consult with families of the victims at every critical step. Victims advocates in the prosecutor’s office have already contacted some of the families, and it’s the advocates’ responsibility to keep the families informed and relay the family concerns to prosecutors. However, the families’ decisions are not binding on prosecutors.

Q: What of the trial?


A: Once all of the issues are resolved, the trial could be as much as three years down the road. The actual trial in this kind of case can also take months. The jury will be asked to return a verdict on the charges and then the same jury will hear testimony about the possible penalty. If the jury convicts and if the death penalty is imposed, the appeals process begins and that can take years.

The last execution in Colorado was in the late 1970s.

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