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Holmes: Why the Prosecution is Waiting to Decide Whether to Seek the Death Penalty

9:27 am in Uncategorized by Masoninblue

Cross Posted from Frederick Leatherman Law Blog

James Eagan Holmes has been charged with 24 counts of Murder in the First Degree and 116 counts of attempted murder for killing 12 people and wounding 58 during a shooting spree inside a movie theater at the midnight showing of the new Batman film, Dark Knight Rising.

Facts are difficult to come by because the Court “has issued a gag order on lawyers and law enforcement, sealing the court file and barring the University of Colorado, Denver from releasing public records relating to Holmes’ year there as a neuroscience graduate student.”

I have written two articles about the case here and here reviewing the potential civil liability of the University of Colorado to the victims of the shooting spree for the alleged failure of its employees, psychiatrist Dr. Lynne Fenton and the members of the university’s threat assessment team to warn the police about a possible threat to harm people that Mr. Holmes may have expressed to Dr. Fenton on or about the day that he formally withdrew in early June as a student in a Ph.D. program in neuroscience.

Probably due to the Court’s gag order, the school has not yet disclosed the specifics of Mr. Holmes’s statement to Dr. Fenton. All that we know so far is that she attempted to convene the mental health clinic’s threat assessment team to review what he said, but the team declined to do so because he had withdrawn from the school.

As I explained in my two articles, given the restrictive and limiting language in the Colorado statute, I believe it is unlikely that the university will be held liable to the victims of the shooting for failing to warn the police about Mr. Holmes. We will have to wait and see what Mr. Holmes said to Dr. Fenton before we can definitively wrap up this discussion.

Now I want to discuss a different subject in the case; namely, the death penalty. The prosecution has charged Mr. Holmes with two murder counts per homicide victim. The two charges contain different elements and basically allege two different ways to commit the same offense. CBS News explains:

Holmes is facing two separate charges for each person killed or injured. The second charge for each alleges that in killing or injuring, Holmes evidenced “an attitude of universal malice manifesting extreme indifference to the value of human life generally.”

The prosecution announced shortly after filing charges against Mr. Holmes, that it has not yet decided whether it will seek the death penalty, if Mr. Holmes is convicted of murder.

Translated into the language we speak, that means it is waiting for the defense to complete its mitigation investigation and submit its report to the prosecution to consider in determining whether to file a notice that it will seek the death penalty.

Mitigation evidence is any evidence about the defendant or the crime he committed that in fairness or in mercy calls for a sentence of less than death.

Mr. Holmes appears to suffer from a serious mental illness, possibly a type of schizophrenia. The defense likely has assembled a team of mental health experts who are testing and evaluating his competency to stand trial and well as his mental functioning. No doubt they have been reaching far back into his life collecting all existing school, medical and mental health records.

Mitigation investigation has developed into an art form as well as a necessary and highly specialized skill over the course of the past 30 years. The most common reason for appellate court reversals of death sentences has been ineffective assistance of defense counsel for failing to conduct a thorough mitigation investigation.

A diagnosis of schizophrenia would be powerful mitigating evidence, even if it did not establish legal insanity, because schizophrenia is a debilitating mental disease over which a person has little or no control. Therefore, traditional arguments for the death penalty that are based on the idea of holding people accountable for their actions by sentencing them to death, lose power in the face of evidence that the person is delusional, not like others, and incapable of making responsible decisions on a regular basis. Most people recognize that there is something fundamentally unfair about sentencing someone to death who lacked the capacity to make rational decisions.

Mr. Holmes may also satisfy the test for legal insanity. That is, that he suffers from a mental disease or defect such that he cannot distinguish between right and wrong and conform his conduct to the requirements of law. Insanity is another mitigating factor.

Regardless of his mental condition, however, he committed horrific acts that required sufficient capacity to plan and carry out a moderately complicated scheme.

When the prosecution receives the defense mitigation report, it will submit it to its own panel of mental health experts for review and comment.

Eventually, both sides will meet and engage in serious discussions regarding whether a mentally ill man should be executed or spend the rest of his life in prison without possibility of parole.

Whether the prosecution ultimately decides to file the notice that it will seek the death penalty will depend on the outcome of those discussions and the thoroughness and quality of the defense mitigation report.

Namaste: If Not Now, When? Chapter 2

2:36 pm in Uncategorized by Masoninblue

Chapter 2

Blessed Are The Peacemakers And Those Who Forgive

A person who comments here at the lake using the name Mepeteluma, wrote this comment a few months ago in response to one of my blogs.

A thought. Some years ago my brother in law’s partner was brutally murdered while on a house cleaning job. It turned out the woman who owned the house was a drug dealer and was visited by some “colleagues” who showed up to kill her. Wrong place, wrong time for my brother in law’s partner. When she didn’t respond to his cell calls he went to the house. He was first on the murder scene.

The police made an arrest some time later and he attended the hearings. He told me that the police thought the case was weak and not to be surprised if the guy walked. He told me he sat in the courtroom and watched all the family members of the alleged killer. For days. The guy walked.

I asked him if he favored the death penalty. He said he didn’t care one way or the other, but he said, “if you have a death penalty, then I would add to the law. It would be illegal to kill anyone while their mother is still alive.”

There are extraordinary forgiving people among us. I recall such a man at Gary Ridgway’s sentencing. I and seven other lawyers represented Mr. Ridgway, who is also known as the Green River Killer – the most prolific convicted serial killer in our nation’s history. Gary pled guilty to 48 capital murders in exchange for a life-without-parole sentence. The forgiving man was the father of one of Gary’s victims.

We called him Santa Claus because he had snow-white hair and a matching full beard. He stood, addressed the court, and turned to Mr. Ridgway. I don’t recall his exact words, but he said something close to this.

Mr. Ridgway, I do not hate you. I do not understand why you murdered my daughter and I do not want to know. It took me a long time to stop hating and forgive you, but I did and you no longer rent space in my thoughts and heart. You can no longer hurt me. I feel sorry for you because I know that at some level you cannot hide from the horrors for which you are responsible. I will pray for you tonight. Pray that you wrestle with your demons and find peace. With all my heart and soul, I will pray for God to help you.

Listening to his words, I could not stop my tears from flowing as my mind flooded with memories of his innocent daughter’s face and the disturbing facts of her case that I had reviewed in the police investigation reports. She reminded me of my daughter and I felt shamed because I could not be as forgiving.

People have asked why I chose to be a death-penalty lawyer. Many of us who do this work have no clue why we do, but we do. Most of our clients are guilty of terrible crimes. All of us know that and yet we persevere. Many of us are so broken that we cannot do anything else. I was called to save something worth saving, I suppose. Something that reminds me of myself. There, but for the grace of God and all that shit. As a modern day warrior committed to peace and non-violence in troubled times, I am as a moth driven to flame. I cannot resist the call to save a life, no matter how seemingly damned, and the challenge of being the only person that stands between my client and the government’s needle that will deliver him to an uncertain, and some would say deserving end. Cheating the executioner. The smell of greasepaint and the roar of the crowd. As the scorpion said to the frog, “It’s in my nature.” Let me be as Shiva with the blue throat who drinks transmuting the poison of the world.

As one who saw himself as a superman and lived that life with an ego to match, I now know that one of the things we must do is end the cult of the individual superman. No one is coming to save us. We must save ourselves and the others, no matter how cruel and indifferent they may be, by acting together to seek out, honor, nurture, and love the sacred light that illuminates us, for in the end we the whole will always be greater than the sum of our individual parts.

I am convinced that the only way to change our nation’s terrible destiny is to plunge deep within ourselves, embrace our souls, and heal ourselves. When we do that, we will lose our fear and get our priorities straight. We shall become beacons of light, instead of shuttered rooms behind locked doors during the coming violent storms. By example we shall lead and teach the others. The meek shall indeed inherit the Earth, as foretold by the ancient ones.

I believe we cannot begin to fully comprehend who we are until we see and define ourselves holistically. That is, we exist and our lives acquire meaning only in relationship to the living earth, all of its lifeforms, and most immediately to all of humanity. In truth we are one and until we finally acknowledge that fundamental principle and banish the concept of the other from our consciousness, we will continue to exploit, trash, and destroy ourselves, other life forms, and the mythological Garden of Eden in which we live. Our task is to get other people to see this resplendent truth and to spread good will through empathy, practicing the Golden Rule, and celebrating the miracle of consciousness.

Let there be no mistake. Love and forgiveness are the most powerful forces in the universe while vengeance is no better than a mouthful of dust. Any economic theory such as neoliberalism, that fails to acknowledge this fundamental principle, or that sanctions selfishness, greed, or exploitation in any manner for any purpose is obscene and doomed to fail, if for no other reason than the many who have been schooled in the fundamental and enduring principles of life, liberty, and the pursuit of happiness will not long tolerate the tyranny of the few.

The Issue In Jared Loughner’s Case Is Whether He Lives or Dies

10:54 am in Government by Masoninblue

Electric Chair by Andy Warhol (photo: fibonetti via Flickr)

The issue in Jared Loughner’s case is not whether he is convicted or acquitted. The issue is whether he lives or dies. They have him on videotape committing the murders, he was restrained at the scene by a shooting victim and several onlookers, and they have his handwriting on an envelope recovered from his residence in which he admitted that he planned it, together with a form letter from Congresswoman Giffords addressed to him and dated August 30, 2007, thanking him for attending a meet and greet that had occurred five days earlier. They also have at least one close friend, Bryce Tierney, who told Nick Baumann, a reporter for Mother Jones magazine, that Loughner disliked Congresswoman Giffords because he didn’t like her answer to a question that he asked at that meet and greet. The question he asked was, “What is government if words have no meaning?”

Our best death penalty lawyers are part lawyer and part priest. They aren’t in it for the money because prosecutors rarely, if ever seek the death penalty against a rich person, and only the filthy rich have enough money to pay for a defense in a capital case. Death penalty lawyers are public defenders compensated with their regular monthly paycheck, or private counsel who are court appointed and compensated at rates that usually fail to cover their monthly overhead. Court appointed counsel in federal death-penalty cases are compensated at an hourly rate up to a maximum of $178/hour. Because they are so demanding of counsel’s time and energy, it’s extremely difficult to handle other cases when representing a client in a capital case. I used to clear the decks when I agreed to take one on and I always lost money when I did.

Why did I do it? I did it because it’s the right thing to do. We aren’t smart enough or wise enough to play God.  . . . Read the rest of this entry →