Behind-the-scenes maneuvering erupted into a public quarrel between prosecutors and the defense over Holmes’ public offer to plead guilty, but the two sides could still come to an agreement that would spare Holmes’s life in exchange for spending the rest of his life in prison.
“Even if they give notice on Monday that they are seeking the death penalty, they can come off that and enter into a plea bargain any time,” said attorney Dan Recht, a past president of the Colorado Criminal Defense Bar.
As the tangled and bloody case returns to court, survivors and families of the victims are uncertain about what happens next.
If the case goes to trial, “all of us victims would be dragged along potentially for years,” said Pierce O’Farrill, who was shot three times.
“It could be 10 or 15 years before he’s executed. I would be in my 40s and I’m planning to have a family, and the thought of having to look back and reliving everything at that point in my life, it would be difficult,” he said.
Holmes is accused of a meticulously planning and brutally executing a plan to attack a Colorado movie theater at midnight during a showing of the latest Batman movie, killing 12 people and injuring 70.
Defense lawyers revealed in a court filing last week that Holmes would plead guilty if prosecutors allowed him to live out his days in prison with no chance of parole instead of having him put to death.
That prompted an angry response from prosecutors, who called it an attempt to gin up public support for a plea deal.
Prosecutors also said the defense has repeatedly refused to give them the information they need to evaluate the plea agreement.
Prosecutors want to know how persuasive an insanity case Holmes could make before they agree to give up the death penalty, said Mimi Wesson, a professor at the University of Colorado Law School.
“To the prosecution, it’s clear what they’re giving up, but less clear what the defendant is giving up, because it’s hard to know how strong his claim of insanity might be,” she said.
If prosecutors do accept a deal, they will want to ensure that it’s air-tight, said Karen Steinhauser, a former prosecutor who is now an adjunct professor at the University of Denver law school.
Holmes would give up his right to appeal by pleading guilty, she said. And although he could ask to change the plea if new evidence surfaces or if he claimed his lawyers were ineffective, “it’s very, very hard to withdraw it,” she said.
District Judge William Sylvester would want assurances from defense lawyers that Holmes is mentally competent to plead guilty and accept a life sentence with no parole, Steinhauser said.
The judge could order a mental competency evaluation before accepting a guilty plea, but Steinhauser said that’s unlikely unless Holmes showed some sign of incompetence.
She said Sylvester would probably accept the word of Holmes’ lawyers.
If Holmes is sentenced to prison, the state Department of Corrections would determine what kind of mental health care he gets, said Alison Morgan, a department spokeswoman.
A third of the state’s inmates have moderate to severe mental illness, and the prison system has an extensive mental health division with a 250-bed facility for the acutely mental ill, she said.
Inmates can be sent to the state mental hospital in Pueblo — where people found not guilty by reason of insanity are committed — but the stay is temporary, and they are returned to the prison system after treatment, she said.