Littwin: James Holmes real trial begins: To kill or not to kill the mentally ill |

Littwin: James Holmes real trial begins: To kill or not to kill the mentally ill

Mike Littwin
Fair and Unbalanced

Now that James Holmes has been found guilty of the terror that he brought to the Aurora theater that night three years ago, the real trial begins, in which the jurors decide whether Holmes lives or dies.

No one can be surprised by the guilty verdict in a trial in which the testimony was often so heartbreaking. The mass murders were not only an offense against the victims and their families, but also an offense against an entire community.

And in any case, the question wasn’t whether Holmes had done the unthinkable. He had admitted he had. The question put to the jury was only whether Holmes was legally sane when he did the unthinkable. It was clear from the start how this phase of the trial would end. Whether the testimony actually showed him to be sane or insane, Holmes would inevitably be found sane enough. And so he was.

This verdict was not about expert testimony or about the ramblings in a notebook or about the hours of psychiatric interviews or about Holmes’ strange — yes, crazy — ideas about gaining “value” from killing others. Holmes said himself he knew right from wrong. Philosophers have trouble with that concept. It’s no wonder when juries do.

But now the certainty ends and the question changes. It also gets tougher.

Because whether Holmes was legally sane — and the verdict won’t end those arguments — he is clearly mentally ill. There seems to be no argument about that. Psychiatrists testifying for the prosecution and for the defense agreed, most of them putting him somewhere on the schizophrenia spectrum. We assume all mass murderers are not normal, but a diagnosis of schizophrenia makes it official.

The penalty phase of the trial could last as long as a month, and we will doubtless hear about Holmes’ long struggle with mental problems. And so the question for the jury, and for the rest of us, will be: Should we execute a mentally ill killer in Colorado?

That’s a much different question than determining guilt or innocence. And in this, where the facts were not in dispute, it’s a much harder question. What are the rules, legal or moral or otherwise? What level of sanity is sanity enough? The same jury that determined that Holmes was legally sane — a so-called death-qualified jury, meaning the jurors have agreed they’re willing to impose the ultimate penalty — also will make that decision.

Before we go any further, I should say that I’m opposed to capital punishment in all cases. This hardly makes me a radical. The state of Nebraska, where you’re hard pressed to even find a liberal, has just banned capital punishment. Pennsylvania, where 185 prisoners are currently on death row, is sufficiently ambivalent about the punishment that it hasn’t executed anyone since 1999.

As I wrote after the Nebraska legislative vote, capital punishment can’t survive long without certainty, and it’s pretty obvious how uncertain we are on this issue. Barack Obama is said to be “evolving” on capital punishment, meaning we could see some executive action on federal death penalty cases. The polls, which not so long ago showed 80 percent of Americans favoring the death penalty, are now closer to 50 percent if life without parole is given as an option.

When the case of the botched Oklahoma execution of Clayton Lockett went to the Supreme Court, Justice Stephen Breyer wrote a 40-page dissent saying that it was time to look again at the death penalty as cruel and unusual punishment.

“The arbitrary imposition of punishment,” he wrote, “is the antithesis of the rule of law.”

The arbitrary argument is easily made. Most executions come from just a few states and, in most cases, from only a few districts in those few states. This is the definition of arbitrary; There were, by one account, 35 executions last year as opposed to nearly 15,000 murders.

In Colorado, there has been only one execution since the Supreme Court reinstated the death penalty in 1976. Gov. John Hickenlooper’s controversial reprieve of Nathan Dunlap — made as Hickenlooper also evolved on capital punishment — became an issue in the gubernatorial race, but obviously not a decisive one.

But what comes next in the Holmes case could be decisive. The Supreme Court has put limits on the death penalty. You can’t execute a minor. You can’t execute someone with a sufficiently low IQ. How does mental illness fit into that equation? It may take many years of appeals to find out.

If a death-qualified jury were to decide that life without parole is the proper punishment for a mass murderer, that could change the course of the death penalty in Colorado. That is probably a long shot, though. In liberal Massachusetts, where they banned the death penalty three decades ago, Boston Marathon bomber Dzhokhar Tsarnaev was sentenced to death in federal court by a death-qualified jury. That’s despite the fact that a Boston Globe poll showed that only 15 percent of Bostonians favored death.

Of course, that was a terrorism case. In the Holmes case, the motive is not so easily explained. If jurors decide that the explanation is, in large part, that Holmes may be legally sane but still mentally ill, what do they do? What should they do?

Mike Littwin runs Sundays in The Aspen Times. A former columnist for the Rocky Mountain News and Denver Post, he currently writes for