Holmes Plea: A Failed Insanity Defense Would Raise Death Penalty Risk

James Holmes’ plea on May 13 will likely be changed to not guilty by reason of insanity to the over 160 counts of murder and attempted murder in last year’s July 20 Batman movie attack on a Denver area theater. His attorneys filed the court paperwork on Tuesday to make the change.

More than 12 people were left dead in the unexplained slaughter, which raised the stakes in the nation’s ongoing gun control debate.

The prosecutors will seek the death penalty because of the strength of the evidence that 25-year-oldJames Holmes planned and carried out the attacks. Defense attorneys reportedly sought a Holmes plea deal, but the prosecution refused.

For most trial observers, the next step — an insanity plea — seemed obvious. But his defense team has delayed the move for weeks.

For one thing, even if you’re nuttier than a tree full of squirrels, as the orange-haired Batman villain wannabe apparently is, that doesn’t mean that you’re not guilty by reason of insanity under the law.

Holmes would probably have to prove that he was so confused that he didn’t understand right from wrong — perhaps a challenge for the erstwhile doctorate candidate in neuroscience at the University of Colorado Anschutz Medical Campus in Aurora, Colorado.

And if the insanity defense fails, under Colorado law, Holmes could be barred from calling witnesses to testify about his mental health.

“If you don’t cooperate during the evaluation phase, you lose the right to call witnesses in your own behalf who could help convince a jury that your life should be spared,” law professor Karen Steinhauser explained to ABC News.

That means that if he’s found guilty, his defense team would have trouble mounting a defense against the death penalty — so much trouble that they have previously tried to argue that Colorado’s insanity law was unconstitutional.

When the team tried to make that argument in March, Arapahoe County District Court Judge William Sylvester seemed to have little patience for what he may have believed to be a delaying tactic. The judge ultimately entered a standard plea of not guilty for James Holmes himself.

The current judge on the case, Arapahoe County District Court Judge Carlos Samour Jr., has already said that he will give Holmes’ lawyers another chance to change James Holmes’ plea at next week’s hearing.