So what if he’s crazy? What a not-guilty verdict would mean for James Holmes

The Aurora theater shooting trial could come to an abrupt end this week. If the jury finds James Holmes guilty, jurors will have to decide if he deserves the death penalty. If they find him criminally insane, as his defense team hopes, the trial would be over and he would be sent to the Colorado Mental Health Institute in Pueblo, indefinitely.

But then what?

CMHIP would not comment on the kind of treatment a patient like Holmes could expect to receive. Both course of treatment and length of stay are protected health information under HIPAA.

According to a fact sheet sent by communications director Alicia Caldwell, individuals found not guilty by reason insanity are admitted to a high-security unit for psychiatric evaluation and treatment until their symptoms stabilize.

“Anyone found NGRI is initially in maximum security in isolation while further evaluated and observed,” said former forensic psychiatrist Sy Sundell. “Any and all movements from there are based on psychiatric evaluations, observations, cooperation with medications, and perceived dangerousness to self or others,” he said.

The two state-appointed psychiatrists who examined Holmes before trial found him legally sane but mentally ill.

In November 2012, four months after carrying out his attack, Holmes was placed on suicide watch after he fell backwards off his bunk in prison. He later smeared feces on himself and exhibited jumbled thoughts and incoherent speech.

If repeated in the state mental institution, this kind of episode—which has made up the bulk of public defender Dan King’s insanity defense—would likely classify Holmes as a danger to himself or others.

However, the defendant is now medicated. During court proceedings he is quiet, tranquil and unobtrusive.

Many have speculated that this kind of behavior could lead to his eventual release.

Defense attorney Kristen Spengler has expressed concern that this assumption could bias jurors.

“Our concern is that, given the facts of the case and the evidence that the jury has been presented with and will be presented with, that they might think, mistakenly, that it would be very easy, or that Mr. Holmes would be released from custody or from CMHIP into the community relatively quickly in the event of a not guilty by reason of insanity verdict,” she told the court in June.

The assumption wouldn’t be unfounded. Under Colorado statute 16-8-115, Holmes could request a release hearing as soon as 182 days after being committed. Statistics from the CMHIP show that those found NGRI on murder cases serve an average of 8 years there.

According to former prosecutor Bob Grant, who successfully prosecuted the last death penalty case in Colorado to lead to execution, the 1997 killing of Gary Lee Davis, Holmes’ criminal status disappears with a not-guilty verdict.

“If he’s found not guilty by reason of insanity, he’s not a criminal.” Grant said. “He’s not held as a criminal. He’s held until he’s able to be released because he’s not a danger to himself or others.”

The court can order any examinations, investigations or studies deemed necessary to evaluate a patient who requests a release hearing. If none of these reports show eligibility for release, the request is denied. If granted, the defendant can choose to have a hearing before the court or a six-person jury. After granting a request for a release hearing, the court must contact all victims—70 survivors, in this case—and their families.

Grant said a release trial for someone like Holmes would result in public outcry.

In the Aurora theater shooting trial, the prosecution must prove beyond a reasonable doubt that James Holmes was sane at the time of the crime. But in a release hearing, the burden of proof lies with the defendant.

Grant said releases rarely, if ever, happen in cases like Holmes’.

“The system has a long memory,” he said.

Sundell agreed.

“The nature of the crime clearly affects how the system processes an individual, whether those making the decisions admit it or not,” he said.

Photo credit:, Creative Commons, Flickr