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

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 so 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 or not 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 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 – will also 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. The state of 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 long survive 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. 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?

Photo credit: Carsten Tolkmik, Creative Commons, Flickr.


  1. “Before we go any further, I should say that I’m opposed to capital punishment in all cases.”

    Very, very rarely does Mr. Littwin share one of his beliefs as clearly and unequivocally as he does there and it’s very refreshing. He has never wavered in his opposition to the death penalty and, unlike others, has not shied away from sharing the grisly details of the crimes committed by those receiving the death sentence.

    But what he has never done is explain why he opposes the death penalty. Not everyone who opposes the death penalty does so out of compassion as this quote from a Boston Globe pollster suggests: “It seems that voters have concluded that (Boston Marathon bomber Dzhokhar) Tsarina does not deserve a quick death, but rather should spend the remainder of his days in a windowless cell contemplating the heinous acts that put him there,” said Frank Perusal, president of Sage Systems LLC, which conducted the poll. “To voters, it would seem death is too easy an escape.”

    The motives of those opposing the death penalty are never questioned by the mainstream media but are artificially endowed with such heartwarming reasons as empathy, sympathy, warmth and humanity when, for some, opposition to the death penalty is driven by a much darker reason: sadism.

    So understanding the reason(s) behind Mr. Littwin’s opposition would be informative. And while his honesty portal is temporarily unlocked he might let his readers know if he supports Mrs. Clinton’s presidential bid. Of course, that intense level of honesty in such a compacted period of time may trigger anaphylactic shock and may even cause the Colorado Independent website to crash.


    “A 24-year-old Kuwaiti-born gunman opened fire on a military recruiting station on Thursday, then raced to a second military site where he killed four United States Marines, prompting a federal domestic terrorism investigation. Three other people, including a Marine Corps recruiter and a police officer, were wounded, according to law enforcement officials: New York Times

    “This new Dream, seeking revolutionary change in how America works, is not only impossible, but based on the faulty assumption that black Americans are the world’s first group who can only excel under ideal conditions. We are perhaps the first people on earth taught to consider it insulting when someone suggests we try to cope with the system as it is—even when that person is black, or even the President.” John McWhorter, Daily Beast

    “First, let’s consult the “Constitution” of the Jews, the Torah. Even a cursory reading of the relevant sections shows that the Torah is unequivocally opposed to the homosexual act, which it twice labels an abomination: Leviticus 18:22 and 20:13. It’s worth noting that this prohibition is grouped with several other unacceptable sexual practices, including bestiality. Scholars have reviewed various attempts to justify homosexual behavior through the “reinterpretation” of these Torah passages, and have found them to be unconvincing.”

    “So significant is the ban on homosexual activity that it is part of the afternoon Torah reading for Yom Kippur.”

    “Moreover, Judaism has taken this admonition to heart over the centuries. “Even in antiquity, when countless cultures and religions incorporated homosexuality in some form, Judaism absolutely rejected homosexual practices,” writes New York attorney Eytan Kobre in a recent edition of the Forward.”

    “The Utah man who claimed in April he was robbed twice by bigots who force-fed him bleach and carved “Die Fag” into his arms said he made everything up. Rick Jones, who co-owns the family’s Delta, Utah pizzeria told authorities he was bluffing when he said robbers attacked him before tossing a Molotov cocktail into his bedroom. The Millard County Sheriffs Department said they may now press charges against the 21-year-old man for the fake report after inconsistencies were discovered. Jones’s attorney Brett Tollman said his client has been seeking medical treatment and acknowledged that the attack tale spiraled out of control once it received national attention.” Daily Beast

    “’Cause I don’t have no use
    For what you loosely call the truth” – Tina Turner

    Folds of Honor
    Veterans Day – November 11, 2015

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