A Dark Night in Aurora

by Dr. William H. Reid

  By the time Holmes was well enough to be discharged, five days later, the doctors had considered several significant psychiatric diagnoses. There was insufficient evidence, however, to verify any of them, so the psychiatrists summarized his condition as “psychosis not otherwise specified.” That’s a generic acknowledgement that he had been psychotic, but also that his symptoms didn’t fit accepted criteria for more specific disorders. The internists were confident that his physical and neurological findings, such as the acute delirium, had been caused by dehydration and starvation.

  Holmes was sent back to the jail on November 20 with antipsychotic medication (risperidone, often prescribed for patients with schizophrenia-like symptoms) and an antianxiety drug (lorazepam). The discharge orders said that he was soon to return to DHMC for follow-up, but that didn’t happen. ACDF staff returned him to his regular cell on the medical unit (not the BC cell), and Dr. Mozer prescribed his medication through the jail pharmacy. He was followed closely, on video and with nursing visits several times a day. He ate well, had no complaints, appeared to behave normally, took his medications as prescribed, and sometimes even chatted a little with the corrections officers.

  The ultimate cause of Holmes’s bizarre and self-destructive behavior, the thing that made it all happen, was never completely determined. Did he suffer from paranoid delusions that made him stop eating and drinking at the jail, becoming over days so physiologically impaired that his behavior became bizarre and self-injurious? That seems likely, especially in light of his lack of psychiatric treatment at the jail before his November “break.” Brain damage from either the fall from his bunk or hitting his head on the walls is an unlikely explanation, since two CT scans were negative and neurological examination found only abnormalities that could be attributed to the delirium, which cleared when his hydration, electrolyte balance, and nutritional status were restored.

  The search for a clear cause for his symptoms is made more difficult because cell surveillance video for the weeks before the fall was erased every twenty-four hours, and he didn’t talk with a mental health professional, or any other clinician, until well after the problems became severe.

  December 13, 2012, was Holmes’s twenty-fifth birthday. There’s no indication that either his birthday or Christmas was a special day or that either was even marked in passing.

  Dr. Mozer saw Holmes on December 28, six weeks after he had returned from DHMC. Holmes seemed depressed and voiced some suicidal thoughts. The doctor added escitalopram (Lexapro), an antidepressant, to his antipsychotic medication, risperidone. Escitalopram works for many, but not all, depressed patients. Most need at least a week to respond and several weeks to experience full therapeutic effect.

  Six days later, the custody staff reported that Holmes seemed to have a “wild” look in his eyes. Dr. Sather met with him later that morning and asked how he was doing. “Not good,” he said, talking with her more readily than usual. He told her that he was still thinking about suicide, perhaps by strangling himself with his clothing or a bedsheet. There wasn’t much reason to stay alive, he admitted; “I’d rather be dead.” Dr. Sather tried to get him to promise not to kill himself and to tell the deputies when he had impulses to do it. He wouldn’t, or couldn’t, make such a promise.

  Suicide is a big problem in jails, and protecting inmates from harming themselves is a difficult task. People such as Holmes have both internal and external suicide risk factors: their depression and other mental illnesses, their isolation, their boring existence, and, of course, the likelihood of life imprisonment or the death penalty. Threats of suicide are a slightly different problem. Inmates quickly learn that talking to staff about dying can change the way they’re housed or treated and get them some respite from day-to-day jail life. Voicing suicidal thoughts can be a manipulation for extra attention (even negative attention is sometimes better than nothing). It may postpone distressing court dates. Knowing whether or not the threat, the risk, is serious is difficult for jail psychiatrists, counselors, and other staff. Most understand that although the probability of suicide may be low, the stakes are very high.

  Once significant risk comes to light, the task for both clinical and custody staff becomes one of keeping the inmate alive. Keeping inmates alive isn’t very hard if you’re willing to take away their clothes, their belongings, and their furniture and watch them every minute. That’s what ACDF did with its inmates on suicide watch,2 and it’s what happened the first time Holmes went to the Hole. Holmes didn’t want that—he called it “torturous”—but he didn’t object very strenuously either, and he wouldn’t agree to a no-suicide “contract.”3

  Holmes was again put into a BC cell: no furnishings, “toilet” grate in the middle of the floor, “suicide mat” for sleeping, his clothes replaced by a suicide smock. He behaved normally, for him, this time. He ate well, drank plenty of fluids, and took his medication as prescribed. There were no odd movements, no signs of psychosis, no banging of his head against the wall. The jail didn’t preserve the continuous video as they had before, but staff wrote frequent notes about his condition, and Drs. Mozer and Sather saw him daily.

  Each day, he would ask about returning to his cell in the medical unit, MC-1. Dr. Sather and Dr. Mozer sympathized with his discomfort but acted with great caution, explaining—and he seemed to understand—that they needed to be sure he wasn’t suicidal before taking him out of BC. They explored, as best they could, his feelings about the current court hearing, the bleakness of his future, not seeing his parents or sister, and his isolation. He didn’t have, or wasn’t able to express, any feelings about those things. Sometimes he seemed confused when they asked what he thought or how he felt. (“I don’t understand the question.”) He preferred the concrete, the literal, the psychologically safe, and he continued to stare, pupils usually huge, without outward emotion. That was nothing new.

  Ten days later, on January 14, Mozer and Sather agreed that Holmes could return to his regular infirmary cell. He seemed happier, and the next few months passed without incident. The antidepressant seemed to be helping. He was still distant, with a flat affect, and responded in short answers, but he’d occasionally smile or make a little small talk with the deputies. Drs. Sather and Mozer saw him monthly for a while and assured him that they were available whenever he asked. He didn’t ask and often declined his regular clinic visits, but he took his medications regularly. Holmes’s mental condition had stabilized, due at least in part to modest doses of antipsychotic and antidepressant medications. There would be no significant incidents for the remainder of his stay in ACDF.

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  In March 2013, Holmes’s lawyers offered the district attorney, on Holmes’s behalf, a comprehensive guilty plea in return for the prosecution’s not seeking the death penalty. The prosecution declined the plea bargain and on April 1 gave official notice that they would indeed seek the death penalty. Six weeks later, on May 13, the defense formally advised the court that Holmes would plead not guilty by reason of insanity.

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  1 No relation to shooting victims Veronica and Ashley Moser.

  2 A short-term solution with problems and risks of its own, probably designed, in part, to decrease fake claims of suicidal thoughts.

  3 “No-suicide contracts” don’t reduce suicide risk anyway; truly suicidal people often kill themselves in spite of such promises.

  11. The Lawyers, the Court, and the Shrinks

  “… grimacing red-faced as if he were crying, shaking, breathing hard and unable to talk”

  (Holmes, during an early interview by Dr. Raquel Gur)

  Defense counsel was appointed within a day of the shootings. Holmes would be represented by lawyers from the Colorado State Public Defender’s Office: Tamara Brady and Daniel King, both chief trial deputies, Kristen Nelson, Katherine Spengler, and Rebekka Higgs, all aided by paralegals, assistants, and two defense investigators, Kevin Bishop (who is also a social worker) and John Gonglach. The team eventua
lly defended Holmes on 166 criminal charges, including 24 counts of murder, 140 counts of attempted murder, 1 count of explosives possession, and a sentence-enhancement count associated with crimes of violence. Each murder and attempted murder charge was made twice, once “with deliberation” and once for “extreme indifference,” a legal catchphrase associated with pursuing the death penalty.

  The prosecution was led by Eighteenth District of Colorado District Attorney George Brauchler and some of his most senior prosecutors: Karen Pearson, Rich Orman, Jacob Edson, and Lisa Teesch-Maguire, a victims’ rights specialist. The DA’s office also employed an outside death penalty expert, Dan Zook.

  The case was assigned to the court of Judge Carlos A. Samour Jr., an experienced jurist who would carefully and successfully manage three years of prosecution and defense motions, hearings, negotiations, and legal wrangling as the case followed its circuitous path toward the most sensational trial in Colorado history.

  Colorado is a death penalty state. Eight months after Holmes’s arrest, his lawyers went to District Attorney Brauchler with an offer to plead guilty in return for a sentence of life without parole. Brauchler, a thoughtful but fiery law-and-order prosecutor, declined. To Brauchler, as to most people in Colorado, if anyone deserved the death penalty, it was Holmes. The defense’s subsequent filing of an insanity plea began an extraordinary saga of investigation, almost obsessive defendant examination, legal negotiation, trial preparation, media sensation, and expense unique in the annals of Colorado—and perhaps US—judicial history.

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  Once DA Brauchler made it clear that he was going to prosecute the case fully and seek the death penalty, the defense had no choice except to highlight Holmes’s odd behaviors and try to find enough serious mental illness to mitigate the charges or, better, exonerate Holmes through an insanity defense. There was little question that he had a mental disorder, perhaps more than one; the defense’s job was to investigate and show that his psychiatric condition had a substantial, perhaps controlling, effect on him during and just before the shootings.

  Most crimes aren’t “crimes” unless the defendant intends to do something criminal. A person who commits an otherwise criminal act but whose mental condition removed his or her ability to intend for the act to be criminal can be found not guilty, or not criminally responsible, because that mental intent (called mens rea) was absent. The point is one’s ability to form the intent that is a necessary element of the crime. In the absence of intent to commit a crime, there is none.

  Every state, and almost every country in the world, has some version of an insanity defense (though a couple of states don’t call it that). In the United States, the insanity defense, and the possible finding of “not guilty by reason of insanity” or a similar phrase, is almost always misunderstood by those who’ve never worked with it.

  The first thing to understand is that the legal wording and definitions of insanity in criminal statutes don’t refer directly to any clinical psychiatric concept. The word “insanity” doesn’t even appear in most psychiatric textbooks, nor in current or recent editions of our official Diagnostic and Statistical Manual of Mental Disorders (DSM-5).

  The various state definitions of criminal insanity, and the federal one, differ a little from one another, but they all start by requiring that the defendant had a serious “mental disease or defect”—we’ll concentrate on “disease”—at the time of the alleged offense. It’s very important to understand the next requirement: If the (a) existence and (b) timing of the serious mental disease is established, it must still be shown that (c) the disease caused the defendant to be (d) incapable of intending to commit a crime. The take-home point is that no mental disorder is specifically equated with criminal insanity; the defendant’s functioning as a result of the disease at the time of the act is what matters, and it matters only after a qualifying disease is established. In Colorado, as of the Aurora shootings, those criteria were phrased as

  (a) … so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act … except that care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions, for, when the act is induced by any of these causes, the person is accountable to the law; or

  (b) … suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of a crime charged, but care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions because, when the act is induced by any of these causes, the person is accountable to the law.

  … “Diseased or defective in mind” does not refer to an abnormality manifested only by repeated criminal or otherwise antisocial conduct. [Further,] “mental disease or defect” includes only those severely abnormal mental conditions that grossly and demonstrably impair a person’s perception or understanding of reality and that are not attributable to the voluntary ingestion of alcohol or any other psychoactive substance but does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.1

  If a defendant is found not guilty by reason of insanity (NGRI), then he or she is, as a matter of law, not guilty of the crime(s) alleged. He or she is not a criminal.

  As strange as that may sound in a case of killing and injuring scores of people, it makes sense. Compare the NGRI concept to a five-year-old playing cops and robbers who shoots his friend with a gun he finds lying in the street, or to a woman who has a blowout on a freeway and plows into a school bus. Neither is called a criminal, and neither is likely to be charged with a crime. Similarly, if a person’s diseased mind causes him truly to believe, through no fault of his own, that people around him are demons trying to eat his soul and he stabs them in what he thinks is self-defense, it isn’t fair—or legal—to find him guilty of a crime.

  Whether or not those principles of law could be applied to James Holmes would be another matter altogether.

  Certain legal procedures had to be followed in order for Holmes to plead NGRI. First, a defendant who places his or her sanity at issue waives any confidentiality or privilege with regard to mental condition. Psychiatric records and other evidence, evaluation results, and communications related to sanity are no longer private, no longer the property of the defendant, and no longer covered by the usual rules of confidentiality, especially if introduced at a hearing or trial. Holmes’s entire mental health history would be opened; the prosecution and defense would eventually share whatever they wanted to bring to court in the way of examinations, records, expert reports, and the like.

  A plea of NGRI includes a plea of “not guilty.” The State (prosecution) must still prove all elements of the crime in order to convict the defendant; it can’t merely address his sanity. Intent is only one element of a crime; others concern whether or not the person committed the act, such as physically being there and taking the money in an alleged bank robbery, with or without intending a crime. As a practical matter, and one reason that the insanity defense is rarely used (in spite of rumors to the contrary), such a defense virtually admits that the defendant committed the act in question: “I pointed the gun and took the money, but I didn’t rob that bank.”

  Insanity verdicts are difficult to win. Even when defendants are clearly and seriously mentally ill, they’re often a last resort. One reason has already been mentioned: the defendant essentially confesses to all of the prosecution’s allegations except one: intending criminality. Another is that jurors, especially in more conservative parts of the country, don’t like the NGRI concept and may be prone to punish unsuccessful insanity defenses with severe verdicts. They, like most people, erroneously view NGRI as a way for criminals to get away with t
heir crimes, to thwart justice, in spite of the fact that most insanity acquittees actually spend more time in institutions than do people found guilty of the same charges. Jurors have to be taught the logic and fairness of the insanity defense and often must overcome their repugnance for the act, such as a brutal killing, before they can fairly consider whether or not the defendant met insanity criteria.

  Every defendant is presumed to be sane unless an insanity defense is raised. When that occurs in Colorado, the prosecution then has the burden of proving sanity—remember, sanity at the time of the alleged offense—beyond reasonable doubt. That’s different from most other states, in which the defense has the burden of proving insanity but by a smaller margin, such as a preponderance of the evidence (more likely than not). Thus, in Colorado, if the defense in Holmes could merely show the jury reasonable doubt about Holmes’s sanity at the time of the shootings, he would be found not guilty by reason of insanity.

  One of the first things Judge Samour did when Holmes’s lawyers offered his insanity defense was to order a sanity evaluation. The defense team had already retained Philadelphia psychiatrist Dr. Raquel Gur as its primary expert for their purposes. By May 13, 2013, the date the insanity defense was formally entered on Holmes’s behalf, Dr. Gur had already interviewed him four times.

  Dr. Gur is an eminent psychiatrist, also trained in neurology and radiology, and a much-lauded researcher on schizophrenia, a severe and incurable psychiatric disorder. She had limited experience working with lawyers and courts before examining Holmes but had been involved in a few defense cases before this one. In her early interviews with Holmes, a few weeks after his acutely psychotic2 episode in the jail and after he had begun psychotropic medication, she found a man who usually showed very little emotion or expression, who sat without much spontaneous movement, and who answered questions in short, unembellished sentences. He almost never spoke without being asked a question.