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August 18, 2013

Lawyers for Aurora shooter James Holmes attacking Colorado's death penalty again

As reported in this AP piece, the attorneys representing "theater shooting suspect James Holmes launched another legal assault on Colorado's death penalty laws Friday, arguing they don't set clear standards and that they make it too hard for jurors to weigh mitigating factors." Here is more on the latest developments in a high-profile state capital case:

They also complained that Arapahoe County District Judge Carlos A. Samour is ruling on defense motions too quickly and asked him to allow them to argue their points "fully and fairly."

Holmes is accused of opening fire in a theater full of people watching a Batman movie in suburban Denver in July 2012, killing 12 and wounding 70. He pleaded not guilty by reason of insanity to multiple charges of murder and attempted murder. Prosecutors are seeking the death penalty.

In two motions totaling 32 pages of arguments, defense lawyers argued the death penalty law is unconstitutional and asked Samour to rule out execution for Holmes. In addition to questioning the standards of the laws, the defense said the statutes allow fewer options for defendants to appeal the death penalty if they choose trial by jury than if they choose trial before a judge, without a jury....

Prosecutors are sure to file strenuous arguments that the laws are constitutional. Samour's decision is likely weeks away. Samour rejected the defense's previous attack on the death penalty law in May. Before Holmes entered his insanity plea, his lawyers argued the death penalty law could unfairly cripple their ability to mount an insanity defense.

With Holmes' life literally at risk, his lawyers are pursuing multiple lines of defense as well as questioning some of Samour's actions, to the judge's obvious displeasure. Samour has kept the case moving at a steady if not brisk pace, and one defense motion released Friday told Samour he has ruled too quickly on some defense motions — without a hearing, before prosecutors responded and without allowing the defense to reply to prosecution arguments.

The defense asked Samour to "refrain from issuing premature rulings." Samour hasn't ruled on the motion. Earlier Friday, Samour denied a defense motion seeking the mental health records of prosecution witnesses, bluntly dismissing it as a "fishing expedition."

Samour said Holmes' lawyers don't know whether any of the witnesses have received mental health treatment, whether any records of the treatments exist and whether the records are relevant to the trial. "In other words, the defendant wants the court to approve a fishing expedition," Samour wrote. "The court declines the invitation to do so."...

Samour denied 12 defense motions that sought a raft of records, including tapes of police communications on the day of the shootings, all statements that victims and witnesses made to police and all prosecution records of communications with victims. Samour granted a defense request for information on the credibility of prosecution witnesses, noting prosecutors didn't submit any arguments opposing that motion.

It is hard to fault Holmes' attorneys for raising every plausible pre-trial claim in an effort to prevent their client from being sentenced to death; indeed, they are ethically obliged to do so.  But I struggle somewhat, now a full year since the crime was committed, with claims by the defense that the trial judge, who seems to be just seeking to get this case to trial before too long, is guilty of resolving "motions too quickly." 

August 18, 2013 at 10:41 AM | Permalink


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These lawyers should not be given an unlimited budget. That would solve a lot of this nonsense.

Posted by: federalist | Aug 18, 2013 12:35:31 PM

The judge should begin to impose legal costs on the personal assets of the defense team, with ever doubling penalties. The trial is about guilt, not the constitution.

The families of the victims should form direct action teams. Then begin with lashings of the defense lawyers and of the judge if they fail to heed a warning to stop false delaying tactics, and do not complete a trial within a reasonable period. If lashings do not move matters forward, kneecap them.

There is no legal recourse for the victims and families. This is disgusting lawyer antics to any ordinary citizen. It is certainly not any ethical obligation to use false delaying tactics and pretexts. Zealous representation is a duty, but not the use of infinite obstruction. The judge needs to tighten up, and begin to discipline these out of control lawyers. Their endless procedural motions also generate billable hours, so they are really in bad faith, for profit making, and a straight robbery of tax money. One remedy would be to assign a lump sum payment for the entire defense, whether they take a day or a year. Billable hours have an irremediable conflict of interest, which cannot be overcome by any human being and should be banned by statute.

Posted by: Supremacy Claus | Aug 18, 2013 3:15:52 PM

Federalist "These lawyers should not be given an unlimited budget. " What is your source for the assertion the lawyers have an "unlimited" budge?

Posted by: Amy | Aug 18, 2013 5:33:23 PM

More substantively, this case illustrates the result of the takeover of psychiatry by the lawyers on the Supreme Court. Prior to 1975, the shooter would have been involuntarily committed to treatment based on his need for it, by two independent doctors. There was no abuse or railroading of patients. If there were, the remedies against the doctors were Draconian.

Then in a case, in a category only below Gideon in rent seeking size, the Supreme Court mandated a trial, employing a prosecutor, a defense lawyer, and a magistrate to decide the involuntary commitment, now based, not on need of the patient, but on his having done something dangerous. This decision now requires the hiring of thousands of lawyers, with the clinical decision to treat in the hands of a know nothing lawyer magistrate.

Now, the shooter qualifies for involuntary treatment, according to the know nothing, rent seeking traitors on the Supreme Court. Thank the vile lawyer traitor profession for every death and injury he caused.

Pray. Pray the defendant attacks and kills his defense lawyers, and preferably the filth on the bench. To deter. Nothing can be done to stop the lawyer stealing from the taxpayer. There is no legal recourse to this armed robbery with 2000 innocent people, most strangers, killed by paranoid schizophrenics a year. Thank the lawyer traitor.

Posted by: Supremacy Claus | Aug 18, 2013 8:25:55 PM

Amy, if they have the time to argue motions to subpoena the mental health records of prosecution witnesses, which in this case is ridiculous, then clearly they are getting paid for a lot of unnecessary work. Typical nonsense from a capital defense attorney---someone's a witness to a horrible crime, and some defense lawyer wants to open up their lives. Or maybe it is just to get some more fees.

Posted by: federalist | Aug 18, 2013 9:41:12 PM

Federalist: Sincerity check. Do you charge your clients by the hour or a flat rate for a matter? If you charge by the hour, there is a serious conflict of interest, and it must be disclosed to the client: you do better if the client does worse.

If you are paid a flat fee, the interests are in the same direction. The fee is a $million. You resolve the case with a 15 minute phone call, making the hourly fee equivalent to $4 million an hour. You are greatly enriched, but so is the client, because the matter is ended, with a known, limited cost.

Posted by: Supremacy Claus | Aug 18, 2013 10:06:24 PM

I tend to agree with the court on the mental health records of victims and witnesses, unless there is some foundation. I am surprised about witness statements and police activity not being part of discovery. I would think that would be standard.

Posted by: Ala JD | Aug 19, 2013 12:02:21 PM

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