Why was James Holmes, the Movie Theater Killer, Spared the Death Penalty?

Robert Berezin, MD
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Why was the insanity plea nullified in the movie theater killings in Aurora, Colorado? The answer is simple – because the carnage was so horrendous that there was too much public pressure in favor of the death penalty. There was no way the insanity plea would be allowed. Nonetheless, Holmes was clearly and incontrovertibly psychotic and delusional. It was the only reason for the horrendous murders.

Shortly after midnight on July 20, 2012, James Holmes dressed, in combat body armor entered through an emergency exit at the premiere of “The Dark Knight Rises,” in Aurora, Colorado. He threw gas canisters, then opened fire with a shotgun, assault rifle and a semi-automatic pistol. He killed 12 people: Jonathan Blunk, Alexander Boik, Jesse Childress, Gordon Cowden, Jessica Ghawi, John thomoas Larimer, Matthew McQuinn, Alex Sullivan, Alexander Teves, Rebecca Ann Wingo, Micayla Medek and six year old Veronica Moser-Sullivan. He wounded 70 other victims. He surrendered to police outside the theater without a fight. He told them that he had set up a lethal booby trap in his apartment which he hoped would divert police away from the theater. The 27 year old Holmes said he had been obsessed with thoughts of killing since he was ten. He hid his homicidal thoughts and plans from his psychiatrist. He revealed his secrets to her in a notebook that he sent her just before his killing spree.

The only issue that generated confusion in this trial is the misguided and outmoded ‘innocent by reason of insanity’ plea. [see – “It’s Time to Scrap, “Innocent by Reason of Insanity. Time to change to “Guilty By Reason of Insanity”] For starters we have the archaic and insulting concept of insanity. It has no credible definition, and our understating of psychosis has changed since the civil war. It should be called delusion. The insanity defense began in English common law, in 1843 with the M’Naghten case. M’Naghten killed the secretary to the prime Minister in a failed assassination attempt on the prime minister. He was found that he couldn’t appreciate the nature of his actions during the commission of his crime, and did not know right from wrong.

In this trial the prosecution circumvented the insanity plea when two state-appointed psychiatrists testified that Holmes knew right from wrong and therefore the ‘insanity defense’ did not apply. The prosecution prevailed against the two defense psychiatrists who claimed that Holmes’ schizophrenia led to a psychotic break, and his powerful delusions drove him to carry out the shootings. “The evidence is clear that he could not control his thoughts, … he could not control his actions, and he could not control his perceptions,” defense attorney Dan King said during closing arguments. The trial actually operated in the correct manner despite the rulings. The only question at issue was whether or not to put Holmes to death. The jury ruled ‘no’ on the basis of his psychiatric condition.

Here’s the problem for the law. It is a misunderstanding of a schizophrenic delusion that one does not know the nature of one’s actions or one does not know right from wrong. Neither characterization of psychosis is valid. This would only be true in a state of toxic confusion, with a brain tumor, or a fugue state in temporal lobe epilepsy. Although Holmes was deluded, he knew what he was doing and that it was wrong, as did M’Naghten. As opposed to 1843, we no longer think that schizophrenia as a state of demonic possession or other such theories.

Consciousness is organized as a play in the theater of the brain – The “play” is an entire representational world that consists of a cast of characters who relate together by feeling, scenarios, as well as plots, set designs, and landscape. In schizophrenia consciousness is altered due to something genetic, epigenetic or most likely in the context of damage due to early deprivation or abuse. As a result of a psychotic break, consciousness loses the intactness of the play itself and the intactness of the self. The damage to these plays derives from an unmanageable limbic rage where the cortex cannot encompass this powerful rage in a cohesive way. When the self and its primal play flies apart, it generates a state of terror, the dimensions of which are far more powerful than regular anxiety. This terror/rage is the central characteristic of all of the psychotic character worlds. [See – The Secret World of Schizophrenia – The tragedy of a promise unfulfilled.]

Although the self and the plays are fragmented, consciousness continues its ongoing process of playwriting. Consequently, the cortical imagination now writes new plays that are anchored in this limbic rage/terror experience. Disrupted plays of a fragmented self and terror-filled feeling and other-worldly plots are written and inhabited. The feeling of these other-worldly plays are captured by words like awe, dread, or horror. This is where delusions come in. Clearly, people with paranoid schizophrenia are delusional when they hear voices that are not there or have religious ideas that they are God or Jesus or the devil, or that God is talking to them, or that they have to follow command voices, or that they are space aliens with mental powers, or that they can hear radio waves from their teeth, or that their thoughts are being broadcasted, or that they have microchips implanted in their brains. In paranoid states with delusions that the FBI or the KGB are spying on one. In catatonia it is delusional to believe that intentional muscular action or intentional speech would cause a nuclear holocaust and destroy the world. Or a physical movement would unleash a murderous rage. (I suspect that Holmes had some form of catatonia. Of course I don’t really know, never having talked to him).

Delusions with someone like Holmes do not just come out of the blue. The description of the loss of a girlfriend and then the inability to pass his courses as he fell apart is a very common story. This is the context when delusions arise. The rage at his girlfriend could well have gotten displaced into a horrifying story that was not very different from the Batman movie itself. Instead of being in a position to mourn his pain, Homes acted on his horror story.

Now things get tricky. There is a difference between having all kinds of violent fantasies and acting them out. Violent fantasies are not illegal. Once a crime is committed, it no longer can be understood just by the state of mind of the accused. Because now there are victims involved. There are consequence for other people. In Holmes’ case there are the people he killed; there is the pain and torture of the people he injured; there is the trauma for them and everyone else in the theater; there is the extended pain and horror for the families where the ripples extend outwards for generations. Holmes did more damage than the Boston Bombing Massacre.

In our legal tradition there has to be an intent to do something that one knows is wrong. There must be the existence of a ‘guilty mind’. Without this capacity one can’t be guilty of a crime. This is the fallacy. In a psychotic state the object of a crime may be displaced, but in fact the intent is clear. This is always the case. It is of interest that the court makes an exception regarding ‘mens rea’, guilty mind, for drunk driving. It doesn’t allow an insanity plea. There is more of an absence of ‘guilty mind’ in a drunk driving death than there is in the delusions of James Holmes. This exception reveals the faulty assumptions of the law. This can be rectified with ‘guilty be reason of insanity’.

As I said in the other article, “A deeper understanding of a psychotic character also muddies the water between the claim of no responsibility or some responsibility. For instance, I evaluated a woman, many years ago after she had jumped out a third story window and lived. She claimed it wasn’t a suicide attempt because she was certain that she would ascend to heaven in her body. She believed she would be going up, not down. Yes, she was deluded. The real truth was, on further evaluation that she was indeed suicidal, even though at the moment of jumping, she was ‘temporarily insane’ and believed her story. The ‘tell’ is that she didn’t decide to ascend to heaven from the ground, where if she failed, no harm, no foul. Even though she honestly believed she’d go up when she went out the window, it was a suicide attempt. Even though her right hand did not know what her left hand was doing, her action decision was unerringly accurate. She was going to go down to her death. Despite her deluded belief, she was in fact trying to kill herself.”

There are two conflicting issues in the quest for justice – he state of mind of the perpetrator as well as accountability and responsibility for damage done. Both of these have to be weighed. My current position is that by committing a crime that is sufficiently horrific one deserves to forfeit one’s life. I have gone back and forth on this a number of times in my life. In regard to the death penalty, people of conscience can disagree. I do not presume I am right. And at the same time I am certainly predisposed towards not giving the death penalty to those in extreme psychotic states.

For sure ‘Guilty be Reason of Delusion’ would separate the findings of guilt or innocence from the punishment imposed. If a person was found ‘innocent by reason of insanity’, he would be sentenced to a psychiatric facility. If he were later declared to be ‘healthy’ he could then be freed. Then he would bear no accountability or responsibility for harm done. With ‘Guilty be Reason of Delusion’ the punishment phase can be done appropriately, where the state of mind of the defendant should come into play. ‘Guilty by reason of delusion’ would give a nuanced and responsive punishment, taking all factors into consideration.

I respect the wisdom of having all twelve jurors be unanimous for a punishment decision. It is easy to sit here and say how I would have voted. But in truth I don’t know. When a juror actually has the life or death decision in his hand, things are different. It is the real thing. In that regard it is the best of an imperfect system.

The jury found Holmes guilty of attempted murder on all of the 140 counts against him for the 70 people wounded in the shooting. Additionally, he was found guilty of one count of possession or control of an explosive or incendiary device. As it turned out the jury overrode the denial of the ‘innocent by reason insanity’ plea anyway. The jury operated on the basis of ‘Guilty by Reason of Delusion’. And in the punishment phase even though nine jurors chose the death penalty, two had misgivings, and one was opposed, James Holmes was given life without parole. I respect the decision of the jury. The archaic law needs to be changed.

41 COMMENTS

  1. From what I’ve read about the case, I believe that if the prosecution was after the death penalty they made a mistake in their choice of expert witnesses. They had their forensic psychiatry experts, two of them I believe, testify that he would not have committed this crime if he were not mentally ill. Insanity may mean “a danger to oneself and others” in a court of law, but etymologically the words means non-health, or sickness. All of those “sickness” pleas are generally a matter of excusing people for not knowing the difference between right and wrong, or, to put it another way, for not staying the trigger finger. The prosecution, more or less, had then given the defense this mitigating circumstance defense. They’re arguing aggravating circumstances versus mitigating. I’d call that a not very effective call if I’ve ever heard one. Once you’ve given the defense an out, you can’t take it back.

    As for calling him “ill”, I would call that a matter of conjecture, not to mention presumption. If the issue were to be decided by expert witnesses, well, you’ve got witnesses for the prosecution arguing against ‘cold blooded’ ‘intentional’ ‘murder’. Really? If it wasn’t ‘cold blooded’ ‘intentional’ homicide, it has to be something else, right? All the jury has to do to spare his life is to buy the prosecution argument that he was “mentally ill”. Thanks, DA.

    Personally I’m against the insanity plea across the board, but being against the death penalty also, this creates something of a dilemma. In many capital murder cases, the only effective argument against the death penalty is the insanity defense. In James Holmes case nobody was going to let him walk away scot-free however apparently a version of the insanity defense, mitigating circumstances, has kept him from getting a lethal injection. My feeling is that the reason many of these tragic events occur is due to social and environmental circumstances, and that if those social and environmental circumstances were alleviated, mass murder would be rarer. The six year old victim was innocent. I’m not so sure about the rest of the victims. Mass murder is trending right now. Hopefully, this won’t always be the case.

    • When I attempted suicide twice I certainly knew what I was doing, but I was out of control.

      When I was prescribed an alternative but similar medication, I had to nearly break my way into hospital. I was out of control and my thinking was dramatic, but I might have appeared quite normal.

      I tapered off the strong drugs very gradually and have had no more extreme episodes or hospitalizations (in 30 years).

      I’ve remained well through psychotherapy. I needed this anyway to compensate for withdrawal syndrome dysregulation.

      It seems to me that these dramatic outrages always have a medication component attached to them.

      • Used to be the penalty for attempting suicide was death. I imagine if it was again that would automatically up some people’s appreciation of life, and, perhaps, it would act as a deterrent. Perhaps not. All the same, whether life is or isn’t worth living is not an argument I want answered by police, of the law enforcement kind, or the mental health variety.

        Know that this is coming from someone with the scars to prove he has toyed around with the idea. All the same, going on was my own decision, and not a decision forced on me by anybody else. All and all, suicide, like murder, and especially like mass murder, is a very self-indulgent matter, and I think there is always a solution in putting other people’s interests before one’s own when it is called for. Putting too high a value on one’s own life, well, there we go again, getting things out of focus and perspective.

  2. Thank you for this well thought out article. However I don’t believe I have ever seen an article written by someone who has not experienced delusion who gets it right. You did not get this one right.

    The “tell” is your example of the woman who jumped from a third story window to ascend to heaven. At the end of the example you decided she was, in fact, suicidal because the “tell” was that she could have ascended from the ground so if she failed…

    Your conclusion is simplistic at best and does not take into account the fixed BELIEFS of a delusional person. I have been delusional. I have had persecutory delusions and delusions of grandeur.

    During delusions of grandeur, which it sounds like this woman was experiencing, there is a “fix” or explanation for everything to keep believing what we believe. She jumped from the third floor because she thought she would go up. No one would have been able to convince her that she would go down, so why start on the ground.? In her mind she could fly. She may not have believed she had wings like a bird and would flap them until she reached heaven. But she BELIEVED she would ascend. End of story. No discussion needed. No second guessing herself. No proof needed.

    BELIEF is the key here. Her mind probably never even considered starting on the ground, and if it did she probably felt that starting on the third floor would get her there faster. I believe your conclusion about her suicidality is dead wrong.

    Additionally, there is a very strong element of secrecy to delusions. To disclose one’s “powers” or “mission”, especially to people in positions of authority, like a psychiatrist is tantamount to watering down one’s “powers” or compromising one’s “mission,” or betraying the entity or entities we BELIEVE are guiding us.

    Those of us who have been delusional know right from wrong but more often than not our BELIEFS trump right or wrong type thinking.

    It wasn’t until my altered reality was drugged away did I realize how little I told anyone about what my complex system of BELIEFS were, even during a 30 hospital stay where I would be questioned by doctors everyday. Part of my BELIEF system was that I could not tell, but I could lie to protect my beliefs, mission, powers or entities.

    I don’t believe you or anyone who hasn’t experienced delusions even scratches the surface of what’s going on in the mind of a delusional person. We create whole worlds with all the justifications necessary to uphold those worlds.

    • You are making an excellent point here Fouette! I found myself perplexed by Roberts comments as well. In supporting my niece through a psychotic episode, she made a number of attempts to fly out our 13th floor balcony doors. Fortunatly, we were there to block her path. She was expecting that she would fly away, to another dimension, or reality. In my own delusion of 1996, I never told anyone that I was on a sacred mission, that I was being tested by God. My own attempt at “suicide” was to turn out the lights in a hotel ballroom I was in (naked). Although it hardly sounds dangerous, I was quite scared to hit the light switch, but i did it anyways. I was arrested shortly afterwards. Both of us are meds free, and psychiaty free today!

  3. …I want to add, people in a delusional do often write of their delusions and sometimes even send them to others but this is often part of the “mission” so it fits with our beliefs. While delusional I often felt writing something rather than saying it would maintain a higher level of secrecy. This is probably because many delusional people believe their surroundings are bugged or their minds can be read. Writing somehow adds a,layer of protection.

    My comments are not to insult you at all, but to explain how little non delusional people know about what is going on in the head of a delusional person.

    • Sorry I didn’t comment sooner….
      I’ve heard that Ernest Hemingway complained to his shrink that the F.B.I. was tapping his phone lines.
      His shrink called him “crazy”/delusional, and wrote him some serious Rx scripts….
      Shortly after, Hemingway blew his brains out.
      After he died, it came out that Hemingway was only one of many Americans who were spied on by the F.B.I., and had their phones tapped….
      Then came Cointelpro, but that’s another true story….
      And, yes, it *IS* possible to remotely read thoughts using technology.
      Just look how cell phones work….
      And so-called “thought insertion” HAS been tested for advertising….
      I’m talking DARPA-level stuff, and it’s for real.
      Mk-Ultra went DARK in the early 1960’s….
      ….etc., etc., etc.,

  4. We should not forget that this guy was taking Klonapin and Zoloft at the time of his murder spree. Not saying that was the whole story, but these drugs may well have put him over the edge. At a minimum, they certainly did not make him safer.

    Another psychiatric success story!

    —- Steve

    • Klonapin often lowers a person’s inhibitions and creates mania. Pair that with the damned Zoloft and you’ve got a really bad situation looking for a place to happen. Psychiatrists love to pair the damned two toxic drugs together, saying that they work “better” in combination. These two drugs certainly didn’t help his situation at all.

      • And of course Klonapin’s product information sheet says that it should never be prescribed for more than two consecutive weeks due to its addictive nature. But psychiatrists and other doctors systematically ignore this and benzos are very commonly given for years. It’s a sick, sick system.

        • For well over 15 years, the ONLY Rx drug I was on was clonazepam.(“Klonopin”). The Rx was for .5mgs’, 3x day. That’s 1.5 mgs/day.
          And it was written “PRN”. This was from a very good general practitioner/M.D. So, a single 30-day supply lasted 2, 3, 4, or more months. And, I was abruptly terminated by a new, quack doc.
          No big deal…. Months later, another quack at the same clinic/hospital put me BACK on clonazepam at .5mgs 2X/day.
          A few months later, yet ANOTHER quack took me off it, AGAIN….
          However bad Rx drugs might be, the INSANITY, STUPIDITY, and dogmatic knee-jerking and supplicating to the Pharma God of the medical community is truly sickening….
          And *THEY* think that *I* am crazy!?….HAH!…..
          Thank God for Yoga, Tai Chi, and Genesis, Chap. 1, V 29!….
          And don’t touch my coffee&cigs, either!….
          ……………just sayin’…………………..

  5. Thank goodness James Holmes didn’t get the death penalty, because now taxpayers can be spared paying millions of dollars in legal appeal fees. It’s cheaper to warehouse someone for life.

    And too bad that the United States is the one modern country dumb enough to let anyone buy and carry around automatic weapons. People do kill people, but people with automatic guns kill people faster, more efficiently and in greater numbers.

    The clock is now ticking until the next American mass murder happens a few weeks or months from now.

  6. By concluding that “committing a crime that is sufficiently horrific one deserves to forfeit one’s life” aren’t you putting us in the very same position that a person does when he/she takes another’s life? We are deciding that killing someone is justified…something I find by definition violent, insane, uncivilized and horribly flawed as a response, especially by a rational government. Murder, whether carried out by a desperate individual or the state is an act of insanity and always a result of individual and/or societal illness…

  7. A true system of justice would base its actions on the need to protect innocent people. Revenge (“punishment”) should not be considered as a factor in determining one’s disposition or sentence for committing a violent criminal act. The threat to society is almost always eliminated by incarceration, so there is no possible justification for state execution in the so-called criminal justice system.

    • “Folie a deux verses bouffee delirante”….????…. Huh?….
      OK, I get it. It’s just common, everyday psychobabble and gobbledygook –
      a francaise….
      Yeah, I actually *WATCHED* the video…. Typical BBC hype and over-
      dramatizing….and very light on facts & in-depth background….
      Puff-n-fluff for the masses…. And a *single*case*, with twin sisters.
      My, how original.
      Thanks for the distraction. At least I didn’t waste my time talking to a quack shrink….

  8. My problem with the insanity defense is that it officially robs those of us with major mental illness of human responsibility. Most of us are victims of violence and have every reason to lash out. We have every reason to punish a society that did not hear our screams, but still, most of us are very gentle people. I do not believe in the death penalty but I do believe that James Holmes should face the full penalty of the law. He knew what he did was wrong. He destroyed hundreds of lives in a few short minutes of carnage.

    The insanity defense paints every one of us with a major mental illness as ready to go for blood and mayhem at any moment.

    It steals our humanity and our free will.

    It makes us look like bloodthirsty and deranged children.

    • “We have every reason to punish a society that did not hear our screams, but still, most of us are very gentle people.”

      I find this to be really poignant, and I agree. Even the most gentle, non-violent people can be pushed to the brink in such an unsafe and betraying, oppressive society. But then, what to do with that rage, which I find to be reasonable and human, when we awaken to the real and direct cause of our chronic distress, all that betrayal and neglect? That’s a crossroads in healing.

    • When we are effected by a Mental Illness such as Mania or Schizo Affective it robs us of any responsibility because our minds are not working as they should. Most of us are not victims of violence but a biological disorder that we have no control over. It’s an illness many fail to understand and with this horror it’s surprising just how many large amounts of people have no idea how those with a mental illness suffer or how the actual illness effects the mind. Loss of girlfriend, move to another state are all trigger factors that do not bring on rage, but utter mental frustration because what’s going on in our heads we cannot stop. There are many that suffer with Harm OCD, homicidal thoughts in need of cognitive behavioral therapy. Many of us have done things wrong due to the illness when otherwise we know right from wrong, but our decision making is lost. The video world can act as a screen play that separates us from the two worlds which sets us on a mission which leads to not separating the two. Fantasy movies become far more realistic and music also has a type of psychic effect. Unless you have the same brain while under the effects of an illness, it would be difficult to comprehend. Not all of us are effected in the same ways. Not all suffer from the harmful dangerous side effects of SSRI medication. Some of us are badly effected by social anxiety. Some HSPs find it being hard being in crowds because of all the negative energy they pick up. None of us have to have a plan in place before getting detention orders to a mental hospital. None of us have thoughts of harming anyone with detention orders but are always detained incase there is a threat of harm to others or to the self. A severe mental illness most likely gives us free will to do wrong because we are not in our right minds, that’s when we need interference to get us the right help and that’s often being admitted to a mental hospital until we are better.