CRIME
01/10/2013 06:23 pm ET

Aurora Shooting Preliminary Hearing: A 'Public Opinion' Battle

This week's hearing on the Aurora shooting was a legal formality that lawyers turned into a debate about the mind of a man accused of killing 12 and injuring 58 others in a crowded Colorado theater.

Judge William Sylvester is expected to say Friday that James Holmes, the accused shooter, can be tried on 166 counts of murder, attempted murder and weapons charges. Colorado lawyers and legal scholars agree reaching the probable cause threshold is easy, but while Holmes isn't expected to deny the shooting rampage, no one expects him to plead guilty either.

The average preliminary hearing in a murder case typically lasts an hour or two. But the Arapahoe District Attorney's office took two and a half days to put police officers on the stand to testify about the morbid scene found inside the movie theater during a midnight screening of the latest Batman film.

Recordings of panicked 911 calls, including one in which a loud burst of gunfire muffled an audience member's plea to the dispatcher, filled the courtroom

Prosecutors showed photos that Holmes, a 25-year-old graduate school dropout, took of the cinema's layout weeks before the July 20 attack. Cellphone pictures he took of himself posing with a gun and sticking out his tongue hours before the shooting were also unveiled. It was all a taste of the prosecution's argument that Holmes carefully planned the shooting.

But little of that was needed to convince the judge the trial should proceed. With all eyes on the Centennial courthouse, the prosecution took it as an opportunity to shape public opinion of Holmes.

"Both sides are concerned about the jury pool and the publicity," said Denver defense attorney Dan Recht, who's not involved in the case. "[The prosecution] from the get-go wants everyone thinking that this was a cold, calculating murderer. The prosecution put on much more evidence than they would need to show planning and scheming ... This was an attempt to show that this was not some insane guy."

The defense mounted a mild counterattack during cross-examination aimed at highlighting Holmes' mental state. Some testimony suggested that Holmes is severely mentally ill and perhaps insane, in the legal sense of the word.

The arresting officer at the scene said Holmes was heavily perspiring and that his pupils were dilated. Officer Jason Oviatt, who handcuffed him, said Holmes was "very, very relaxed,' and didn't exhibit "normal emotional reactions."

A detective testified that while in custody Holmes used paper bags, designed to keep gun residue on his hands, as puppets. Holmes also played with a cup on the table in front of him.

"Both sides played to the court of public opinion," said Karen Steinhauser, a defense attorney who lectures at the University of Denver Sturn College of Law and is not involved in the case. "I think we saw that with all the questions about how he was acting, his bizarre behavior, his mental state that perhaps [the defense lawyers] want to make sure the public is aware that their client is insane."

Holmes' public defenders threw a curveball when they notified the court they might summon two witnesses to testify during the hearing.

"It's very unusual for the defense to put on evidence," said Mimi Wesson, a professor at the University of Colorado Law School. "Exposing defense evidence to the prosecution loses the advantage of surprise," while having a low chance of victory during this phase.

Calls to the Holmes' attorneys and the district attorney's office seeking comment were not returned.

In the end, the hearing closed Wednesday morning without the defense witnesses.

"The result of this hearing was a foregone conclusion," Recht told The Huffington Post, predicting that Friday's session would be very brief. "Everyone knows that all of these counts will get set for trial."

Despite an earlier ban, the media will be allowed to bring cameras into court Friday, giving the public its first glimpse of Holmes in months.

Assuming Sylvester green-lights the trial, the next step is the arraignment where Holmes enters a plea. If he pleads not guilty by insanity, which is considered a strong possibility, he'll be examined by a state psychiatrist and probably another chosen by his team.

Within 60 days of Holmes' plea, the prosecution must decide if it will seek the death penalty. Only three inmates sit on Colorado's death row, all convicted in the same county of suburban Denver where Holmes will be tried.

The question of Holmes' sanity raises the possibility that a plea deal could be negotiated as in the case of Jared Loughner, the mentally ill shooter who wounded Rep. Gabrielle Giffords and killed six people in a January 2011 shooting in Tuscon, experts said. Loughner was spared the death penalty in exchange for pleading guilty and accepting a life sentence without parole.

The newly inaugurated Arapahoe District Attorney George Brauchler, who took office this month, supports capital punishment.

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