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James Holmes's attorneys, prosecutors argue about the word "cooperate"

A hearing today in the case of accused Aurora theater shooter James Holmes dealt with one question: If Holmes, who has indicated that he'd like to plead not guilty by reason of insanity, does not cooperate with a court-ordered mental examination, should he be allowed to call his own expert witnesses to testify about what his attorneys say is his mental illness at the sentencing hearing in his death-penalty case?

Holmes's defense attorneys say yes. Prosecutors, however, see the issue a little bit differently.

The state's insanity defense law says that a defendant who enters such a plea must cooperate with a court-ordered evaluation. If the defendant does not, he cannot call his own expert witnesses during the sentencing phase to present so-called mitigating evidence about his mental condition. Here's the relevant section of C.R.S. 16-8-106:

The defendant shall cooperate with psychiatrists and other personnel conducting any examination ordered by the court.... If the defendant does not cooperate...the court shall not allow the defendant to call any psychiatrist or other expert witness to provide evidence at the defendant's trial concerning the defendant's mental condition including, but not limited to, providing evidence on the issue of insanity or at any sentencing hearing.

The purpose of the law, prosecutor Rich Orman argued today, is "to enhance the truth-finding." If Holmes refuses to cooperate with a court-ordered evaluation, "there's no other way we can assess the reliability and frankly, the relevance of that testimony," he added, referring to testimony provided by Holmes's own experts.

"The state of Colorado says you can put on that evidence!" Orman said animatedly. "All you need to do is cooperate." As to what that means, Orman said the word "cooperate" is common and doesn't warrant the additional explanation requested by Holmes's attorneys. Orman said an online list of common words shows that "cooperate" is more frequently used than the words "pillow," "hardware," "cook" and "annually."

But Holmes's attorneys argued that the U.S. Supreme Court has ruled time and again that courts cannot limit a defendant's ability to present mitigating evidence. "It is unconstitutional," said attorney Kristen Nelson.

Holmes's defense attorneys must understand the meaning of the word "cooperate" -- and the consequences if their client does not cooperate with a court-ordered examination -- in order to advise him on how to proceed, Nelson argued. She gave an example: If attorneys tell Holmes to answer all questions but not to submit to a narcoanalytic exam, otherwise known as "truth serum," is that non-cooperative?

"We should not be required to guess," she said.

Prosecutors are seeking the death penalty against Holmes. At a capital sentencing hearing, jurors must weigh mitigating factors presented by the defense against aggravating factors presented by the prosecution. To sentence someone to death, the jury must find that the aggravating factors outweigh the mitigating factors.

Prosecutor Orman further argued that the issue before the judge today was not yet ripe for ruling. In other words, he said it's too soon to be debating whether Holmes should be allowed to call his own experts at sentencing if he doesn't cooperate with state evaluators. If the evaluators allege that Holmes was non-cooperative, Orman said the defense is entitled to a hearing at which the judge will decide if that was the case.

Judge Carlos Samour did not rule at today's hearing. Instead, he'll issue a written ruling before May 31, when Holmes is due back in court. On that day, Samour will advise Holmes about the consequences of an insanity plea -- and, the defense hopes, clear up its questions around cooperation. After Samour advises Holmes, he said he'll decide whether to accept Holmes's insanity plea. A prior judge entered a not-guilty plea on Holmes's behalf after his attorneys said they were not yet ready to enter a plea.

More from our Aurora Theater Shooting archives: "James Holmes's attorneys offer not guilty by insanity plea, judge isn't ready to accept it."

Follow me on Twitter @MelanieAsmar or e-mail me at melanie.asmar@westword.com


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