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James Holmes's court filing about guilty-plea offer a publicity ploy, prosecution says

Update by Melanie Asmar: Was James Holmes's court filing stating that he was willing to plead guilty to avoid the death penalty a publicity stunt?

That's the allegation being made by prosecutors in a response to Holmes's filing (on view below). The filing, they wrote, "appears to be an attempt to deliberately prejudice the public, witnesses and victims against the People." Furthermore, they say there is not "an actual or unqualified 'offer' to plead guilty" on the table, and that a plea bargain would be "extremely unlikely."

On Wednesday, attorneys for accused Aurora theater shooter Holmes filed a "Notice in Response to This Court's Scheduling Order" (on view below) stating that prior to Holmes's arraignment on March 12, he "made an offer to the prosecution to resolve this case by pleading guilty and spending the rest of his life in prison, without any opportunity for parole."

The notice went on to say that prosecutors had not accepted the offer because they may decide to seek the death penalty. "Consequently, it appears the only impediment to a resolution of this case would be if the prosecution chooses to seek the death penalty," Holmes's lawyers wrote. "If the prosecution elects not to pursue the death penalty, then it is Mr. Holmes's position that this case could be resolved on April 1."

In their response, prosecutors disagreed with those assertions. While they acknowledged that Holmes's lawyers have stated that their client is "interested in being offered the opportunity to plead guilty," they say his lawyers have also refused to "provide specific access to information" that would allow prosecutors "to fully assess the Defendant and his alleged acts for purposes of determining a just outcome in this case."

"There is not -- and never has been -- an actual or unqualified 'offer' to plead guilty without response by the People as has been misstated in the Notice," they wrote.

In addition, prosecutors called a plea bargain in the case "extremely unlikely based on the present information available to the prosecution," something they say they've "repeatedly" told Holmes's lawyers.

Prosecutors also argue it was "grossly improper" for the defense to mention a possible plea bargain in its notice at all. They say they "question whether this language was included...in good faith, or whether it was a calculated attempt to improperly inject the issue of the purported defense 'offer' into the public discourse regarding the case."

They note that a "search on Google News at 8:30 a.m. on March 28, 2013 shows that over a hundred news sources" -- including Westword -- "have published stories indicating that the defendant is willing to plead guilty.

"The only conclusion that an objective reader would reach by reading the stories...is that the defendant knows that he is guilty, the defense attorneys know that he is guilty, and that both of them know that he was not criminally insane," prosecutors wrote.

Furthermore, they wrote that they believe State Public Defender Doug Wilson violated the gag order in the case by speaking to the Associated Press about Holmes's lawyers' filing. An AP story paraphrases remarks by Wilson, including that prosecutors haven't responded to the defense's offer to plead guilty and that he didn't know whether prosecutors had relayed the offer to victims as required by state law.

In their response, prosecutors note that the law says they must consult with victims if they are contemplating making a plea offer; it does not require prosecutors to consult victims if the defense makes such an offer -- unless prosecutors intend to take them up on it. "Obviously that has not occurred in this case," they wrote.

Prosecutors say Wilson's statement is especially offensive because they "have provided victim resources and access unmatched in any case known in the history of Colorado, and probably the history of the United States." Victims and family members of victims -- of which there are more than one thousand -- have "access to a full-time prosecutor who is an expert in the Victims' Rights Amendment," they add.

Before a hearing on Monday at which Arapahoe County District Attorney George Brauchler has said he will announce whether he's seeking the death penalty against Holmes, the DA himself "will have had direct contact and consulted with every victim related to the twelve murdered victims to specifically discuss their input on the possible dispositions of this case, including life without the possibility of parole and death," prosecutors wrote.

Prosecutors asked the judge to dismiss a motion filed by Holmes's lawyers seeking sanctions against whomever "leaked" information to a Fox News reporter back in July about the contents of a notebook Holmes mailed to a psychiatrist. The defense has subpoenaed that reporter, Jana Winter, to testify about her sources -- and that hearing is also scheduled to take place Monday. Though lawyers for Winters asked to postpone it, Arapahoe County District Court Judge William Sylvester ruled that the hearing will take place as scheduled. (That ruling is also on view below.)

"Both the improper Notice and Doug Wilson's improper comments to the Associated Press demonstrate that the defense does not come to the court with clean hands," prosecutors wrote. For the defense to ask for sanctions against the law enforcement sources who allegedly spoke to Winters while speaking to the AP themselves "would make a mockery of both the law and this Court's orders," they added.

But Sylvester denied prosecutors' request to drop the Fox News issue. In an order (on view below), he wrote that "the mere fact that a new or additional violation exists does not vindicate a previous violation."

Continue to read the court documents referenced above, as well as our original coverage of Holmes's filing about the possible plea deal.  

Defense's Notice in Response to This Court's Scheduling Order

Prosecutors' Response to Defense's Notice

Order Re: Jana Winter Subpoena

Order Re April 1 Hearing

Continue for our original coverage of Holmes's notice.  

Original post by Michael Roberts: A just-released document in the Aurora theater shooting case reveals accused gunman James Holmes is willing to plead guilty to killing twelve people and injuring seventy others at a July 20 screening of The Dark Knight Rises if prosecutors agree not to seek the death penalty. The filing makes clear this offer has been on the table for a while, but has not yet been accepted by district attorney George Brauchler. If Brauchler agrees, however, Holmes's attorneys say the case could be resolved as soon as April 1.

Note that the April 1 hearing is already scheduled to take place. At it, Brauchler is expected to announce whether he will seek the death penalty against Holmes. Also important for context: Judge William Sylvester entered a not-guilty plea on Holmes's behalf at a hearing earlier this month, after a request for additional delays from the suspect's attorneys was rejected.

Here's a photo of the document, entitled "Notice in Response to This Court's Scheduling Order." It was obtained a short time ago by Westword reporter Melanie Asmar; only physical copies are being made available to the press at this time:

James Holmes's court filing about guilty-plea offer a publicity ploy, prosecution says

Also included below is the primary text from the document. But the notice begins like so:

Prior to arraignment, Mr. Holmes made an offer to the prosecution to resolve this case by pleading guilty and spending the rest of his life in prison, without any opportunity for parole. As previously stated in court, counsel for Mr. Holmes are still exploring a mental-health defense, and counsel will vigorously present and argue any and all appropriate defenses at a trial or sentencing proceeding, as necessary. Nevertheless, Mr. Holmes is currently willing to resolve the case to bring the proceedings to a speedy and definite conclusion for all involved.

Brauchler and company have not signed on to this deal, though, as made clear by the next section of the document:

The prosecution at this time has not accepted that offer because it may choose to pursue the death penalty. Consequently, it appears the only impediment to a resolution of this case would be if the prosecution chooses to seek the death penalty. If the prosecution elects not to pursue the death penalty, then it is Mr. Holmes's position that this case could be resolved on April 1.

Continue for more about James Holmes's willingness to plead guilty in the Aurora theater shooting.  

Another portion of the document.
Another portion of the document.

If the prosecution insists on pursuing the death penalty, Holmes's attorneys write, they will need more time to prepare a case. They also argue that the trial itself will take more than four weeks, citing as examples the prosecution of Sir Mario Owens and Robert Ray, who are currently on Colorado's death row. The defense attorneys point out that the Owens and Ray matters were infinitely less complex than the one involving the attack on the Aurora Century theater.

Is a guilty plea Holmes's only way to avoid a death sentence? While a number of his defenders, who are commonly referred to by the term "Holmies," float conspiracy theories and proclaim at least the possibility of his innocence, most legal experts regard the evidence against him as overwhelming.

Holmes was arrested outside theater wearing ballistic gear of the sort seen by a great many witnesses who survived the gunfire, and evidence in his apartment and online shows he obtained weaponry and ammunition of the sort used to such devastating effect. And that's only the tip of an evidentiary iceberg.

For these reasons, Holmes's best defense appeared to be the insanity plea -- an approach that is seldom successful. With that in mind, the portion of the document that explores likely defense actions should the prosecution insist on pursuing the death penalty seems calculated to show how much simpler it would be for Brauchler to accept the offer and lock Holmes away for the rest of his natural life.

Here's the main text from the document:

"Notice in Response to This Court's Scheduling Order

"James Holmes provides the following notice

"Prior to arraignment, Mr. Holmes made an offer to the prosecution to resolve this case by pleading guilty and spending the rest of his life in prison, without any opportunity for parole. As previously stated in court, counsel for Mr. Holmes are still exploring a mental-health defense, and counsel will vigorously present and argue any and all appropriate defenses at a trial or sentencing proceeding, as necessary. Nevertheless, Mr. Holmes is currently willing to resolve the case to bring the proceedings to a speedy and definite conclusion for all involved.

"The prosecution at this time has not accepted that offer because it may choose to pursue the death penalty. Consequently, it appears the only impediment to a resolution of this case would be if the prosecution chooses to seek the death penalty. If the prosecution elects not to pursue the death penalty, then it is Mr. Holmes's position that this case could be resolved on April 1.

"If, however, the prosecution elects to pursue the death penalty, Mr. Holmes submits the following scheduling suggestions for consideration by the court and prosecution. In the recent capital cases of People v. Sir Mario Owens, People v. Robert Ray and People v. Josiah Sher, the court and parties created a schedule of motions issues to be addressed by category on approximately a monthly basis. Mr. Holmes proposes that motions in this case be categorized as follows:

a. Discovery/access to evidence issues

b. Housekeeping/procedural motions

c. Challenges to the charging documents

d. Suppression issues

e. Motions pertaining to expert testimony/scientific evidence

f. Motions pertaining to jury selection

g. Substantive and procedural motions related to the sentencing hearing and the death penalty

h. Evidentiary motions/motions in limine

i. Miscellaneous motions

"The defense proposes litigating Suppression Issues and Challenges to the Charging Document during the first set of motions hearings.

"Thereafter, the defense suggests that the court consider motions pertaining to expert testimony/scientific evidence, motions pertaining to jury selection, substantive and procedural motions related to the sentencing hearing and the death penalty and, finally, evidentiary motions and motions in limine. The remaining categories of motions, such as discovery or housekeeping motions, would be addressed on an as-needed basis.

"The current trial date would obviously need to be vacated. The pre-trial litigation related to a capital case cannot be completed by the current trial date. In addition, the current trial is scheduled for only four weeks. The recent capital jury trials of Sir Mario Owens, Robert Ray and David Bueno all took closer to four months, and none of those cases involved near as many charged counts or victims as this case, nor did they involve possible mental-health defenses. Mr. Holmes would be willing to waive speedy trial while pre-trial motions are initially being litigated, and the parties and the Court could assess setting a trial date at a later time."

More from our Aurora Theater Shooting archive: "James Holmes: Not-guilty plea entered in Aurora theater shooting."


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