Aurora Theater Shooting

James Holmes's attorneys considering insanity plea against his will?

Update below: Are attorneys for accused theater shooter James Holmes considering entering a plea of not guilty by reason of insanity, or NGRI, against Holmes's will? A court document filed Monday hints as much. "As the Colorado Supreme Court recognized...a defendant's own thoughts, desires and opinions about a plea may be 'a manifestation of mental illness' lacking 'a plausible grounding in reality,'" they wrote. "That is one reason why Colorado's insanity statute provides a mechanism for entering a NGRI plea over the objection of a defendant in some circumstances."

The defense's court filing outlines issues with the so-called advisement that the judge would give to Holmes if he were to plead not guilty by reason of insanity. The advisement explains the ramifications of such a plea, including that Holmes would be required to cooperate with a court-ordered mental examination. If he does not cooperate, the advisement states that he would not be allowed to call his own psychiatrists at trial to present mitigating evidence about his mental condition. Holmes's attorneys have repeatedly stated that the 25-year-old "suffers from a serious mental illness."

Holmes's lawyers have also repeatedly expressed their confusion and objections to certain language in the advisement. In the most recent filing, they note that it requires them to certify that Holmes "expressly asked" them to enter an insanity plea on his behalf.

But in a footnote, they argue that it would be unconstitutional to refuse to allow Holmes to enter "such a plea" unless he signs the advisement "when, by definition, nothing of the sort can be required of defendants for whom the plea is entered against their will."

Last month, Judge William Sylvester -- who has since handed the reins of the case over to Judge Carlos Samour -- entered a not-guilty plea for Holmes over his lawyers' objections. They argued that they weren't ready to enter a plea because they still had questions about, among other things, how a mental evaluation of Holmes could be used against him in a death-penalty proceeding. Defense attorney Daniel King said Holmes's attorneys had retained experts who were working on his behalf and making progress, but hadn't yet completed their tasks. He didn't elaborate, saying, "We can't get into it in open court."

Sylvester noted that the law allows a defendant to change his plea later and said he "certainly would consider" such a move. Since then, Samour has said that the longer Holmes's attorneys wait to switch his plea, the harder it will be to convince him.

Read the defense's most recent court filing below. Also below is the proposed advisement for if Holmes were to plead not guilty by reason of insanity and a second proposed advisement for if Holmes decides to introduce expert opinion regarding his mental condition. Both were recently revised by Samour. And stay tuned for more.

Update: Westword has obtained an affidavit referenced in the defense's filing. It's from attorney Jeffrey Pagliuca, whose expertise lies in criminal law and professional conduct by lawyers. In the document, Pagliuca shares his view that signing the proposed advisement, especially the part called "Acknowledgements and Representations," would be unwise.

"Certifying for the court...that a client appears to fully understand the consequences of entering into an insanity plea and is entering into such a plea knowingly, voluntarily and intelligently creates an ethical conflict because it places an attorney in the untenable position of attesting to a client's mental acuity...while simultaneously arguing as an advocate that the client suffers from a serious mental disease or defect," he writes.

Read Pagliuca's affidavit below the other documents.

Response to Order Regarding Revised Advisements

Order Regarding Revised Advisements

Affidavit of Jeffrey Pagliuca

More from our Aurora Theater Shooting archives: "Aurora theater shooting victims and families create local charity."

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Melanie Asmar is a staff writer for Westword. She joined the paper in 2009 and has won awards for her stories about education, immigration and epic legal battles. Got a tip? She'd love to hear it.
Contact: Melanie Asmar