What happens when accused killers plead insanity? | News | Denver | Denver Westword | The Leading Independent News Source in Denver, Colorado


What happens when accused killers plead insanity?

James Holmes is a killer. His defense attorneys have admitted as much. A year after he was accused of opening fire in a sold-out Aurora movie theater, leaving twelve people dead and seventy wounded, they wrote in a court motion that "the evidence revealed thus far in the case supports...
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James Holmes is a killer.

His defense attorneys have admitted as much. A year after he was accused of opening fire in a sold-out Aurora movie theater, leaving twelve people dead and seventy wounded, they wrote in a court motion that "the evidence revealed thus far in the case supports the defense's position that Mr. Holmes suffers from a severe mental illness and was in the throes of a psychotic episode when he committed the acts that resulted in the tragic loss of life and injuries sustained by moviegoers on July 20, 2012."

Holmes has since pleaded not guilty by reason of insanity. So the question that a judge or a jury will have to answer is not whether he committed the crimes. It's whether he was "so diseased or defective in mind" at the time that he didn't know wrong from right.

The insanity defense is rare in Colorado. In the fifteen years between 1998 and 2013, that plea was entered in just 580 felony cases, out of hundreds of thousands, according to information provided by the Colorado Judicial Branch. (That number may, in fact, be higher, because public records only show cases that are not sealed.) Of those 580 cases, 62 were first-degree-murder cases. And of those 62, the defendant was found to be not guilty by reason of insanity in only 25.

Some of those people killed their children. Some murdered their parents. Others took the lives of complete strangers. But though the details of each murder are grisly in their own way, those 25 cases have one thing in common: None of them resulted in a jury trial. Instead, a judge examined the evidence, found the defendant not guilty by reason of insanity and sentenced him or her to the state mental hospital in Pueblo.

Westword took a closer look at four of those cases and discovered another similarity: Every mental evaluation done on the defendants concluded that they were insane at the time of the crime. In an insanity case, the evaluations are key. Even if all of the physical evidence in the case points to the defendant, and even if the defendant confesses to the murder, if the doctors agree that the defendant was insane when he did it, there's a good chance he'll be found not guilty by reason of insanity.

In Colorado, the burden is on the prosecution to prove beyond a reasonable doubt that a defendant is sane and, therefore, guilty. But if all of the mental evaluations conclude that the defendant was insane, prosecutors can do little to dispute that.

"When the guy is clearly mentally ill, the law is pretty clear on what we need to do, whether we like that law or not," says Geoff Heim, a former deputy district attorney who prosecuted a Manitou Springs man for killing his seven-year-old daughter in 2000. The man told police that his daughter was possessed and that he'd killed the devil. Six months later, after psychiatrists examined him and concluded that he was insane when he committed the murder, a judge found him not guilty by reason of insanity.

But the Holmes case won't be resolved that easily. It's already been a year and a half since the shooting, and a jury trial scheduled to begin this month has been postponed. That's because prosecutors have asked for a second mental evaluation of Holmes, who was examined by a psychiatrist at the Colorado Mental Health Institute at Pueblo last summer. The results of that examination haven't been publicly released, but prosecutors say the doctor's report contains "numerous deficiencies." They've also accused the doctor of having "an unfair bias" and have asked the judge to order Holmes to undergo further evaluation by two out-of-state doctors, one of whom consulted on the cases of Unabomber Ted Kaczynski and serial killer Jeffrey Dahmer.

A hearing on whether to grant the prosecution's request began on January 27 and lasted four days. But it was closed to the public and the press. Judge Carlos Samour has indicated that he'll rule on the request in the coming weeks.

Still, legal experts say it's safe to assume that the results of the first sanity evaluation weren't what prosecutors were hoping for. And what is that, exactly? At an April 2013 hearing in the case, Arapahoe County District Attorney George Brauchler declared that, "For James Eagan Holmes, justice is death."

And the State of Colorado does not sentence insane people to die.


The cops who first spotted Holmes outside the Century 16 theater in Aurora after the attack testified at a preliminary hearing last year that he was "just standing there." They quickly realized he might be their suspect and ordered him to the ground at gunpoint. Holmes didn't resist, they said. "It was like there weren't normal emotional responses to anything," one Aurora police officer testified. "He seemed very detached from it all."

Later, at the police station, Holmes pulled a staple from the table and tried to stick it in an electrical socket, a detective testified. He also played with a Styrofoam water cup and pretended that the paper bags that police placed on his hands to preserve gunshot residue were puppets, moving them as if they were talking.

Our examination of previous insanity cases found that it's often obvious right from the beginning — before a defendant has even pleaded not guilty by reason of insanity — that the person who committed the crime has serious mental-health issues.

That was true for Robert Dunn, the father who killed his young daughter. The crime scene was so horrific and Dunn's behavior so bizarre that the prosecutors who worked the case still remember it with a sense of sickening awe, even though the crime took place in June 2000, more than thirteen years ago. Heim, now a private defense attorney in Colorado Springs, was one of the prosecutors who responded to the initial call. He went first to the police station in Manitou, where Dunn was being held.

"I've never seen anybody who looked quite like he looked at that time," Heim says. "He was clearly out of it. His eyes were bugging out of his head. There was a total disconnect with what was going on around him."

Earlier that evening, the 51-year-old Dunn, who owned a liquor store in town, tried to impale his seven-year-old daughter, Aaren, with a crowbar that he'd recently begun keeping for protection. Then he repeatedly stabbed her in the neck and chest with two kitchen knives and tried to rip her head off. "He damn near decapitated Aaren," Heim recalls. "Her head was hanging on by one or two tendons."

Dunn's eleven-year-old daughter, Nadine, escaped the house and ran to a nearby convenience store for help. "My dad is killing my sister!" she yelled. A local carpenter and his girlfriend who were walking into the store heeded Nadine's cries and followed her to the house, where they found Dunn hovering over Aaren in the kitchen. "I put my hand over the wound on her neck and gave her CPR, but the look in her eyes. She was gone, man," the man told the Colorado Springs Gazette. "She was with God."

When the cops arrived, they found Dunn lying in the grass in the back yard. "The devil is here. I killed the devil," he shouted. "She was possessed. I killed the devil."

At the police station, Dunn was "urinating on himself and bewildered and disoriented," recalls John Newsome, a former prosecutor who was Heim's partner on the case. Heim remembers that there was a birthday cake at the police station, and as they waited to speak with Dunn, Newsome dipped his finger in the frosting. As he was about to lick it off, he looked over at the holding cell to find Dunn peering at him through the tiny window in the door, "like Jack Nicholson in The Shining."

After Dunn threatened to hurt himself in jail, the sheriff's office transferred him to the Colorado Mental Health Institute at Pueblo. Dunn's public defender, Deborah Grohs, saw the transfer as a stroke of luck; it just so happened that a psychiatrist she'd hired to evaluate another defendant was at the hospital when Dunn arrived and was able to see him, too. Grohs, now a district court judge in the special mental-health court in Colorado Springs, says "to have it happen so quickly to the time of the offense to get the best snapshot of what was going on with Dunn at the time of the crime" was "a true blessing."

The psychiatrist's report was clear: Dunn was insane when he killed Aaren. The state doctors who evaluated him at the hospital agreed with the psychiatrist hired by the defense. "There was not a single doc that said he was sane," Heim recalls. "It was a clear diagnosis of insanity."

With that evidence in hand, the district attorneys decided against a jury trial. But they did want a public airing of the facts, so Heim, Newsome and Grohs agreed to have a trial in front of a judge. "We didn't want to be the ones who said, 'This dude is insane,'" Heim says. "It was a horrific event, and we wanted to have a community determination rather than just a closed-door, DA and defense attorney agree, handshake, he goes down to the state hospital. We wanted to make sure the community knew what was going on."

The proceeding took place in December 2000. It was quick: No cops took the stand to describe the murder scene, and no medical examiner was called to give gruesome testimony about Aaren's wounds, the lawyers recall. The psychiatrists were the star witnesses. A staff psychiatrist from the Colorado Mental Health Institute at Pueblo testified that Dunn thought the devil was trying to take over Manitou Springs and was using Aaren to do so. Afterward, the psychiatrist said, Dunn showed no remorse.

"I thought they were going to pin a medal on me for saving the town of Manitou Springs," Dunn told the psychiatrist, according to news reports.

The judge agreed that Dunn was insane and sentenced him to the state hospital — but not for life, as a murderer would have been. When a defendant is found not guilty by reason of insanity, Colorado law dictates that he be sentenced to the Colorado Mental Health Institute at Pueblo until doctors determine it's safe for him to leave. If the district attorney objects to the doctors' findings, a judge has the final say.

Court records show that Dunn has been granted a series of privileges over the years, and Grohs says it's her understanding that he is now living in the community while remaining under the care of hospital staff.

"He's doing well," she says, "because he received the proper treatment that he should have been getting all along."

Insanity" has two definitions under Colorado law. The first is someone who was "so diseased or defective in mind at the time" of the crime that he couldn't tell wrong from right. The second is someone who suffers from a "mental disease or defect" that prevented him from "forming the culpable state of mind" to commit the crime. For first-degree murder, that state of mind is "after deliberation and with intent" to kill. So in other words, if a person is so mentally ill that they couldn't have planned the murder or intended to kill anyone, they might meet the definition for insanity.

Private defense attorney Ed Farry, whose law firm is located in Colorado Springs, has a theory about when the insanity defense works and when it doesn't. To some extent, he says, the outcome of a case is dependent on the logic of the crime: "When things have explanations, defendants tend to lose. When things are inexplicable, then defendants tend to win. The more the conduct makes sense, the less likely the person is to be found not guilty by reason of insanity, irrespective of what the pointy heads say."

Revenge makes sense, he says. So does anger. A mother killing her infant because God told her it was the only way to save the human race does not. "There's a joke — it's a lawyers' joke — about insanity," Farry says. "The joke suggests the truly insane person is the person who breaks into my house and starts doing my laundry."

But he questions whether it will work for Holmes. What he did "looks much different than a mother killing her child," Farry says. "This is a guy who dresses up in black and goes to the Batman movie and kills people. He's an angry son of a bitch who flunked out of college, and the world hasn't treated him right, and 'I'll show you.' It makes sense. What wouldn't make sense would be to go to the Bambi movie and do it."

Farry has handled several insanity cases, including that of Sean Fitzgerald, who was 36 when he murdered his father in 2008. That crime didn't make any sense.

At about 2 a.m. on a Thursday in November, Fitzgerald walked into his parents' bedroom and stabbed his father, a prominent Colorado Springs orthopedic surgeon, as he lay sleeping. According to news accounts, Fitzgerald's mother woke up and, screaming, pushed Fitzgerald off of his father before calling 911. When the police showed up, Fitzgerald told them, "I did it. I killed my own father in front of my mother."

Before the murder, Fitzgerald was living with his wife and son in Thailand. He'd been growing increasingly paranoid that the government was following him, recalls Brien Cecil, who prosecuted the case for the district attorney's office, and shortly before he returned to Colorado, Fitzgerald was hit by a truck while riding his bike. Cecil says Fitzgerald thought someone was tailing him and rode the wrong way down a street in an attempt to escape. He hit his head, and the injury, coupled with his mental state, prompted his father to travel to Thailand and bring him back to Colorado Springs to get help. On the plane, Fitzgerald was convinced that his fellow passengers were CIA agents.

Back in Colorado Springs, Fitzgerald's dad took him to a neurologist, who didn't diagnose Fitzgerald with a mental illness but noted that he was suffering from paranoia and should undergo further testing. He prescribed some medication, including sleeping pills. That night, after taking the medication, Fitzgerald killed his father.

"There was no dispute between father and son. No argument, no grudges," Farry says. "None of that stuff ever existed, so it was an act that was otherwise inexplicable."

Fitzgerald reportedly told detectives that he thought his father was Satan. Family members suspected it was the medication that caused him to kill. Fitzgerald's statements, the family's theories and the paranoid way he acted when Farry first met him prompted the lawyer to hire a psychiatrist. When the psychiatrist concluded that Fitzgerald was insane, Farry wasn't surprised.

The state doctor who evaluated Fitzgerald agreed. But Cecil says prosecutors wanted to make sure. Fitzgerald had been calm after the murder, holding out his wrists for the police to handcuff him before they'd even asked, he says. And at the station, he had invoked his Miranda rights. To check that Fitzgerald wasn't faking his mental illness, the prosecution hired a third expert to review the first two reports. That expert didn't talk to Fitzgerald but concurred after reading the other doctors' conclusions.

"We had three separate professionals telling us that at the time of the offense, he was insane," Cecil says. "We had no evidence to the contrary except that he was calm afterward." Prosecutors could have argued that the mental evaluations were wrong and that Fitzgerald was sane and had killed his father for no reason. But Fitzgerald didn't seem like the type, Cecil says, and so the DA's office agreed to forgo a jury trial and hold a truncated trial before a judge. In September 2009, the judge found that Fitzgerald was not guilty by reason of insanity and sentenced him to the state hospital.


Holmes pleaded not guilty by reason of insanity on June 4, 2013.

By law, once a defendant pleads insanity, the judge must order him to undergo a mental examination to determine whether he was insane when he committed the crime. In a death-penalty case, the defendant will also be examined to determine if his mental illness is so great that it precludes him from being executed.

If the lawyers or the judge request it, a defendant can also be examined to determine whether he's competent to proceed. Competency is different than sanity. Rather than a measure of what the defendant was thinking at the time of the crime, it's a measure of whether he's now able to understand the charges against him and help his attorneys.

The first mental evaluation of Holmes was completed by early September 2013, three months after his plea. While its results are still secret, Judge Samour has revealed one conclusion: Holmes is competent to stand trial.

A defendant's competency can be restored with drugs and treatment — and it's widely speculated that Holmes is heavily medicated. When he first appeared in court three days after the shooting, he seemed dazed and looked as if he were struggling to stay awake. Experts consulted by every news outlet from CNN to Entertainment Tonight offered the opinion that Holmes was taking serious prescription drugs. He's often seemed unemotive in subsequent hearings, not speaking to his attorneys. Sometimes he clasps his hands in his lap and steeples his fingers.

If Holmes was indeed restored to competency with treatment, it wouldn't be the first time such a thing happened in an insanity case. In fact, it happened in the case of another young man accused of a brutal and seemingly senseless crime.

Joe Valentine Romero was just seventeen when he was arrested in 2003 for the gory stabbing death of George Turner, the 91-year-old former mayor of Walsenburg, a small town in southern Colorado. Investigators determined that in the summer of 2002, someone entered Turner's house as he was taking an afternoon nap, slit his throat and stabbed him more than a dozen times. Turner's body was found in a closet.

At first, the police were stymied. Nothing of value had been taken from Turner's house, there were no signs of forcible entry and there seemed to be no motive for anyone to kill the frail old man. Former prosecutor Cathy Mullens remembers that investigators chased down several leads before a local police detective suggested taking a closer look at Joey Romero. He belonged to a group of teenagers who hung out at a house down the alley from Turner, and the detective knew Romero to be a withdrawn kid who walked around town listening to music on his headphones. His favorite band, Mullens recalls, was the horrorcore hip-hop duo Insane Clown Posse.

"They talk an awful lot about killing people, stabbing people and decapitation," she says. "It's really dark, and it's very loud, and Joey listened to it incessantly."

The detective told Mullens and the other investigators that she'd run into Romero a few days after Turner's murder and that his demeanor had changed; he seemed more confident, and he even waved at her, which he'd never done before. A few days after that, however, Romero suffered a mental-health episode and was briefly hospitalized.

Several months later, DNA tests conducted on the crime scene revealed that blood found in Turner's sink contained a mixture of his blood and Romero's blood.

"When they focused on him, he made a full confession," recalls Romero's public defender, Les Downs, now a private defense attorney in Trinidad. Given the facts of the case, Downs's first move was to hire a psychiatrist to evaluate Romero. But the doctor discovered a problem, one that Downs already suspected: Romero was so mentally ill that he didn't understand what was happening or that he'd been charged with murder. "He had a flat affect and was very unemotive," Downs recalls. "He was not all there."

Downs said he was reluctant to raise the issue of his client's competency because he knew it would result in Romero's being sent to the state hospital for an evaluation by the doctors there. He was worried that the state psychiatrists would ask Romero about the facts of the case, which they are allowed to do. At trial, prosecutors can use new evidence obtained during a mental examination to rebut evidence presented by the defense.

But the psychiatrist that Downs hired believed it "was such an open-and-shut case that it wouldn't hurt," Downs says. He was right: When the case finally went to trial before a judge in 2005, Romero was found not guilty by reason of insanity and sentenced to the state hospital.

Mullens, who retired four years ago, wasn't happy with the outcome — and neither was Turner's family. "All of the doctors agreed he was insane," Mullens says. "I couldn't argue with it." But, she adds, "I don't like our law. I think that a person who commits a crime like this should be held responsible."


The Holmes case appears to be headed for a jury trial. Judge Samour has laid out plans to summon 6,000 prospective jurors, and both sides have submitted questions to be included on a jury questionnaire. The jury box in Samour's courtroom was recently expanded to fit 24 chairs — seating enough for twelve jurors and twelve alternates.

Whether to try an insanity case before a jury is a tricky decision for the attorneys involved, says former Denver District Court judge Christina Habas. In her nine years on the bench, she oversaw two first-degree-murder insanity cases. One resulted in a jury trial and the other didn't. The case that wound up before a jury ended with a guilty verdict and a life sentence for the defendant.

"Many times, just because of the pure depravity of the act, jurors have difficulty with a [not guilty by reason of insanity] plea," says Habas, who is now a civil trial lawyer with the Denver firm Keating Wagner Polidori and Free. (Habas is not directly involved in the criminal case against Holmes, but she is representing several victims in a civil lawsuit against the owner of the Aurora theater.) That's especially true given the disparity in punishment, she adds. "The stakes are very high when you have the difference between a lifetime in prison and potential life at the hospital."

The two cases that Habas oversaw both involved nineteen-year-olds killing complete strangers for seemingly no reason. But the similarities end there.

The first case began in March 2004, when Amber Torrez was arrested for murdering an Ethiopian cab driver named Masfin Gezahan. According to news accounts, when the cops arrived at the scene, they found Torrez nearby; she had blood on her clothes and was trying to hide a knife in her jacket pocket. A month and a half later, she picked up a second murder charge in the killing of John Hand, the founder of Colorado Free University, who had been murdered the day before Gezahan.

Police suspected the crimes were linked because of the way the victims died: Hand was stabbed thirty times and Gezahan was stabbed 39 times. When investigators found Torrez's blood in Hand's apartment and on the sidewalk — and realized that she'd used his credit card at a convenience store — she was charged with his murder, too.

Early on, Torrez asked the judge for permission to fire her public defender and skip straight to sentencing. Instead, she was ordered to undergo a competency evaluation. Torrez told the psychiatrist performing the evaluation that she was an assassin hired by the U.S. government to lead a band of 700 killers called Shadow Angel Industries, according to news accounts. She believed the murders of Hand and Gezahan were sanctioned by the government.

Although Torrez suffered from delusions, Habas found that she understood what was going on and was competent to proceed. Throughout the case, Torrez repeatedly told Habas that she wanted to plead guilty and receive two life sentences. "I started every court hearing by saying, 'We can't do that today,'" Habas recalls. Torrez's public defenders thought a plea of not guilty by reason of insanity was more appropriate, and to help Habas decide whether the attorneys could enter an insanity plea against their client's wishes, she ordered Torrez to undergo a second evaluation to determine if she was insane when she fatally stabbed the two men.

A psychiatrist at the state hospital found that Torrez had indeed been insane, and Habas entered a plea of not guilty by reason of insanity. A second sanity assessment returned the same result. Torrez told the psychiatrists that she was on a mission to kill robbers, rapists, prostitutes and johns. She said she murdered Hand because he tried to pay her for sex and Gezahan because he picked her up in his cab and asked if she wanted to "make some money." Torrez reportedly told the doctors that she understood that mainstream society would condemn her actions but felt she had "a higher calling."

It was that last statement that gave veteran prosecutor Bonnie Benedetti pause. Although all of the psychiatrists said Torrez was insane, Benedetti thought otherwise. Since there were no facts in dispute — just opinions as to whether Torrez was insane — Benedetti agreed to forgo a jury trial and hold a trial before Habas instead. At that trial in August 2006, "I argued that she was sane," Benedetti says. "The reason I did is because she was able to say, 'Society may not think I was right but I did.' She was able to distinguish that her behavior, under regular standards, was wrong."

Habas disagreed. She found Torrez insane and sentenced her to the state hospital.

But two years later, Benedetti was once again in Habas's courtroom prosecuting a first-degree-murder insanity case — one that ended much differently. The defendant, nineteen-year-old Ahmad Clewis-Green, was accused of killing a prostitute.

He told the police that he met Esperanza Soledad Pardue at a park in October 2008, and that she agreed to follow him to his downtown apartment and have sex for $10. Afterward, when she asked for the money, Clewis-Green beat her to death with a lead pipe. At some point, he wrote the phrases "I use this girl to awake" and "blood dragon" on Pardue's body in marker and then wrapped her body in a plastic shower curtain and stuffed it in a barrel. Clewis-Green used his skateboard to wheel the barrel to an alley a few blocks from his apartment, where it was found by a maintenance worker.

Clewis-Green confessed the murder to his mother, who didn't take him seriously, according to an appeal (currently pending) that Clewis-Green filed in 2012. The teenager had a long history of mental illness, starting when he was very young. By the time of the murder, he'd been hospitalized ten times; according to the appeal, he sometimes heard voices telling him to kill and saw "movies playing in his head." Clewis-Green's mother thought the story of the prostitute was another of his delusions.

But when she saw news reports of a dead woman found in a barrel, she called the police and told them her son did it. Clewis-Green offered a full confession, reportedly telling the police that he decided to murder a person after he killed his cat and liked the way it felt. Habas remembers that Clewis-Green told the cops he "went hunting."

Upon learning of his extensive mental-health history — he'd been diagnosed with bipolar disorder, antisocial personality disorder and paranoia — his public defender, Phelicia Kossie-Butler, was convinced that he was not guilty by reason of insanity. "It was very clear that something was not right," says Kossie-Butler, now a civil attorney.

But two evaluations done by state psychiatrists concluded that while Clewis-Green was mentally ill, he wasn't insane when he killed Pardue. Instead, the psychiatrists opined that Clewis-Green set out to murder somebody that day. "There were things about his behavior that were calculated," Benedetti says, including that he disposed of the body and cleaned his apartment with bleach after the murder.

However, Kossie-Butler doesn't think the state psychiatrists did their homework. One admitted that he didn't even watch Clewis-Green's taped confession, in which the teenager vacillated between speaking softly, sobbing and laughing. The video, Kossie-Butler says, is "horrific. He's articulate enough that you can tell that he is tormented." And several things he told the police didn't check out, including that he had a roommate named "Grumple." He also changed his story, giving the cops different descriptions of the weapons he used to kill both his cat and Pardue.

"The state hospital, it's a bureaucracy," Kossie-Butler says. "I'm sure the psychiatrists are overrun, but it's really not a good system. The doctor who testified said, 'No, I didn't need to look at any of [his medical history]. I talked to him for a couple hours, and that's it.'"

So Kossie-Butler hired a psychiatrist of her own. But by that time, she says, more than a year had passed since Clewis-Green was arrested, and the doctor was unable to say for sure whether he had been insane when he killed Pardue. Given Clewis-Green's history, however, the psychiatrist told the defense team that it was a definite possibility.

Prosecutors are often skeptical of defense experts who say a defendant was insane — especially when they're hired after the state psychiatrist has found the opposite. "It's a very rare case that there's not a defense expert that they can find to reach an opinion that helps them," says Henry Cooper, a Denver chief deputy district attorney who recently prosecuted a man accused of killing a sixteen-year-old girl and then chopping up her body in an effort to hide the crime. The man, Edward Timothy Romero, was found guilty. "They can talk to numerous doctors, and if the doctors all say the defendant is sane, we don't hear about that. Maybe that sixth or seventh doctor says he's insane — that's the one they use."

In the Clewis-Green case, his public defenders insisted on a trial before a jury. Kossie-Butler says she prefers a jury to a judge because she thinks jurors, who have not heard all of the pretrial motions, are more impartial than a judge who has.

At his trial in July 2010, his attorneys emphasized his long record of mental illness and bizarre behavior. But "it came down to a battle of the experts," Kossie-Butler recalls.

In the end, she believes that something one of those experts said may have unduly influenced the jury. According to the appeal, which is being handled by a different attorney, the jurors asked one of the psychiatrists who testified for the prosecution if "insanity" could be cured at the state hospital with medication. The doctor said that although he didn't have the statistics in front of him, "I would say easily 85 percent of the people that are committed there like that do ultimately get discharged back in the community."

The jury found Clewis-Green sane and guilty. He was sentenced to life in prison. Afterward, some of the jurors spoke with Kossie-Butler. "In talking with the jury, it came down to, 'He's so young. We don't want him to ever get out,'" she says.


If Holmes is found to be sane and guilty, and the judge finds that his mental illness does not preclude him from being executed, the court will hold a second phase of the trial to determine whether he'll be sentenced to death or to life in prison. If he's found not guilty by reason of insanity, he'll be sent to the Colorado Mental Health Institute at Pueblo.

There are currently 123 patients at the state hospital who were committed because they were found not guilty by reason of insanity, according to the Colorado Department of Human Services. Those patients have been there since their admission or most recent readmission for an average of 8.6 years.

And it's likely that most of them committed serious crimes. While any defendant can plead insanity, legal experts say it's usually reserved for those accused of crimes that carry long prison sentences. "There's an old saying in my line of work: You have to be insane to plead insanity," says Denver defense attorney Phil Cherner. In other words, because a sentence to the state hospital is indefinite, a defendant charged with a low-level crime might be better off pleading guilty and doing his time, Cherner says, than taking his chances on an insanity defense.

But it's also true that many patients end up leaving the hospital — although the number is not as high as 85 percent. Since July 1, 1995, the Colorado Department of Human Services reports, 59 percent of all patients who were committed to the state hospital after being found not guilty by reason of insanity have been released, either outright or as outpatients. The average time they spent at the hospital was 4.9 years.

The percentage is slightly lower — 51 percent — when it comes to patients who were found not guilty by reason of insanity of first-degree murder, the department says. The average time those patients spent at the hospital was 7.3 years.

But those numbers can be misleading, says Dr. Karen Fukutaki, a psychiatrist who has consulted on many insanity cases in Colorado. Fukutaki even goes so far as to call the statistics "inflammatory." She believes the numbers are skewed downward by patients such as the mother who had no history of mental illness before postpartum psychosis caused her to kill her children. That mother was released less than four years later.

However, Fukutaki says it's also true that the state hospital has a limited number of beds and "has to move people because there are more crimes being committed."

Fukutaki would know. She first worked at the state hospital in 1988. After medical school, the budding psychiatrist took an assignment in the maximum-security unit with patients she says were considered the state's most violent and disordered. She left in 1989 to help set up community mental-health centers in Denver and was then hired by the state Department of Corrections to improve its psychiatric care. She returned to Pueblo for a short stint before starting her own private practice in Denver.

Fukutaki has been regularly evaluating insanity defendants since 1988. She says she's more often hired by the defense these days, though she does court-ordered evaluations, too. Once she's retained by a defense attorney, she reviews the police reports and reads the witness statements. If the defendant has a mental-health history and the attorney has the records, she reviews those, as well. Then she visits the person in jail. Her goal is simple: "I ask them what happened.... I usually start a week or 24 hours out. I want them to walk through their entire day — what they were doing, what they were thinking, why they did what they did — because that gives me a framework."

She also asks about substance use, medical problems and any medication the defendant was taking. Sometimes she'll speak with the defendant's family and friends about whether they were acting strangely before the crime.

More often than not, she has to tell the defense attorney that, in her opinion, the defendant wasn't insane when he committed the crime. But that doesn't mean he's mentally healthy; a defendant can be both sane and mentally ill. Fukutaki uses an example to explain the difference: "You could have a schizophrenic man who was hearing the voice of God saying, 'If you don't shoot your mother, [you'll] be taken by the devil and subjected to hell.' And if he didn't do this, the world would come to an abrupt end. So the man shoots his mother. That would seriously raise in my mind the possibility that that defendant would meet the criteria to be found legally insane.

"If that same schizophrenic man says...'I don't have any money and I have to pay rent, so I'm going to go rob 7-Eleven,' well, he has schizophrenia, but the crime he committed was goal-oriented and he used rational thinking: I'm committing robbery because I want money." In that case, she says, she'd likely find that the defendant was sane.

Some defendants, Fukutaki says, are baffled by their own behavior, especially once they begin getting treatment. "They'll say, 'I was thinking this but it makes no sense, so I couldn't have been thinking that,'" she says. In those cases, Fukutaki says, she focuses on what the defendant was thinking at the time of the crime, not what he thinks now.

Fukutaki knows that many people think insanity defendants are just trying to avoid prison, but she doesn't believe that's true. Furthermore, she thinks the public is better protected if the criminally insane end up in a place where mental-health treatment is mandatory and where their release date is dependent on their psychiatric progress — which is certainly not the case in prison, she says.

But she also realizes that the insanity defense can be a hard pill for the community to swallow, especially if the crime was particularly heinous — a description that easily fits the Holmes case. "Really, it's a battle of public perception," Fukutaki says. "In a case like this, there is a lot of emotion attached."

Or, as former judge Habas puts it, "The difference between what is evil and what is insane can sometimes be a very thin line."

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