James Holmes: Insanity Plea Subject to Truth and Drug Testing

James Holmes, the alleged Aurora Theater shooter, will enter a plea tomorrow. He is expected to plead not guilty by reason of insanity. The defense filed a lot of motions objecting to the procedure that will be followed, but the Judge denied them (Order here.)

Today the court issued its proposed advisement form for entering plea of not guilty by reason of insanity. You can read it here.

Of note, is paragraph 13, which will require Holmes, if asked, to submit to a "narcoanalytic interview." [More...]

13. It shall also be permissible to conduct a narcoanalytic interview of you with such drugs as are medically appropriate, and to subject you to polygraph examination. In any trial or hearing on the issue of your sanity or eligibility for release and in any sentencing hearing held pursuant to C.R.S. § 18-1.3-1201, the physicians and other personnel conducting the examination may testify to the results of any such procedures and your statements and reactions insofar as these entered into the formation of their opinions as to your mental condition both at the time of the commission of the alleged offense(s) and at the present time. Authority: C.R.S. § 16-8- 106(3)(b).

The defense objection (available here):

Mr. Holmes has argued that the use of statements involuntarily compelled through a narcoanalytic interview violates due process and, in any capital proceeding, the prohibition against cruel and unusual punishment. Mr.Holmes has also argued that admission of the results of a polygraph examination against a defendant who pleads not guilty by reason of insanity is unconstitutional as the Colorado Supreme Court has recognized that the results of polygraph examinations are unreliable and inadmissible in all other contexts. Admission of any such results or statements against Mr. Holmes would violate due process and, in a capital case, the right against cruel and unusual punishment. U.S. Const. amends. V, VIII, XIV; Colo. Const. art. II, sees. 20, 25.

Although this Court acknowledged these arguments at p.8 of its order, it only ruled that the admission of such evidence did not violate the right against self-incrimination. See p.9 of Order. It did not address the due process issue of voluntariness or the unconstitutional use of such an interview as evidence in support of a death sentence.

Prosecutors have not yet filed a notice of their intent to seek the death penalty, but it is widely expected they will do so.

All of the case pleadings since January are available here.

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    Holmes Better Off Dead? (1.00 / 1) (#6)
    by jginnane on Tue Mar 12, 2013 at 06:11:10 AM EST
    Re: Donald from Hawaii's last comment --

    Is it a kindness to Holmes, if he's truly so grossly insane, to "put him away, but don't put him down"-- ?  At what point can we presume that this tormented man is "better off" living with the demons of his own mind?

    Yes, we are not the ones who should be to judge.  But if there's no hope for remediation of Holmes' psychosis, and if the only "positive" result that could be considered would be that he could live with the "sane" full knowledge of his crimes, then we are forced to look at the larger picture:

    What is the value to our society to keep this defective creature alive, incarcerated, to live out the rest of his natural life -- even if he is cured?  We are talking perhaps fifty years, in round numbers, at a present-day cost of one million dollars a year, sure to escalate.  Can we afford this?  Does this help him, or does it help us?

    You might want to be careful about proposing (5.00 / 2) (#8)
    by MO Blue on Tue Mar 12, 2013 at 07:52:58 AM EST
    eliminating those who others deem defective and without value to society. You never know what criteria will be used for this designation. One day people who promote eliminating the mentally ill might be deemed defective and of little value to society.

    There it is (5.00 / 2) (#9)
    by sj on Tue Mar 12, 2013 at 08:45:41 AM EST
    In black and white:
    What is the value to our society to keep this defective creature alive
    The proposal to eliminate a "defective creature" because he is of no value to "society".  And because, you know, he costs too much.

    What a repellent argument.


    "A present-day cost of $1,000,000" (5.00 / 1) (#11)
    by Yman on Tue Mar 12, 2013 at 09:38:10 AM EST
    ... a year."

    Setting aside your "defective creature" comment, where do you get this number?

    Even factoring in indirect costs, the average cost of incarceration in Colorado is $30,374.


    I am Guessing... (none / 0) (#20)
    by ScottW714 on Tue Mar 12, 2013 at 01:48:00 PM EST
    ...but that a million is the ballpark figure used as the estimated cost of housing a death row prisoner before execution.  LINK  LINK  LINK

    Even more shocking:

    Some supporters of the referendum point to a 2011 study co-authored by Arthur Alarcón, a federal appellate judge for the Ninth Circuit in Los Angeles, which found California had spent more than $4 billion on capital punishment since it was reinstated in 1978--about $308 million for each of the 13 executions since then. The referendum calls for devoting $100 million in budget savings over the next 3½ years into investigations of unsolved rape and murder cases.

    Housing is only one aspect of the cost, the additional cost of a capital trial and the appeals that follow are as costly, if not more than the actual housing.


    Except, jginnane was ... (none / 0) (#21)
    by Yman on Tue Mar 12, 2013 at 02:37:24 PM EST
    ... talking about the cost of keeping him imprisoned for life:

    What is the value to our society to keep this defective creature alive, incarcerated, to live out the rest of his natural life -- even if he is cured?  We are talking perhaps fifty years, in round numbers, at a present-day cost of one million dollars a year, sure to escalate.

    Moreover, as you pointed out, the cost of putting someone to death is far greater than imprisonment, so if cost is his concern, he would be arguing against himself.


    Right (none / 0) (#24)
    by ScottW714 on Wed Mar 13, 2013 at 09:12:04 AM EST
    I just saw the million dollar number and was thinking it's not coincidental.   Then I got off track after looking for some links.

    Grow Up.. (5.00 / 2) (#12)
    by ScottW714 on Tue Mar 12, 2013 at 09:56:55 AM EST
    ...first off who has said anything about demons ?

    Second off, it is well established that trying to execute someone is infinitely more costly than imprisoning them.  If you are concerned about costs, you would never champion an execution.

    This is the kind of moronic and heartless rationalization that people used when caging their retarded cousins under the porch or in the attic.  Talking about other human beings with such callousness leads me to believe you are defective at some level, and you know some idiot said about defective people...

    I don't care one way or another, Holmes will never taste freedom and he did the crime.  But I will never believe that it's in the best interest of a society to commit the same crime they are condemning people for, murder.  Nor is it in our best interest to allow a chosen few to decide and carry out that legalized crime against humanity.  The blood thirsty will never be satisfied, killing 1000 'defect creatures' won't change that.


    How can this be legal? (none / 0) (#1)
    by caseyOR on Mon Mar 11, 2013 at 10:11:12 PM EST
    I've never heard of a defendant having to submit to questioning under "truth serum." Has this happened before?

    On further review of the (none / 0) (#3)
    by Jeralyn on Mon Mar 11, 2013 at 10:57:53 PM EST
    pleadings, the court order didn't say what drugs could be used other than medically appropriate ones. It said he could be subjected to a polygraph, and be involuntarily medicated.

    The AP reports   narco-analysis typically involves truth-testing drugs, but Here's an old CIA article  that addresses the difference between narco-analysis used for interrogation purposes vs. psychiatric purposes.

    The use of so-called "truth" drugs in police work is similar to the accepted psychiatric practice of narco-analysis; the difference in the two procedures lies in their different objectives. The police investigator is concerned with empirical truth that may be used against the suspect, and therefore almost solely with probative truth: the usefulness of the suspect's revelations depends ultimately on their acceptance in evidence by a court of law. The psychiatrist, on the other hand, using the same "truth" drugs in diagnosis and treatment of the mentally ill, is primarily concerned with psychological truth or psychological reality rather than empirical fact. A patient's aberrations are reality for him at the time they occur, and an accurate account of these fantasies and delusions, rather than reliable recollection of past events, can be the key to recovery.

    I can't imagine they would shoot him up with scopalamine or a truth drug and immediately conduct a polygraph. There's not too much research about its use in sanity exams. In the CIA article (which is from 1993), the author writes:

    J. M. MacDonald, who as a psychiatrist for the District Courts of Denver has had extensive experience with narcoanalysis, says that drug interrogation is of doubtful value in obtaining confessions to crimes. Criminal suspects under the influence of barbiturates may deliberately withhold information, persist in giving untruthful answers, or falsely confess to crimes they did not commit. The psychopathic personality, in particular, appears to resist successfully the influence of drugs.

    MacDonald concludes that a person who gives false information prior to receiving drugs is likely to give false information also under narcosis, that the drugs are of little value for revealing deceptions, and that they are more effective in releasing unconsciously repressed material than in evoking consciously suppressed information.

    I have never heard of this... (none / 0) (#15)
    by bmaz on Tue Mar 12, 2013 at 11:28:06 AM EST
    ...at least to the extent suggested may be contemplated by the pleadings, directly or by inference. Is there precedence for it?

    Yesterday, Sylvester ruled (none / 0) (#18)
    by sarcastic unnamed one on Tue Mar 12, 2013 at 11:37:24 AM EST
    Yesterday, Sylvester ruled that a not guilty by insanity plea would allow for a court-ordered mental evaluation, in which "truth serum" may be used, according to CBS News. A mixture of sodium amytal and pentothal, used to lower inhibitions so that psychologists might get a more accurate evaluation of a patient, has been employed for decades in the United States.

    I saw the report (none / 0) (#22)
    by bmaz on Tue Mar 12, 2013 at 04:15:53 PM EST
    I've still never heard of it in quite this context.

    polygraph? (none / 0) (#2)
    by womanwarrior on Mon Mar 11, 2013 at 10:52:21 PM EST
    who in their right mind thinks a polygraph is anything more than total junk science?  Who is this judge?  So, can they do an interlocutory appeal on any of this, Colorado lawyers?

    i dont think that is true (none / 0) (#10)
    by nyjets on Tue Mar 12, 2013 at 09:07:54 AM EST
    It is true that a polygraph is not 100 perecent accurate and some people can beat it. Hence why a polygraph is not used in courts as evidence.
    However it is a little bit better than junk science. It can be a useful tool in some circumstances.

    Sure... (none / 0) (#14)
    by ScottW714 on Tue Mar 12, 2013 at 10:29:39 AM EST
    In the 1998 Supreme Court case, United States v. Scheffer, the majority stated that "There is simply no consensus that polygraph evidence is reliable: The scientific community and the state and federal courts are extremely polarized on the matter."  LINK

    In 2005 the 11th Circuit Court of Appeals stated that "polygraphy did not enjoy general acceptance from the scientific community". LINK

    A 1997 survey of 421 psychologists estimated the test's average accuracy at about 61%, a little better than chance.  LINK

    61% accuracy means that statistically speaking, it will only vary from the probability of a coin 1 of 10 tosses.  The other nine will share the coin's equal probability of heads/tails truth/lie.


    Is polygraph evidence admissible (none / 0) (#4)
    by oculus on Mon Mar 11, 2013 at 11:54:07 PM EST
    at trial in CO state court?

    Apparently not: (none / 0) (#13)
    by oculus on Tue Mar 12, 2013 at 09:58:02 AM EST
    I'm beyond caring for James Holmes. (none / 0) (#5)
    by Donald from Hawaii on Tue Mar 12, 2013 at 03:20:00 AM EST
    But that said, I hope the court entertains the possibility that the young man was insane at the time of the shootings. Truly, you'd have to be off your rocker to do what he's accused of doing. I see no point in seeking the death penalty against him. Put him away, but don't put him down. We're supposed to be better than that.

    that is not necessarity true (none / 0) (#7)
    by nyjets on Tue Mar 12, 2013 at 07:49:49 AM EST
    There are people who are capable of doing what he is accused of doing and still being sane. Look at it this way, there are some people who choose to do good and some people who choose to do evil. One is not necessarily crazier that the other.

    A judge on Tuesday entered a not guilty plea for James Holmes, after his attorneys said they were not ready to respond to charges that he opened fire on a Colorado theater, killing 12 people and injuring 70 more, according to the Denver Post.

    The plea, entered by Judge William Sylvester at Holmes' arraignment, was unexpected after rising speculation that the suspect would plead not guilty by insanity. His lawyers had repeatedly brought his mental health into question in previous hearings. The Denver Post notes that Holmes could still change his plea later.

    Prosecutors say plan to announce (none / 0) (#17)
    by sarcastic unnamed one on Tue Mar 12, 2013 at 11:36:08 AM EST
    Prosecutors say plan to announce whether they'll seek the death penalty at an April 1 hearing.

    Alleged shooter? (none / 0) (#19)
    by lawstudent on Tue Mar 12, 2013 at 12:51:45 PM EST
    Curious why you refer to him as the "alleged" shooter?  Is he not the admitted shooter (or at least established shooter), even if ultimately found innocent of the crimes charged?

    Take a look at no. 3.04: (none / 0) (#23)
    by oculus on Wed Mar 13, 2013 at 12:20:47 AM EST
    Innocent vs. the shooter is different (none / 0) (#25)
    by lawstudent on Sat Mar 16, 2013 at 08:41:39 AM EST
    I get the presumption of innocence, and he is absolutely entitled to that, but my point is that one can be the established shooter, yet still presumed innocent of the crime charged.  And if the prosecutor doesn't meet his burden then he is not only presumed innocent, but he is IN FACT innocent.  I have no qualms with that as it is what makes our system what it is.  But the presumption, or a finding by a jury, does not make him any less the shooter.  

    For example, George Zimmerman admits he shot and killed Trayvon Martin, but he is still innocent of 2nd degree murder unless the state proves his guilt beyond a reasonable doubt.  But there is no reason to refer to him as the alleged shooter.  


    If the state does not obtain a guilty verdict (none / 0) (#26)
    by oculus on Sat Mar 16, 2013 at 11:07:03 AM EST
    against defendant Zimmerman he will be "not guilty."  Jury doesn't have a choice of "innocent."