Colorado Shooter's Urge to Kill Could Set Him Free

A jury will soon decide whether James Holmes is guilty or not guilty by reason of insanity. Last week, one of his victims, Ashley Moser, took the stand in her wheelchair. She is paralyzed from the waist down. She described how she was watching a Batman sequel in a theater when she heard gunshots. She reached to grab the hand of her six-year-old daughter Veronica but was shot in the chest. She was pregnant at the time. The gunshots knocked her on top of Veronica. One of the bullets struck her spine and she could not move off of her daughter. She was crushing her and there was nothing she could do. She didn't know at the time, but her daughter was already dead. Veronica had been shot four times. Later, as doctors worked to save Ashley's life, her unborn child died. Yet, when it came time for the jury to see a picture of Veronica Moser, the judge only let jurors view the six-year-old's innocent, smiling face for three seconds - lest it prejudice the jury. Moser's mom wasn't the only paralyzed victim to testify. Several of the 70 others injured took the stand in wheelchairs. Many of them will never walk again.

This case is a classic example of how the law doesn't comport with morality. It illustrates a confused Judge, trying to balance how the law should operate with the procedural restrictions that currently constrain it. Technically, none of the victims's testimony was relevant. Holmes admitted his guilt. The only real question before the jury is: was Holmes sane or insane at the time of the shootings? The first question we should ask ourselves is how could someone who commits a mass shooting not be insane? But to get more procedural, why would the Judge admit the irrelevant testimony of victims and police officers but then only let the jury see six-year-old Veronica's face for a few seconds? Perhaps we can answer that question by asking another. In a day and age of mass shootings, how can we ignore the tangible effects of such a massacre when deciding someone's guilt? The suffering of the victims should be relevant. A jury should consider the emotional horror that will live with the survivors forever and the insufferable losses the families of the victims will suffer. Yet, we are seeing time and time again, judges and lawyers working to abide by the law and limit or exclude emotional testimony. In the Aaron Hernandez case, Odin Lloyd's mother was instructed by a judge not to cry on the stand when talking about her dead son.

This brings us to the very heart of the Holmes trial. If he was insane at the time of the shootings, he will face no consequences for his actions. Instead, he will get help in the form of mental health treatment, at taxpayers expense. Again, we see the effects of his crimes on society and his victims completely ignored by this result.

There is no justice for the victims of insane mass shooters. The reason for this is that we are still using a legal definition of insanity that originated 172 years ago in Britain. Most state courts decide insanity using the M'Naghten rule. Under the rule, a defendant can be acquitted if a jury finds he or she could not distinguish between right and wrong at the time of the crime due to a mental disease or defect.

The rule has undergone little to no reform since 1843. In a new age of terrorism and mass shootings, it does not work. To understand why, simply look at the case that gave rise to the rule and the cases in which it is now being applied. In 1843, when a British man named Daniel M'Naghten tried to assassinate the Prime Minister, but shot the wrong man, his mistake was attributed to mental illness. At the time, a panel of judges in Britain decided that compassion should be applied to the mentally ill and that it would be immoral to punish someone who lacked the capacity to form the intent to commit a crime. They decided that the legal standard should be, whether a person can distinguish right from wrong. If they cannot, then they should face no criminal responsibility whatsoever.

The M'Naghten rule gained widespread popularity and application in America in the 1980s when John Hinckley attempted to assassinate Ronald Reagan. His attempted murder of the president was motivated by his disturbing obsession with actress Jodie Foster after seeing her in the movie "Taxi." Hinckley was acquitted and deemed not guilty by reason of insanity. He was committed to a mental institution. Shockingly, the Hinckley case has received little to no attention in recent years even though he is on the verge of being set free. Just last month, it emerged that a Judge is deciding whether Hinckley is now sane enough to go live with his mother. Is this the type of result we want to see in America in an age of mass shootings and terrorism?

In the James Holmes case, an estimated twenty doctors are expected to testify for the defense that he was insane at the time of the shootings. His diary entries show confused and irrational scribbling. He believed that killing people would increase his self-worth. Let's suppose he was severely mentally ill and the jury decides he could not tell the difference between right and wrong during the shootings. Should he not be criminally responsible for killing twelve people, crippling and injuring 70 others and destroying innocent people's lives because he had mental problems? Should he be committed to a mental institution and possibly released back into the public one day like Hinckley? What justice does that serve for the victims who will never walk again? What justice does that give to Ashley Moser whose unborn child and six-year-old daughter are gone forever? How can we justify the application of a rule from an 1843 case of a man who murdered the wrong person, to a case where a man spent months planning a calculated attack, compiling weapons, scouting theaters and shooting innocent mothers, fathers, children, brothers and sisters like targets in a video game? Let's apply a slippery slope argument. Will the latest shooter in South Carolina attempt the same defense to justify his racist and seemingly calculated killings during a church service?

There is another extreme paradox in the Holmes case that virtually no one is mentioning in mainstream media. Colorado has expanded the legal definition of insanity to make it even easier to acquit someone who fails the M'Naghten test. Let's suppose the jury finds that Holmes could tell the difference between right and wrong when he committed the shootings. He can still be acquitted if the jury decides that he could not control his impulses to commit wrong-doing. This is called the irresistible impulse test. The evidence strongly favors the latter conclusion, which means Holmes could very well be acquitted. Holmes told a psychiatrist that for most of his life, he has experienced the urge to kill. In social situations, he frequently envisioned himself sawing people's heads off. He said he hoped someone would stop him from committing the crime, but eventually his urges overpowered him. Holmes also told the same psychiatrist that he still experiences strong urges to kill. Yet, the latter statement was deemed prejudicial and the jury will not hear about it. I can't think of a piece of evidence any more relevant for the jury as it decides whether to imprison Holmes, kill him or treat him and potentially release him back into society.

The jury will hear about those urges from his childhood and the urges just before the crime, which could both help Holmes get acquitted. Yet, they will not hear that those urges are still present as they decide whether to set him free. Neither, the M'Naghten rule or the irresistible impulse tests make sense when applied to mass shootings. Both result in treatment and potential freedom for a criminal with no accompanying punishment.

Four states have completely abolished the insanity defense. The majority of states use a modified version of M'Naghten, like Colorado. As juror number 673 in the Holmes trial said in her voir dire: she wishes there was an option for the jury to find someone guilty but insane instead of not guilty by reason of insanity. In fact, a minority of states do offer this option, allowing prison time in addition to mental health treatment. This option should be expanded. The law should also be consistent across every state. Mass shootings should be governed by federal law. As Americans, we send our children to colleges in different states, we travel across state lines on vacation and we have relatives in other states. Mass shootings affect our entire country. It's time for our criminal law to evolve with the times and incorporate morality into the legal process. There should be no get out of jail free card for mass shooters.