If James Holmes pleads not guilty by reason of insanity, prosecutors wanting to prove that he methodically carried out a deadly Colorado movie theater shooting have a difficult task before them: They must prove he is sane.
Unlike other states where the defense needs to prove insanity, prosecutors in Colorado are the ones who have to show that a defendant is sane â€" all without the ability of having their own experts examine Holmes.
"It's burden of proof on steroids," said Marcellus McRae, a former federal prosecutor now in private trial attorney in Los Angeles. "It's totally subjective. It's not like proving somebody pulled the trigger. That's objective."
Whether he pleads guilty by reason of insanity, the case against Holmes promises to focus on his mental health.
A court hearing Thursday will examine his relationship with University of Colorado psychiatrist Lynne Fenton, to whom he mailed a package containing a notebook that reportedly contains violent descriptions of an attack.
His attorneys say Holmes is mentally ill and that he sought help from Fenton at the school, where he was a Ph.D. student, until shortly before the July 20 shooting that killed 12 people and wounded 59 others. Prosecutors allege that Holmes may have been angry at the failure of a once promising academic career.
Insanity is unlike the mental competency argument used for Jared Loughner, who ultimately pleaded guilty in federal court to the 2011 Arizona shooting that killed six people and wounded 13 others, including then-Rep. Gabrielle Giffords.
Mental competency involves whether a defendant is aware of what's happening in court and can assist his or her attorneys with a defense. In Loughner's case, he received treatment, became competent and entered his plea.
In an insanity defense, a defendant is deemed not guilty because he didn't know right from wrong and is therefore "absolved" of the crime, Jefferson County District Attorney Scott Storey said, who recently lost and insanity case.
If Holmes is found sane and goes to trial and is convicted, his attorneys can try to stave off a possible death penalty by arguing he is mentally ill. Prosecutors have yet to decide whether to seek the death penalty.
Authorities have said that Holmes meticulously stockpiled ammunition and other gear and booby-trapped his apartment to kill, suggesting that he knew what he was doing.
With the burden on prosecutors, those details don't matter, prosecutors say.
Insanity cases depend on a court ordered evaluation by state psychiatrists and up to two additional state evaluations requested by defense attorneys or prosecutors and approved by a judge.
In about 40 states and in federal court, the burden of proof is on the defense, which must prove that a client is insane.
Two recent cases illustrate their difficult task.
In October, Bruco Strong Eagle Eastwood was acquitted by reason of insanity of attempted first-degree murder in the wounding of two children outside a Colorado school, a case that garnered national headlines after a math teacher tackled him and stopped the shooting. Eastwood is spending time in a mental hospital.
His case will be reviewed every six months until he's deemed sane and released.
Storey, the prosecutor, said the average stay in a state hospital for homicide is 7.5 years.
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