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Winnipeg Free Press - ONLINE EDITION

Strategy options for Holmes’ lawyers

By: Al Neuharth

Posted: 07/27/2012 3:52 PM

James E. Holmes appears in Arapahoe County District Court, Monday. Holmes is being held on suspicion of first-degree murder, and could also face additional counts of aggravated assault and weapons violations stemming from a mass shooting last Friday in a movie theater in Aurora, Colo., that killed 12 and injured dozens of others. (AP Photo/Denver Post, RJ Sangosti, Pool)

As the case against James Holmes, who police said shot and killed 12 people and wounded dozens more in a Colorado movie theater, advances toward trial, his two court-appointed attorneys face a tough question: Should they try to defend him or just represent him?

Two prominent Colorado attorneys — Tamara Brady and Daniel King — have been assigned to the Holmes case.

Their toughest job is figuring out whether Holmes is capable of assisting his defence team or whether he is nuts and should be sent to a state mental hospital.

If you wonder why a guy like Holmes is entitled to this kind of treatment, you need to be reminded of the Sixth Amendment to the Constitution, ratified in 1791. The Sixth Amendment established this right to defence for anyone accused of a crime: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed." Additionally, the amendment says anyone charged shall have the "assistance of counsel for his defence."

Holmes, a former neuroscience student, allegedly planned the massacre for months, amassing ammunition and weapons and booby-trapping his apartment. But it’s possible his mind resided in his own version of reality, some legal experts say.

Holmes’ lawyers will try as hard as they can to keep the case from going to trial, pursuing instead a plea deal that would ensure he spends life in prison, says prominent Denver defence attorney Dan Recht.

Craig Silverman, former Denver County chief deputy district attorney, says, "If you don’t pursue the death penalty in this case, you may as well throw away the statute."

Marcia Clark, prosecutor at the O.J. Simpson trial and author of new novel Guilt by Degrees says Holmes’ lawyers have two choices.

"Plead guilty to spare him the death penalty, or go to trial with a mental defence. But I predict the mental defence will fail."

"Many have said it’s unfair to give the alleged gunman free, top-notch lawyers," she continued. "But lawyers are guaranteed by the Sixth Amendment, so even suspects like Holmes get the fairest trial possible."

Andrew Cohen is senior legal analyst for CBS News and 60 Minutes and is a national correspondent for The Atlantic magazine.