Rules for insanity plea are unconstitutional James Holmes’ lawyers say

CENTENNIAL, Colo. –There was another hearing in the Aurora theater massacre case Thursday. It was about determining his constitutional rights since he changed his plea.

James Holmes now says he was insane when he went on a killing rampage inside the Century 16 theaters in July 2012.

His case becomes the first to test Colorado’s sanity statute, which was changed in 1999.

It requires Holmes to cooperate with a court ordered psychiatric evaluation by state doctors.

“And that statute says that if a defendant is not cooperative in the evaluation then the defense can’t call their own psychiatrists and witnesses with regard to sanity or insanity at the trial or at the sentencing phase,” says criminal defense attorney Dan Recht.

But the prosecution is seeking the death penalty. Holmes’ attorneys argue it is “unconstitutional” not to allow him to present his own experts during sentencing in a death penalty case, even if he does not “fully cooperate” with a state psychiatric evaluation.

“The defense legitimately wants to know, ‘Well what is uncooperative, what does that mean?’ If Mr. Holmes politely says to the psychiatrist, ‘I have a fifth amendment right not to talk to you about the alleged incident in the movie theater, I’ll talk to you about everything else,'” Recht says.

But the prosecution says the law is clear and that the word “cooperate” is even clearer. Otherwise anyone could just call up experts at sentencing who say they’re insane and shouldn’t be held responsible for killing people.

“And then does that trigger the defense not being able to call witnesses? Those are big questions,” Recht says.

Defense attorneys want Judge Carlos Samour to decide on their constitutional questions by May 31. That’s when Holmes appears in court again to be advised of the conditions of pleading not guilty by reason of insanity.

The judge will decide whether to accept that plea from Holmes after he is advised.