If alleged "Dark Knight" killer James Holmes faces the death penalty, it could become the largest and most complex case ever undertaken by Colorado’s criminal justice system -- and it’s not even clear who’s going to be running it.
The woman in charge right now is Carol Chambers, arguably the state’s toughest district attorney, with a long, contentious record of trying to send murderers to execution. But term limits will force her out of office in January, long before the Holmes case clears preliminary phases. She will be replaced by one of two men who are running for election in November. Neither of them currently works as a prosecutor.
Whoever wins will be thrust into a case that could consume the 18th Judicial District’s operations for years to come, particularly if the new DA pursues capital punishment for Holmes — a painstaking, politically fraught decision that requires a careful weighing of legal strategy and the wishes of victims’ families.
“This case is going to go very slowly through the system, and it’s going to be a very long time before a decision is made in regard to the death penalty,” said Karen Steinhauser, a former Denver prosecutor who now is a criminal defense attorney. "A good possibility is that it won’t be the current DA who makes that decision."
"I think the case will be an issue in the election – who’s got the experience in terms of understanding all the issues involved in the case," she added. "It’s going to be a huge management of resources issue. Because a death penalty case straps a district attorney’s office.”
The candidates – Republican George Brauchler and Democrat Ethan Feldman – have not given any public statements on the Holmes case.
Chambers hasn’t indicated whether she favors the death penalty against Holmes. But she is widely presumed to support it. She is the only district attorney to have pursued capital punishment in the last five years, including cases against two of the three men who now occupy Colorado’s death row. Both men were held responsible for killing a young couple who witnessed a murder – horrific crimes, but nowhere near the level of what James Holmes is accused of doing.
The third death row inmate, Nathan Dunlap, was convicted of shooting to death four people at an Aurora Chuck E. Cheese's restaurant in 1996.
The case against Holmes is forcing Colorado to confront its ambivalent relationship with the death penalty. The state has not executed anyone since Gary Lee Davis in 1997. In 2009, the state legislature came within one vote of repealing the death penalty.
"This is a state that you could say is conflicted about this," Denver University law professor Sam Kamin said.
The biggest legal obstacle to pursuing the death penalty against Holmes is his mental state. For the next few months, psychiatrists, lawyers, judges and others will debate whether Holmes, 24, understands the charges against him, if he can help his attorneys defend him and if he knew right from wrong when he allegedly stormed into a packed midnight Aug. 20 showing of “The Dark Knight Rises” and opened fire with an array of assault-style weapons while wearing body armor.
Twelve people were killed and 58 injured in the attack, and police said they disabled a booby-trapped apartment that Holmes left behind. Holmes, who authorities said told them he was Batman's nemesis the "Joker," appeared listless at his first court appearance earlier this week. The former doctoral student is expected to be formally charged on Monday.
Even if Holmes is deemed fit to stand trial, and is convicted, it could be difficult for a jury to agree to send a mentally ill man to death row, legal experts say.
“A jury can’t impose a death sentence unless it finds that the aggravating factors outweigh mitigating factors,” Kamin said. “That can include mental illness.”
Steinhauser saw that in the one capital case she pursued during her tenure at the Denver District Attorney's office. It was against a prison inmate who killed a deputy sheriff while getting treated in a hospital. Because the inmate was already serving a life sentence for a prior crime, prosecutors sought the death penalty. But a jury could not agree, and he got another life sentence instead.
"A big part of that was his psychiatric problems," Steinhauser said. "He raped kids and assaulted police officers, but he also had this horrendous psychiatric history and I think there was sympathy (from the jury)."
David Lane, a criminal defense lawyer who has represented dozens of people facing the death penalty, said that based on what he had read and seen, Holmes appears to be suffering from some kind of untreated mental illness. If that turns out to be true, the district attorney's office may decide it doesn't have a strong enough case for execution.
“Everyone says the death penalty is a foregone conclusion, but it’s not,” Lane said.
Just as difficult as the legal considerations is balancing what’s best for the victims and their families. Prosecutors are required to take what they want into account, but even if there were a consensus among victims, prosecutors are not obligated to follow it.
The crucial question is whether the death penalty is the best path to justice.
“For the victims, if we’re talking about the death penalty, there is no ending to this case,” Steinhauser said. “It will be several years before trial, and if the death penalty is found, then we’re talking 10, 11 years before there could be an execution – if there is an execution. People have already been so traumatized, and then they’ll have to spend years and years and years going through the system.”