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DENVER (AP) � Attorneys for the suspect in the deadly Colorado 
theater shooting said for the first time that they're 
considering entering a plea of not guilty by reason of insanity 
on behalf of their client.

But they said in court papers made public Friday that they can't 
make their decision about their defense of James Holmes until 
the judge rules on their motion challenging the 
constitutionality of the state's insanity defense law.

The attorneys say the law is unfair to defendants who invoke it 
because it requires the disclosure of potentially incriminating 
information, such as mental health records, while those who 
plainly plead not guilty are not required to turn over any 
evidence.

Prosecutors have not announced whether they will pursue the 
death penalty, but they have 60 days from when a defendant 
enters a plea to do so. Holmes' hearing is March 12.

A legal expert said the maneuvering may be part of a defense 
strategy to make sure prosecutors never get their hands on a 
notebook that was purportedly sent by Holmes to his psychiatrist 
and included descriptions of a possible attack.

The notebook was the subject of court hearings in the months 
after the July shooting. Under state law, the notebook was 
protected because it was part of a doctor-patient relationship 
that Holmes had with the psychiatrist.

"That's why there's a big issue there, there's information that 
the prosecution may not be entitled to unless they plead not 
guilty by reason of insanity," said Karen Steinhauser, a Denver 
criminal defense attorney and law professor who is a former 
prosecutor.

Representatives for the prosecution and the defense didn't 
immediately return phone calls Friday. The judge has ordered 
attorneys not to speak publicly about the case.

Under state law, defendants who plead not guilty by reason of 
insanity must reveal to prosecutors mental health records as 
well as psychiatric evaluations that may include details of the 
crime for which they're accused.

While the law has not been challenged before in cases involving 
the death penalty, determining whether it violates a defendant's 
constitutional right against self-incrimination directly impacts 
their decisions about Holmes' defense, his attorneys argue.

Steinhauser said the defense had to file their motion 
challenging the insanity defense law before the plea is entered 
because they could not raise issues with the statute afterward. 
They could still, however, raises other trial-related issues 
later.

Steinhauser said the judge can rule on the matter, which likely 
will be appealed to higher courts and possibly delay Holmes' 
arraignment.

Holmes' attorneys have said their client is mentally ill and had 
sought the help of a psychiatrist at the University of Colorado, 
Denver, where he was a neuroscience graduate student.

Holmes faces multiple charges of first-degree murder and 
attempted murder in the shootings at an Aurora theater during a 
midnight showing of the latest Batman moving, "The Dark Knight 
Rises."

Holmes in January was ordered to stand trial following 2 1/2 
days of testimony from police and federal agents who provided 
excruciating details about the attack. Holmes had been expected 
to enter a plea following that hearing but, but defense 
attorneys requested a delay, saying they would not be ready 
until March.

Legal experts say there may be few options for Holmes. If, as 
many anticipate, he enters the plea of not guilty by insanity, 
he would undergo lengthy evaluations at a state psychiatric 
hospital before trial.

If the case goes to trial and he's found not guilty by reason of 
insanity, Holmes could conceivably be released from a 
psychiatric facility someday if he is deemed to have recovered, 
but that is considered an unlikely possibility. A guilty plea or 
conviction could mean life in prison or the death penalty.

http://blog.al.com/wire/2013/03/colorado_theater_gunman_may_pl.h
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