In defense of Colorado killer James Holmes

James Holmes’ case most likely will end sooner than a trial, as it appears the only likelihood that he will not be given the death sentence is if he pleads insanity.  Photo: James Holmes mugshot

WASHINGTON, D.C., January 12. 2013 - James Holmes’ trial is coming up soon. 

On July 20th, 2012, Holmes murdered 12 people and injured 70 more in a movie theater in Aurora, Colorado.  He is charged with 166 felony counts including murder and attempted murder.  He is guilty.  No question.  No niceties from the press about calling him “the alleged gunman.”  How can the public defender’s office defend this monster?  What type of defense can he expect?

The simple answer to the first question is that his defender is assuring that the criminal justice system works.   The “game” is supposed to be rock solid regardless of who the players are or their alleged crimes.

During the first five years of my law practice, in order to get myself familiar with courtroom procedures and to become comfortable talking in court, I joined the ranks of attorneys on the court’s “appointed” list, and I agreed to represent people charged with crimes for state scheduled fees.  These accused persons’ incomes were less than a prescribed minimum, and they thus qualified for court-appointed legal counsel.

Prior to becoming an attorney I felt criminals deserved what they got, and I believed it would be difficult, indeed, to try to represent someone who was clearly guilty.  My experiences in criminal court changed my views a bit. 

The law provides that you are innocent until proven guilty beyond a reasonable doubt.  This standard, beyond a reasonable doubt, is the highest standard in the law, because the consequences of the finding can mean taking away someone’s liberty, or their life.  If the state, through its police, through their ability to find and provide evidence, and through it prosecutors’ skills, experience, and knowledge, cannot prove the guilt of an accused, the accused must be found not guilty.  If the system were to be otherwise, we would resemble Nazi Germany.  We cannot, as a just society, allow a process that eliminates the right to a fair trial, which includes a defense that puts the state to the task of proving the guilty of the accused. 

How can anyone, an attorney assigned to representing James Holmes, for example, represent someone they know to be guilty? They can do so because they are affirming a bigger and more grand principle that assures that if and when you or I are charged, erroneously, with a crime, not matter what the outward appearances or proof might seem to be, we will have representation by an attorney whose job is to make sure the state proves we are, in fact, guilty.

James Holmes is clearly guilty.  He is entitled to a defense that forces the state to prove his guilt.  Should we otherwise simply lock him up now, forever, or send him to the executioner immediately?  One of these consequences certainly will follow, after the appropriate and desirable criminal process runs its course.  Or Holmes may be committed to a mental health facility if he convinces the Court he was insane at the time of the offenses.

Prosecutors want to win.  I am sorry if I burst your bubble by telling you that sometimes they do not play fairly, by the rules, and that sometimes their actions are outright illegal.  If you were being prosecuted, my guess is you would want an attorney representing you to find out if the prosecution was doing everything properly.

I represented a young man during my court-appointed days who was charged with drunk driving.  Following his arrest, his blood was tested to determine his level of his intoxication.  After completing the testing, the lab technician prepared a document called a Certificate of Analysis.  It attested to the accuracy of the procedures employed and the test results.  As a prudent defense attorney, I obtained a copy of this certificate before my client’s trial.  A review of the certificate revealed that the lab technician’s license had expired prior to the testing. The certificate was no good and would not be available as evidence at trial for this technical reason.  At trial, to my surprise, the prosecutor produced the same certificate with the exception that the tech’s license expiration date had been altered, showing that the lab technician’s license expiration date was months away. 

Is that fair? Was my client guilty of driving while intoxicated?  Clearly.  Was he convicted? It saddened me, and it outraged me, that the prosecution was doing something illegal to try to get a conviction.  If they had brought the original, unaltered certificate to trial as evidence, I would have objected, the certificate would have been out (so at this point there would have been no evidence of intoxication) and the prosecutor then would have called the police officer to testify about his observations of my client at the scene to try to prove intoxication.  Likely the police officer’s testimony would have been enough to allow the judge to convict. Because of the prosecutor’s actions, however, I allowed the prosecutor to put the altered certificate into evidence with a request to examine the document. I asked if that was all of their evidence, the prosecutor said yes, they rested their case, and I then showed the judge the original certificate and moved that the one given to the court be ruled inadmissible.  The judge had no choice, and a few words for the prosecutor.

The prosecutor claimed ignorance of the alteration.  Astoundingly, no investigation of the altered certificate was ordered.

The reality is that the lab technician’s skill, knowledge, ability to draw blood, test it, record the results, etc. were all probably well above standards they needed to be in order for him to do that work.  The license being active assures these things. But what if there were classes the tech needed to take that changed some of this process for the lab tech’s work, and he did not take those classes thus did not know things, and his license could not be renewed until he took the classes? Then, maybe, his affirmation on the certificate would be meaningless, because he truly may not have been qualified.  Do we want unqualified people sending us to jail?

My client, guilty as hell, got off on a technicality.  Justice, in my opinion, was served.  The justice I refer to is that viewed from a societal standpoint.  I would not want to be convicted if a lab technician who truly did not meet quality standards was the basis for that conviction.  My job was to make sure the state did its job correctly, which included crossing all of the “t’s” and dotting all of the “i’s.”  The issue of guilt in any individual case is not as important as the greater picture requiring fairness and compliance with laws set up to assure that fairness.  Many are familiar with the saying that it is the law’s purpose to assure that no innocent man is punished, even if it means 100 guilty men go free.

James Holmes’ case most likely will end sooner than a trial, as it appears the only likelihood that he will not be given the death sentence is if he pleads insanity.  I would expect that his defense attorney will ultimately enter this plea for him, and thereafter, as the sanity examinations are conducted and then reviewed, I expect the court will determine that Holmes did not know right from wrong, that it will be declared that at the time he was insane, and he will be committed to a mental health facility until some doctor determines he is sane and not a danger.  Otherwise, absent an insanity resolution of his case, Holmes may expect a finding of guilt despite the efforts of his public defender attorney.  In this event, I hope his attorney does a good job in making the state prove guilty beyond a reasonable doubt.  Holmes’ attorney, when it is all done, will feel good about himself knowing that he made the state oblige the law, and that having done that, the correct result, as determined by a jury, was reached.

If the attorney fails to provide the best possible defense, the attorney in effect acts as the prosecutor, the judge, and the jury. 

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show, the featured legal analyst for America’s Radio News Network, heard in 165 markets nationwide, and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.



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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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