One of their worries: If Holmes doesn’t cooperate with the doctors, he could be barred from calling witnesses to testify about his mental condition during sentencing. That would make it nearly impossible for his lawyers to use his mental state as an argument against the death penalty.
“If you don’t cooperate during the evaluation phase, you lose the right to call witnesses in your own behalf who could help convince a jury that your life should be spared,” said Karen Steinhauser, an adjunct law professor and former prosecutor.
It’s not clear how cooperation is defined, she said, and the question hasn’t been tested in court since the laws were changed to their present form in the late 1990s.
Colorado law defines insanity as the inability to distinguish right from wrong, caused by a diseased or defective mind. The law specifically excludes depravity, “moral obliquity” and passion caused by anger, hatred or other emotions from being considered insanity.
Holmes’ attorneys repeatedly have said in court hearings and documents that Holmes is mentally ill. He was being seen by a psychiatrist before the attack.
Holmes had sent the psychiatrist a notebook that media reports said included crude drawings of violence. Prosecutors might renew their request to see the notebook because state law gives them access to some medical records of defendants who plead not guilty by reason of insanity.
Prosecutors backed off their previous attempt to see the notebook when Holmes’ lawyers said it was protected by doctor-patient privilege.