Public defender Dan King did my cross-examination. He was thorough and explored my findings in an effort to lessen the damage to his case for insanity. I had found serious mental illness in Holmes; it just wasn’t enough for me to believe he was insane in the legal sense at the time of the shootings. The defense psychiatrists would testify in a couple of weeks; King tried to bring out topics on which I would agree with them or at least view their future testimony, whatever it might be, as plausible.
It is important to understand that my role in the trial was not to advocate for the prosecution, even though the prosecution called me to testify. Ethical experts, including those retained by one side or the other, should advocate for their opinions, not for a litigant. If they are called to testify, it is because that side believes the expert’s opinions help its case. We are, or at least ethical experts should be, retained to find what we believe is the truth, not to be hired guns for one side or the other.
Attorney King was able to elicit the possibility of error in my diagnosis. I said that some of Holmes’s thoughts and behaviors could indicate delusions and other evidence of psychosis at various times. I leaned toward the presence of delusions in some of his statements but could not diagnose them with certainty before the shootings. I added that episodes of psychosis do not necessarily define a person as schizophrenic; I was confident in my diagnosis of schizotypal personality. That didn’t help Holmes’s insanity defense.
King didn’t focus on the criminal elements of capacity, intent, or understanding of right and wrong during his several-hour cross-examination. His main purpose was to establish a possibility that Holmes was psychotic during and just before the shootings. King knew that his experts, Drs. Woodcock and Gur, would testify that Holmes couldn’t appreciate what he was doing or appreciate its wrongfulness, which are elements of legal insanity, and he wanted to blunt my contradicting effect on the jury.
I agreed with King that Dr. Woodcock’s examination within a few days after the shootings gave Woodcock the advantage of seeing Holmes as he may have been in the theater itself, unmedicated and unaffected by prolonged incarceration or the severe mental breakdown that occurred a few months after he was arrested. I agreed that Holmes’s breakdown in November of 2012 had been a terrible situation for him. I agreed that I hadn’t observed Holmes during every day he was in jail, but I had reviewed all of the jail logs after the jail stopped preserving his daily video surveillance.
I reiterated that Holmes did not have an antisocial personality (a criminal propensity that would exempt him from an insanity defense); he is not a psychopath and had no history of violent behavior before the cinema shootings. King brought out the fact that Holmes’s preferred video games were strategy ones, not “first-person shooters.”
I disagreed, though, with the defense premise that Holmes’s writings proved he was psychotic, and particularly with the idea that most or all of the things he wrote during the first few months of his incarceration were necessarily bizarre or psychotic. That would come up later, in Dr. Gur’s testimony. The defense wanted the jury to interpret Holmes’s musings about things like galactic colonization without any context. In my view, they were not necessarily bizarre in any event, and when taken in context it was clear to me that many people, including both fiction and nonfiction science readers and writers, often talk about similar ideas.
Many people with serious mental disorders appear normal much of the time. Holmes’s normal behaviors, and even the fact that I found him capable of criminal intent, didn’t mean he wasn’t seriously ill. I agreed that at least two of Holmes’s close relatives were severely mentally ill and that schizoaffective disorder and similar conditions have a genetic component. I reiterated, and King highlighted, my testimony that if Holmes had not been mentally ill, the shootings wouldn’t have occurred. The jury heard that—the importance of his mental illness in the commission of the shootings—from every psychiatric expert.
Public defender King often alluded to the methodology of my interviews, criticizing, for example, my inviting Holmes to speculate with me or being “leading” (suggesting answers or guiding him to an answer). Those two techniques—speculation and “leading”—are not usually allowed in court when lawyers are asking questions of witnesses, but a psychiatric examination, even a forensic one, is not a court procedure. Asking evaluees to speculate, consider, ponder, reconsider, and explain are accepted ways of exploring their thoughts. Prodding and leading them to think about topics are parts of the examination process. All of my efforts and techniques, which no doubt contained many imperfections during those twenty-three hours, were open for the jury to see and evaluate and for the lawyers and experts on both sides to critique at trial.
King’s last question was about whether or not Holmes had cooperated with my evaluation, something demanded of people seeking an insanity verdict in Colorado. I said that he had.
DA Brauchler’s redirect questions lasted an hour or so and were aimed at solidifying the parts of my testimony that supported the prosecution’s case. He asked how confident I was in my opinions about sanity; I said, “extremely confident.” With regard to Holmes’s illness being a necessary factor for the shootings, I said that his mental disorder affected the course of events but not his capacity to understand them and to choose to carry them out.
Brauchler, anticipating Dr. Woodcock’s later testimony about seeing Holmes a few days after his arrest and sooner than any other psychiatric expert, asked how I might have approached my interviews if I had seen him just after he was arrested. Would I have done anything differently from Dr. Woodcock? I pointed out that I don’t allow members of a legal team to sit in on my interviews, except perhaps for a brief introduction. I would not have allowed defense or prosecution representatives to be within the defendant’s line of sight or to interrupt or participate in the examination. If any of those occurred or if the attorney restricted my inquiries in any meaningful way, I would probably resign from the case.
I assumed that Dr. Woodcock would testify later that Holmes was acutely psychotic when he saw him on July 24, 2012. In response to Brauchler’s questions, I reminded the jury that just hours after the shootings, before Woodcock had interviewed him, Holmes talked clearly and at length with investigators, helping them to disarm the booby traps and incendiary devices inside his apartment. That post-arrest conversation had been recorded and was played for the jury. Brauchler went through parts of Holmes’s preshooting notebook, reading seemingly incriminating sections out loud. He pointed out that Dr. Woodcock didn’t have the notebook when he interviewed Holmes, and Holmes apparently never mentioned it to him. He didn’t tell Woodcock about the human capital concept. Brauchler cited passages by Holmes about planning the shootings, “Plan A,” “Plan B,” and “Plan C,” and hating people, and he implied that Holmes turned his victims into numbers. The quotes were framed as questions to me, but Brauchler’s purpose was to have the jury hear those words from the notebook as many times as possible.
Colorado is probably unique among states in allowing jurors to question witnesses after the lawyers have finished their direct and cross-examinations. Juror questions are submitted through the judge, who decides which ones are proper and sometimes modifies their wording. I was asked a dozen or so, many quite good and helpful for clarifying what I was trying to convey.
Jurors asked about the several diagnoses that had been mentioned, Holmes’s communication and how it was affected by his psychological issues, girlfriend and dating topics heard in my interview videos, his wanting to keep Hillary Allen from being involved with him as a murderer, his self-worth, his selfie photos, whether or not being remembered—sort of a legacy—was a significant motive for the shootings (it did not appear to be), my opinion that Holmes does not have antisocial personality, whether or not the way a question is asked might change how something is remembered (it can), and whether or not self-diagnosis can cause symptoms (it can).
Judge Samour didn’t allow some of the questions that jurors
submitted, such as whether or not Holmes would have killed again if he hadn’t been arrested and whether or not he would try to increase his self-worth by increasing his human capital if he were released.
The prosecution called Dr. Metzner next. Brauchler’s direct examination took a little over two hours and covered the findings and opinions already described that were in Metzner’s report. Some media pundits suggested that since the prosecution was instrumental in asking for a second court evaluator, Brauchler limited Metzner’s direct examination and didn’t want to keep him on the stand very long. I don’t know what was in the district attorney’s mind, but what Metzner had to say about Holmes’s sanity was very similar to my own opinions (and vice versa). He supported the prosecution far more than the defense during this part of the trial.
But maybe the defense lawyers weren’t concentrating on Holmes’s sanity as much as they were focusing on simply keeping him alive. Before the trial, they had been willing to plead Holmes guilty in return for keeping him off death row. Even though Judge Samour often reminded the jury that Metzner’s and my testimony should only be considered with regard to sanity and for no other purpose (such as assessing a penalty if they were to find him guilty), it would make sense for the defense to want the jury to hear as much as possible about the severity of his mental illness so that they would be less likely to sentence him to death if he weren’t found not guilty by reason of insanity. Dr. Metzner had a lot to say about that and articulated it well.
The Denver Post said in an editorial that Metzner and I “inundated” jurors with personal information about Holmes that could be “critical to the jury’s decision on a possible death sentence…. Holmes’ [sic] favorite books to read as a kid and the meal that he cooked for his girlfriend on Valentine’s Day, the name of his childhood dogs and how he cried when the dogs were put down.” It is much harder for juries to give a death sentence to a person they view as human than to one they view simply as a generic defendant or, as Brauchler referred to him over and over in court, impersonally and often derogatorily, “that guy.”
Metzner cited many reasons for his opinion that Holmes knew that what he was doing was not only illegal but would be viewed by society as wrong, even “evil.” Much of that was from Holmes’s own statements; some was from the behaviors recounted in the voluminous records he reviewed. Holmes had said he knew that shooting people in a theater was counter to legal and social morality. His planning was well thought out and documented in his notebook. He had ways to delay getting caught, such as by diverting police attention to explosions or fire in his apartment. He said that he bought his ammunition over time in order not to arouse suspicion. He said that he researched other mass murders, specifically the Columbine shootings, to estimate police response times and how much ammunition he would need.
Holmes told his ex-girlfriend Gargi Datta, in a somewhat vague Gmail chat around March 25, 2012, that he wouldn’t want to get caught or go to prison. His dating profiles on Match.com and AdultFriendFinder.com had the teasers “Will you visit me in prison?” Holmes’s delusions, Metzner testified, didn’t diminish his capacity to appreciate right and wrong. His Gmail chats established that he knew he was thinking about “doing something evil” and that it was against the law. There were lots of other examples.
Metzner explained that the defendant’s functioning, not his diagnosis, is the main issue for sanity. Whether the mental condition is schizophrenia, schizoaffective disorder, schizotypal personality, or something else doesn’t matter, so long as it’s serious enough to qualify as a mental disease or defect under the Colorado statute. People with serious mental illnesses are rarely psychotic all the time, and sometimes not at all.
In addition to giving his opinion that Holmes had the capacity to know right from wrong during and before the shootings, Dr. Metzner, too, said the shootings wouldn’t have happened if Holmes hadn’t been severely mentally ill. Metzner’s preshooting diagnosis was schizoaffective disorder, a substantially more serious condition than schizotypal personality. He explained his rationale for the diagnosis, citing symptoms that I had considered less definitive, and said, among other things, that Holmes was “floundering, … struggling with who he was and what was going to happen to him.”
Metzner believed Holmes was very depressed in addition to being psychotic. He inferred evidence for what psychiatrists call “vegetative symptoms,” such as appetite and sleep disturbance, that are consistent with serious depression, and a feeling that Holmes had lost his purpose in life. Holmes believed, accurately or not, that he wasn’t going to make it in graduate school and that his brain wasn’t going to be fixed. On top of that, he had lost his first serious girlfriend.
Public defender King spent about two hours cross-examining Dr. Metzner, getting him to agree that a particular diagnosis is one doctor’s opinion (referring to mine) and may or may not be correct. King focused a lot on diagnosis and its relevance to a person’s thought process, but Metzner reiterated that diagnosis doesn’t dictate whether or not a person is psychotic at any particular time. Dr. Metzner cited “negative symptoms” suggesting schizophrenia, observable, passive signs that one is not normal, such as marked paucity of speech, lack of motivation, and difficulty experiencing pleasure, and agreed with King that a person’s outward behavior can be normal even when he is delusional, believing things that aren’t real.
King’s point to the jury, with which Metzner largely agreed, was that Holmes suffered from a mental illness that is associated with psychotic features. He had, at various times according to the defense, delusions, hallucinations, catatonic behavior, negative symptoms, obsessive behavior, and homicidal and suicidal thinking. There was little evidence for some of those, and less during the shootings themselves, but Metzner agreed with part of the defense position.
Dr. Metzner’s redirect by the prosecution was brief, a recap of what he had already said. One of the things it covered was that Metzner looked at the totality of the circumstances of Holmes and the case, not just the items that the defense wanted to highlight. Another was that although the tests given by defense psychologist Hanlon and independent psychologists Manguso and Gray indicated that his mental illness was genuine, they didn’t imply that everything he said was accurate or reliable.
Some information Holmes gave to Metzner contradicted what he told others, such as Dr. Gur. He told Metzner and me that he went to the theater to shoot as many people as he could, but Gur reported that he hadn’t thought he would kill or harm people when he went. That’s a big difference.
When Metzner asked Holmes specifically about the words “a call for action” found in Dr. Gur’s report, Holmes responded clearly that he had never used that phrase; he didn’t have an explanation for the discrepancy. Similarly, Holmes told Metzner that he hadn’t studied for his graduate school preliminary exams because, having always studied out of a fear that he wouldn’t please others, this time he wanted to be himself and not study out of fear. Holmes had told me that not studying was, in part, a way to fail the test so he wouldn’t raise suspicion when he dropped out of school.
The jury had three questions for Dr. Metzner, all having to do with the medication, sertraline, that Dr. Fenton had prescribed during the spring of 2012. King followed up by asking whether or not the sertraline could have contributed to what Metzner called Holmes’s delusional beliefs. Metzner testified the drug didn’t contribute to the delusional beliefs and had no effect on his ability to know right from wrong.
Much of the Court’s time immediately after Dr. Metzner’s cross-examination was devoted to the jury. The jurors had been reminded several times a day of Judge Samour’s very strict rules prohibiting them from talking about the case with anyone, even among themselves, during the trial. They were to assiduously avoid all contact with news and other media that mentioned the case, were never to be around people who were discussing it, and were to report any breach of the rules to the judge’s staff at once.
During the Metzner redirect, a note fro
m Juror 673 was handed to Judge Samour. It said that she had observed a breach of those rules involving Juror 872 and perhaps two others. For the next several hours, the judge questioned everyone suspected of being involved. It turned out that Juror 872 had taken a cell phone call from her husband, who told her about a Facebook post and an inadvertent tweet about the case from “one of the lawyers.” The call had been on speaker, and at least two other jurors heard the husband say, perhaps quoting the Facebook post, “the idiot,” “the judge was mad,” and “I hope the jury saw the video.”
That day, Juror 872 and the two others who heard the conversation became the first of five jurors to be dismissed from the trial; Juror 673 was praised for her honesty and allowed to remain. Two more jurors would be dismissed over the next eight days, one because a relative was shot in a robbery attempt and another because the juror knew one of the witnesses but had failed to notify the judge. Nineteen would remain at the end of the trial phase, twelve of whom would deliberate Holmes’s fate.
The prosecution continued to call witnesses, dozens of them, after Dr. Metzner. Most were survivors of the shootings; others were law enforcement officers and investigators, Holmes’s former friends, Dr. Fenton, and Dr. Robert Feinstein (who had seen Holmes with Fenton a few weeks before the shootings).
Gargi Datta, who dated Holmes for a while during their first year of graduate school, talked about a relationship that was more serious for Holmes than for her. His shy awkwardness got better when they were alone, but toward late spring she broke off even their then-fairly-superficial meetings.
A Dark Night in Aurora Page 21
