DENVER (KUSA, AP) - Launching a case that legal analysts expect to be dominated by arguments over the defendant's sanity, Colorado prosecutors filed formal charges Monday against the former neuroscience student accused of killing 12 people and wounding 58 others at an Aurora movie theater.
The shooter was formally charged with 24 counts of first-degree murder, 116 counts of criminal attempt to commit murder, one count of sentence-enhancement - crime of violence and one count of possession of an explosive device.
According to 9NEWS Legal Analyst Scott Robinson, the shooter is facing 24 counts instead of 12 - for the 12 people who died - was due to the two different types of first-degree murder he allegedly committed. Robinson says one form refers to murder with premeditation and the other is murder with extreme indifference to human life.
The 24-year-old shooter appeared just as dazed as he did in his first court appearance last week, but at one point exchanged a few words with one of his attorneys in the packed courtroom. According to 9NEWS Reporter Anastasiya Bolton, he sat near his public defenders - looking almost bored at times.
The family of Gordon Cowden, one of the victims in the theater shooting, released a statement on Monday regarding the formal charges:
"It saddens our family that there is a man that has so much hate and evil in his heart. Gordon was a man, working with their mom, to raise four children, to build a solid foundation for each; teaching them to love life, love themselves, love others and to love God. And though this evil man has caused our family so much hurt and pain he cannot, nor can anyone ever take away or ever permanently damage this foundation of love for each other, for others, for life and for God. We feel confident that our judicial system, as will God and the public, see to it that this evil man receives the punishment he deserves and our hope and prayers are that one day, he will face God with remorse and tremendous sorrow for his actions."
Jessica Watts, cousin of theater shooting victim Jonathan Blunk issued the following statement on behalf of the family:
"Like Jonny, I continue to believe in our justice system and trust that the District Attorney's office will pursue all applicable charges against the defendant. He will be held accountable for his actions and we, Jonny's family, will continue to mourn the hole we now have in our lives."
Josh Nowlan is one of the 58 survivors named in court documents released Monday.
Nowlan is in the intensive care unit of the Medical Center of Aurora and faces seven hours of surgery to repair his arm.
He could be released from this hospital as early as Friday.
Nowlan spoke to 9NEWS about the moment that saved his life.
"I went with my two closest friends Brandon and Denise. All of a sudden, this canister starts flying. And the next thing you know there are a couple shots that happen and I thought maybe it was firecrackers but then they started going off consistently. I remember just seeing him with the gun and just looking straight down at the people and just shooting right at them. Husbands were covering their wives and mothers and fathers were covering their children. We're just sitting there holding onto each other and just praying. I got my first shot in the leg. And people behind me and around me are getting shot and they're screaming and I'm telling them 'stay down, just stay down.' And that's when I got the second shot in my arm. It's like fire is just going through my leg and my arm. I started thinking about my kids. I started thinking about my life. Am I going to live? Am I going to die? I could hear the gun jams. He just gave up. He was done. If he knew how to fix that gun jam, I know I probably wouldn't be here. I'm just staring at people and I'm just seeing bodies everywhere. How many other lives were taken because somebody just decided 'I'm just going to go to a movie theater and just turn it into this massacre?' I would look at him straight in the face and tell him 'You did not take my life. You did not take my life," Nowlan said.
Nowlan eventually wants to go back to theater 9, back to his seat, to take in what happened and take back his life. A fund has been established for Nowlan to help cover his mounting bills.
Judge William Sylvester, chief justice of the 18th Judicial District, set a date for a preliminary hearing on Nov. 12 and it is expected to take one week, according to The Denver Post. The next court hearing is Aug. 9 at 1:30 p.m., which will address media request to unseal the case file.
Attorneys also argued over a defense motion to find out who leaked information to the news media about a package the 24-year-old shooter allegedly sent to his psychiatrist at the University of Colorado Denver.
Authorities seized the package July 23, three days after the shooting, after finding it in the mailroom of the medical campus where the shooter - James Eagan Holmes - studied. Several media outlets reported that it contained a notebook with descriptions of an attack, but Arapahoe County District Attorney Carol Chambers said in court papers that the parcel hadn't been opened by the time the "inaccurate" news reports appeared.
Investigators said Holmes began stockpiling gear for his assault four months ago and bought his weapons in May and June, well before the shooting spree just after midnight during a showing of the Batman film "The Dark Knight Rises." He was arrested by police outside the theater.
Analysts said that means it's likely there's only one main point of legal dispute between prosecutors and the defense.
"I don't think it's too hard to predict the path of this proceeding," said Craig Silverman, a former chief deputy district attorney in Denver. "This is not a whodunit. ... The only possible defense is insanity."
Under Colorado law, defendants are not legally liable for their acts if their minds are so "diseased" that they cannot distinguish between right and wrong. However, the law warns that "care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives, and kindred evil conditions."
Experts said there are two levels of insanity defenses.
Holmes' public defenders may argue he is not mentally competent to stand trial, which is the argument by lawyers for Jared Loughner, who is accused of killing six people in 2011 in Tucson, Ariz., including injuring Rep. Gabrielle Giffords. Loughner, who has pleaded not guilty to 49 charges, has been diagnosed with schizophrenia and is undergoing treatment at a Missouri prison facility in a bid to make him mentally fit to stand trial.
If Holmes' attorneys cannot convince the court that he is mentally incompetent, and he is convicted, they can try to stave off a possible death penalty by arguing he is mentally ill. Prosecutors will decide whether to seek the death penalty in the coming weeks.
Holmes did not enter pleas on Monday.
He ultimately could verbally enter a plea to the anticipated dozen first-degree murder charges, or his attorneys could enter it for him. Prosecutors may file multiple counts of attempted first-degree murder and other charges against Holmes, who booby trapped his apartment with the intent to kill any officers responding there the night of the theater attack, Aurora police said.
Sam Kamin, a law professor at the University of Denver, said there is "pronounced" evidence that the attack was premeditated, which would seem to make an insanity defense difficult. "But," he said, "the things that we don't know are what this case is going to hinge on, and that's his mental state."
With an unruly mop of orange hair, Holmes appeared bleary-eyed and distracted during his brief initial appearance in court last week. He did not speak.
Friends in Southern California, where Holmes grew up, describe him as a smart, sometimes awkward youth fascinated by science. He came to Colorado's competitive neuroscience doctoral program in June 2011. A year later, he dropped out shortly after taking his year-end exam.
District Court Judge William Blair Sylvester has tried to tightly control the flow of information about Holmes, placing a gag order on lawyers and law enforcement, sealing the court file and barring the university from releasing public records relating to Holmes' year there. A consortium of media organizations, including The Associated Press, is challenging Sylvester's sealing of the court file.
On Friday, court papers revealed that Holmes was seeing a psychiatrist at the university. But they did not say how long he was seeing Dr. Lynne Fenton and if it was for a mental illness or another problem.
The University of Colorado's website identified Fenton as the medical director of the school's Student Mental Health Services. An online resume listed schizophrenia as one of her research interests and stated that she sees 10 to 15 graduate students a week for medication and psychotherapy, as well as five to 10 patients in her general practice as a psychiatrist.
Authorities said Holmes legally purchased four guns before the attack at Denver-area sporting goods stores - a semiautomatic rifle, a shotgun and two pistols. To buy the guns, Holmes had to pass background checks that can take as little as 20 minutes in Colorado.
One development over the weekend brought more grief. A woman who was critically wounded and whose 6-year-old daughter was killed suffered a miscarriage because of the trauma, her family said Saturday. Ashley Moser's daughter, Veronica Moser-Sullivan, was the youngest person killed in the attack.
(KUSA-TV © 2012 Multimedia Holdings Corporation with The Associated Press)