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Kelly -- back in session on the docket today Colorado massacre suspect James Holmes.
There is speculation that Holmes who is suspected of committing one of the worst mass shootings in US history.
May try to use the insanity defense when he goes to trial.
Did you see is behavior today in court.
But the police suggesting that homes planned this massacre well in advance.
And with former teachers and classmates saying that he was at the top of his graduate neural science class some are questioning whether that argument.
Really stands a chance.
Joining me now Fox News legal analyst -- -- and former prosecutor now defense attorney mark I Clark now thank you so much for being here so.
I think I mean.
What else is he going to use as his defense right I mean that I think it's doesn't take a genius to predict he's gonna go with the insanity defense.
Police juries don't like -- no but sometimes it works John Hinckley junior comes to mind.
Yes Andrea Yates and her second trial you know the mother that killed -- -- children her five children very methodically.
Up and yes you're right this is grasping at straws for the defense they really have nothing else it was clear he was there.
You know he told me he told the cops that you know about his apartment as they have all the evidence against him as they say they do -- Well that's going to be is only really racked up that's what you gotta do that here's what the defense what -- -- -- -- that -- gonna say look.
Insanity defense at least get death and get the death penalty off the table prosecutor if you will -- I as a prosecutor wouldn't take that but that's I think what mark would argue.
Marquee they're gonna have to prove it if you was assert the insanity defense.
You're arguing that he did not know right from wrong at the time he committed the acts and then it becomes the State's burden to prove.
That he did.
How hard is right for our prosecutor under circumstances like this where most people look at -- diocese clearly knots.
Right well let me first and one part to the test.
They have to prove the defense does that he suffered from a mental defect or disease and from that.
He did not know right from wrong that's the first that does -- suffer from that will today's.
Indication at court seems to help -- now now that prosecutors will point to the very extraordinary facts in this case.
But the fact that he took the time to Wear protective armor to protect -- pride -- his knee cap his neck.
His head and then that he had the presence of mind to know that when his.
His shotgun no longer will can could pump -- bill bullets and kill innocent people to move to the assault weapon and when that -- to move onto a Glock.
All those things plus the booby trapping plus a lot more indicates he knew right from.
I had to prove he knew right from wrong -- doesn't that or does that prove that he's -- -- this -- this is a methodical thinker maybe he's gonna say he thought as reports are that he was the Joker.
And that -- was alive battle that he had to win.
It -- just because he was sure -- protective of himself doesn't mean he's not.
And same exactly but but but making that put things together here you can put them -- -- meticulous planning as mark -- -- talking about how he bought these things how he would cut the protected as an end and I like -- let me finish my point.
This is my point because here's what I really think kill them for the insanity defense when he says to the officers when he is arrested.
Oh my apartment it's booby trapped -- for some reason it until they open it that shows he knew right from wrong.
I don't see it I really don't see it I mean I I don't I think juries don't like insanity defense is but I don't see how any of those items get.
The prosecution over the hump right here and if you are the defense -- use that kind of imagery to say he was normal and then his twenties came around this happens so often with with young men and schizophrenia -- and whatever it.
-- -- but I from the prosecutor make and I also say look he's Smart he's -- like a fox he knows he can use these things he's probably research I wouldn't be surprised if there's some research even on the insanity defense.
On his computer when the cops go through his computer that he knows -- she has all these things in line that that's it that's argument he can make he didn't know Megan when he went into that theater whether he was going to liver dot.
But if he's so Smart I'll -- he thought through an insanity defense because there is no other defense -- that.
Is he he is said to be so so clever mark you know I mean -- Ph.D.
student studying -- science.
Although he was dropping out leader which may also be consistent with the onset of mental illness who knows.
But could he be clever -- enough to be laying the foundation for an insanity defense.
The answer is yes of course everybody knows that he has that ability but this'll come down to what the experts say.
You know if the defense doesn't like what the first -- -- to say they'll be another one lining up to say for sure who in the right mind would do this.
Well nobody would so there's something wrong with them they need to keep that first threshold and that is that he's got the mental illness has got some mental defects.
And then they're gonna try to find some way did -- know right from wrong but here's the big issue Megan.
There's not a jury in this land is gonna buy this argument so all this becomes mitigate or so when that same jury.
Then here's the sentencing phase assuming they seek death they're gonna say all well all that then plays into why we should spare his fly -- What about want to get to.
Whether it you know what what Roger is likely to do because again John Hinckley shot our president heat heat it worked for him that -- -- drill hole.
We did that standard -- we get to that let me asking me what is up with the -- Roland maybe he was on it was medicated.
And it was drugs but in court he could live and -- couldn't get his eyes open.
He kept looking off it was bizarre to watch right could this have been an act and what are what are -- -- that they medicated him in the jail -- over the weekend vote.
Both medication and -- both put together and of course he's been traumatized I mean you just.
Killed a bunch of people so yes he's been traumatized but that does not mean he's legally insane and again the standard has changed since the -- house up as Catholic well it before -- -- you didn't -- you have to -- more than just between knowing whether you knew right from wrong now because of the Hinckley case now it's to Kenya formed the intent.
Candy for me -- -- due to mental disease -- is back and did you know right from wrong that's all the prosecution has to prove.
Market you know -- -- how do you go about figuring out I mean even though everybody wants justice and you look at him and you that you don't want mercy.
Some people are insane some people really are insane and some people don't understand right from wrong how do you go about you know you have the -- of the experts for once -- -- on the other.
Getting to what's true.
Well you leave it in the hands of twelve people that's for 200 years how we've decided things and they're gonna decide.
And they can still make the finding that he suffered and still does from -- from mental illness that he is on medication.
But at the time it takes so very little there's numerous facts that I've alluded to it.
Many more that we're gonna uncover which showed that even though he may have suffered from mental illness and that's still a question mark.
That he knew legally right -- wrong our prisons are packed with people who have mental illness.
Means that it -- in Colorado it's not one of those states that has an option of guilty.
But insane -- like we've seen elsewhere so that jury could say he is insane.
And so he goes to the asylum but then when he gets better -- he goes right to -- NG direct -- -- he if he were found.
Not guilty by reason of insanity it would truly be you go to today insane you know I'm using the -- -- and -- -- mental health institute and -- if -- -- -- -- again you get.
-- right right.
And I think it jury's gonna know that I mean they can't know and -- in the first phase that -- know the sentencing.
But they would know that when it came to sentencing whether or not he would be getting out and and jurors are going to be -- research that I mean that we told not to but they will they're gonna know that if they acquit.
That's that he could be in their first three months or six months and say it -- while law I'm now not insane and I'm out market for LA -- that.
The prosecution hasn't made a decision yet on death penalty whether this will be a death penalty case or not.
Do you think that this discussion about his mental state will affect that decision.
Now I think they're gonna seek -- there's since 1976 they've only actually put one person to death in Colorado that was fifteen years ago there's only three people on death row but if there's ever -- case that cries out -- assuming we're going to be using this law.
This appears to be it.
Yeah I don't to the prosecutors taking the death penalty off the table and the defense is gonna come in and argue insanity that's -- one thing they have to argue but I just -- -- the prosecutor.
Couldn't inning that they've got a good deal with the people in Colorado Uga can you imagine being the prosecutors -- -- I just took a death off the table I don't see that happening now.
Panel good discussion thank you both so much you got it makes me.
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