What happens next

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What happens next

It is a matter of legal fact that must be decided by the court. I have been asked numerous times if James Holmes will escape punishment if he is found incompetent.

Wednesday, July 25, 2012

Many people are legitimately assuming the issue of competence will be raised in his case, and it is understandable for people to be worried that it might be a loophole in the law, or a way for him to avoid punishment. A little background on legal competence to stand trial: In Colorado, where Holmes will be tried, he must have a rational and factual understanding of the criminal proceedings against him and he must have sufficient present ability to rationally cooperate with his attorney to assist in his defense.

If he does not have either of these abilities, it must be determined that his "incompetence" is caused by either a mental disability or developmental disability. If you want to read the actual Colorado law, you can look it up here: If a person is not competent but faces trial anyway, there are multiple grounds for appeal if convicted.

The person can argue that he had ineffective counsel, he can argue that he did not receive due process, and he can make a claim that he did not have an actual opportunity to confront his accusers, tell his side of the story, or present evidence in his defense.

If a conviction and thus a sentence is overturned, there is a chance the perpetrator can walk free. Because of the risk of overturning a conviction on appeal, it is my guess that the Arapahoe County DA will raise the issue of incompetency with the court if the public defender does not.

The DA will want to make sure Holmes' competency-related abilities are documented in the record before he faces his charges so there aren't any questions about them afterward if he is convicted.

The judge cannot ignore a request for the competency issue to be examined. The court will order a competency evaluation, and most likely, Holmes will be sent to the Colorado Mental Health Institute at Pueblothe state mental health hospital, to undergo a competency evaluation.

I know most of the psychologists who work at this hospital, and they are excellent.

What happens next

Holmes will be evaluated by some of the best forensic psychologists in the country. After a few weeks of evaluation, these psychologists will offer an opinion on whether or not Holmes is competent.

It will then be up to the judge to make the final legal ruling. If Holmes is deemed competent to stand trial, his legal case will proceed just like normal. If he is found incompetent, he will be remanded back to the hospital in Pueblo, where he will undergo "restoration to competency" treatment.

Every 90 days, psychologists will update the court on Holmes' progress in treatment. One of two things will happen at this point: Either 1 he will be restored to competency and will face his charges just like normal, or 2 he will not be restored to competency and will not face his charges.

But wait, didn't I just write that being found incompetent is not a free pass? How is not facing multiple first-degree murder and countless other charges not a free pass?

Frequently Asked Questions (FAQ) - The Go Programming Language

Here is the catch: To say it in plain English, if Holmes is not restorable to competency, he will be locked in Pueblo for at least 12 life sentences, even though he was never convicted of a crime. There is a chance that the defense could successfully argue that the court should drop the charges against him if he is unrestorable or that the judge could allow him out of custody on bond, but given the nature of his alleged crimes, both of these possibilities is extremely unlikely.

What happens next

So, even if Holmes is found incompetent, the only way he will go free is if he is restored to competency, takes his case to trial, and is found Not Guilty on every one of the dozens of charges he faces.

I hope this helps. Thanks for reading-- Max Wachtel, Ph.Arrow Video: The exclusive home for Arrow free full episodes, previews, clips, interviews and more video. Only on The CW.

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