Lawyers for Aurora theater-shooting suspect James Holmes are challenging the constitutionality of Colorado's laws for insanity pleas, introducing a complicated new argument into his case.

In a flurry of motions filed Thursday and made public Friday, Holmes' attorneys question whether the requirements for an insanity plea violate defendants' rights against self-incrimination. They also argue that the laws provide less protection for people facing the death penalty — as Holmes might — than for defendants facing prison terms.

Without answers from the judge, the lawyers say Holmes can't decide whether to plead not guilty by reason of insanity. He is scheduled to enter a plea March 12.

Holmes is accused of killing 12 people and wounding 58 more by gunfire July 20.

"Mr. Holmes is considering entering a plea" of not guilty by reason of insanity, Holmes' attorneys wrote in one motion, citing the specific statute numbers that cover the plea, "but he cannot intelligently decide how to proceed, until this Court rules upon certain legal issues related to the entry of such a plea and advises Mr. Holmes and counsel of the consequences of such a plea."

Though Holmes' attorneys have broadly hinted previously that he was considering a mental-health defense, the five motions filed this week are the first time they have been so explicit about the strategy they are considering.

The filings are likely to introduce significant delays to the case, which has stretched on for more than six months without a trial date even being set. But experts said the arguments aren't legal filibustering from Holmes' attorneys.

"These are very legitimate issues," said Denver lawyer David Beller, a criminal-law expert who is not connected to the case.

Arapahoe County prosecutors have not announced whether they intend to seek the death penalty. They have about three months after Holmes enters a plea to make the decision. But Holmes' attorneys say in their motions that the death-penalty decision looms over plea considerations.

If prosecutors seek death, Holmes could raise a mental-health defense in two ways: He could plead not guilty by reason of insanity, or he could present mental-health evidence during a sentencing hearing to persuade jurors not to impose death.

Defendants who plead not guilty by reason of insanity are ordered to undergo an evaluation by a court-appointed psychiatrist. State law requires defendants to cooperate in the evaluations, and a lack of cooperation could be used against them during trial or, potentially, a death-penalty sentencing hearing.

In this week's motions, Holmes' attorneys ask whether he would be forced to talk to a court-appointed psychiatrist about facts of the case, whether he would be forcibly medicated for an evaluation and whether he would be considered uncooperative if he didn't tell the psychiatrist anything.

They also question whether he would be forced to undergo an evaluation if he intends to raise mental-health issues only during sentencing. And they ask whether prosecutors could use evidence from the evaluation against him if he makes, then withdraws, an insanity plea.

Denver lawyer Karen Steinhauser said many of the questions about how insanity pleas work in death-penalty cases have never been raised before, meaning Holmes' case could set precedent in Colorado.

"It's a complex statute," she said.

Holmes' attorneys said the questions have high stakes.

"[I]t appears that evidence obtained by the state as a result of a compelling court-ordered examination may be unconstitutionally used by the prosecution to execute the person who is on trial for their life," they write in a motion.

Arapahoe County prosecutors have not yet responded to the motions, and it is unclear when they will. It is also unclear whether the March 12 arraignment will take place.

John Ingold: 303-954-1068, jingold@denverpost.com or twitter.com/john_ingold


What's next

James Holmes is scheduled to enter a plea March 12, but the hearing is now in doubt. Prosecutors must respond to Holmes' motions, and the judge could delay arraignment until the legal issues raised in the motions are resolved.