Will the jury in the Soopers trial accept insanity as a defense? | BRAUCHLER | Opinion

On March 22, 2021, three and a half years ago, a 22-year-old man walked into a Boulder King Soopers with a legally purchased firearm and shot 10 people – including a police officer – before being arrested. This killer is seeking the opportunity to be released by jury trial.

Next week, men and women from Boulder will be interviewed and selected by two teams of lawyers: prosecutors seeking to hold the killer accountable and defense attorneys seeking to minimize punishment for his behavior. The killer is accused of the premeditated murder of ten innocent people. A conviction carries a mandatory sentence of life without the possibility of parole (LWOP) for each premeditated murder. Potentially ten life sentences.

A mass murderer caught at the scene of his heinous crimes has one way to avoid such a fate. He cannot claim self-defense, accident, alibi, or SODDI (some other guy did it). The only way to avoid an eternity in prison is to plead “not guilty by reason of insanity” (NGRI). That is, he suffered from a serious mental illness or defect that prevented him, first, from distinguishing between good and evil on the basis of societal morals, and, second, from forming the intention to murder after careful deliberation.

And that's exactly what the King Soopers butcher did.

Colorado has seen this before. The Aurora Theater mass murderer, whom our DA team prosecuted in 2015, pleaded NGRI after being caught at the scene of the murder of 12 innocent people and attempting to murder 70 more. The jury quickly rejected the NGRI defense in that case.

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For the King Soopers killer, the jury's verdict under the NGRI ruling means he will be committed to the Colorado Mental Health Institute of Pueblo (CMHIP), but only until psychiatrists determine he is no longer a danger to himself or others – and a judge would have to approve it. Current law requires that such a request be made within just six months.

For anyone who is going to be behind bars forever, this is an easy decision, regardless of whether such a defense is legitimate or not.

The supermarket butcher was found by the court to be insane for more than 20 months. But what does it matter? Insaneness is simply the finding that the perpetrator was unable to understand the nature of the proceedings sufficiently to defend himself during the course of the proceedings. This has nothing to do with the question of insaneness.

“Insanity” is not a diagnosis. It is not in the Diagnostic Statistical Manual, Fifth Edition (DSM-V), the bible for psychiatrists and psychologists. It is a jury's finding of fact based on a legal definition. Colorado has the strictest prosecution standards for insanity in America. Four states have abolished insanity, 35 place the burden of proving insanity on the killer, and only 11 – including Colorado – place the burden of prosecuting insanity on the prosecutor. And the burden of proof for Colorado prosecutors is the highest in the law: beyond a reasonable doubt.

And yet, Colorado juries have consistently rejected NGRI pleas from murderers, believing that expensive expert testimony that conflicts with the evidence and common sense creates little or no doubt about guilt. Moreover, jurors see the NGRI as a way for someone whose evil behavior is undeniable to “outsmart the system.”

Although a just society must be able to distinguish between those who act out of malice and those whose evil acts are the result of serious mental illness, we must be careful not to see them as mutually exclusive. One does not exclude the other, nor does one cause the other. A person can be both seriously mentally ill and evil.

In the meantime, it's worth noting that Governor Jared Polis, the ACLU, and our offender-friendly legislature have ensured that this trial takes place rather than a confession. Before Polis signed off on abolishing the death penalty in 2020 under the guise of COVID, the public defender's office would have offered to plead guilty to all counts to avoid the death penalty. That's over now. Every case of mass murder in Colorado now requires the victims and the community to endure a trial, no matter how blatant the crime.

“What about Club Q?” you ask? This homophobic mass murderer pleaded guilty to Colorado state murder charges to avoid the federal death penalty. That option does not exist here.

After all, just a few years ago, in 2020, the Democratic-controlled state Senate passed a bill in the Judiciary Committee that would have given any violent offender under the age of 25 an opportunity for early release on parole unless convicted of first-degree murder. Thus, any conviction other than first-degree murder offers the possibility of parole in the future—and perhaps even sooner than we think today.

These are the challenges facing prosecutors who ensure justice and public safety in Colorado's criminal justice system. These are the consequences of our votes.

George Brauchler is a former District Attorney of the 18th Judicial District and a candidate for District Attorney of the newly created 23rd Judicial District. He was an Owens Early Criminal Justice Fellow at the Common Sense Institute. Follow him on Twitter(X): @GeorgeBrauchler.