What Aurora mass shooting teaches us: Column

The murder trial of James Eagan Holmes began last week in Colorado. On July 20, 2012, Holmes walked into a packed movie theater in Aurora that was showing a midnight screening of The Dark Knight Rises. Holmes used an assault rifle, a shotgun and a semiautomatic pistol to kill 12 people and wound 70 more. The issue for the jury is whether Holmes is not guilty by reason of insanity, but the challenge for the rest of us is what lessons can we learn from this tragedy to prevent future mass shootings.

My sense is that the jury will conclude that Holmes was sane. Under Colorado law, a person is not criminally responsible for his acts if he is unable to distinguish right from wrong or cannot form a culpable mental state, in this case, an intent to kill others. But the fact that Holmes might have been mentally ill (he had seen several mental health professionals before the shooting) and apparently harbored a deep rage against society does not establish legal insanity. In one Texas case where the defense was successful, for example, the defendant suffered from auditory and visual hallucinations and believed that he was being hunted by the Mexican mafia and that he was born to Jesus. But that case was an exception because the majority of insanity defenses are rejected by juries.

While the degree to which Holmes suffered from these types of symptoms is in dispute, no one denies that he had a superior intellect (he was a Ph.D. candidate in neuroscience at the University of Colorado), methodically planned the shooting and, afterwards, aided the police in defusing his intricately booby-trapped apartment. The two independent experts who examined Holmes at the court's direction found that he was sane.

Even so, it's not an open-and-shut case. Unlike in many states, in Colorado the prosecutors, who are seeking the death penalty, have the burden of proving that Holmes was sane, meaning that the defense only has to raise a reasonable doubt in the jury's mind about Holmes' sanity. The insanity defense is often a battle of experts, and the defense has its own experts who can testify that Holmes was insane. The fact that credentialed experts in a highly technical field disagree alone can raise a reasonable doubt for many jurors.

As important as the outcome of the trial are the lessons learned. A national mass shooter threat assessment center, such as the ones used to assess terrorist threats or threats to the president, is needed to collect and analyze in real time the dots of an emerging mass shooting threat. A 2013 report by the Congressional Research Service concluded that "threat assessments may be used to prevent a mass shooting." What could such a center have accomplished in Aurora?

More than a month before the shooting, Lynne Fenton, one of the professionals who saw Holmes, warned the University of Colorado's Behavior Evaluation and Threat Assessment team, as she was required to, that Holmes was dangerous and had homicidal thoughts. The team has no law enforcement authority, and, in response, a campus police officer apparently only deactivated Holmes' campus access card. But had Fenton been required to send her warning to a national threat assessment center with investigative powers, her observations of Holmes could have been matched with his concurrent online purchases of 6,000 rounds of ammunition. Other dots could have been connected, including the fact that just after he failed an important exam, Holmes reportedly purchased one of his firearms. Authorities could have acted more aggressively, including putting him under surveillance; subject to court approval, civil commitment to a hospital or treatment center, and arrest assuming probable cause, then existed that he had committed a crime.

This doesn't mean adopting a Minority Report criminal justice system that incarcerates people based on clairvoyant predictions about their murderous futures. Since 9/11, though, not just in Aurora but in places such as Fort Hood, Virginia Tech and Sandy Hook, far more Americans have been killed by mass shooters than by Islamic terrorists. A mass shooter threat assessment center might just limit the spread of more mass shooting battlefields.

Gregory J. Wallance, a lawyer and writer in New York City, is a board member of Advancing Human Rights.

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