Colorado prosecutors are taking advantage of a well-used tool that legal experts say could help ensure a conviction of the former graduate student accused of opening fire at a midnight showing of the new "Batman" film: the charge of murder with extreme indifference.
For each of the victims of the shooting spree in a Denver suburb that left 12 people dead and 58 wounded, prosecutors charged James Holmes with two murder counts - one standard first-degree murder charge, plus one count of murder with extreme indifference. They also filed two attempted murder counts for each of the wounded survivors.
In Colorado, a first-degree murder charge can be brought against someone who intended to murder another person. But it can also be brought where there is evidence of "extreme indifference to the value of human life generally" in which someone knowingly created a "grave risk of death to a person, or persons, other than himself."
State laws that recognize murder with indifference are not uncommon, said Daniel Filler, a professor at Drexel University's law school, but in some cases, states treat murder with indifference as a lower grade offense than pre-meditated murder. In Colorado, murder with extreme indifference is also first-degree murder.
By charging Holmes with both crimes, prosecutors are giving jurors two opportunities to find Holmes guilty.
"This is a prosecutor's insurance policy," Filler said. "Nobody is going to think this wasn't an unbelievably, crazy, reckless act."
In recent years, Colorado prosecutors have used the statute to obtain a variety of convictions, including those for drive-by shootings, according to legal experts.
"This is the charge of choice of Colorado district attorneys because it is incredibly easy to get a conviction with it," said Thomas Carberry, a Colorado criminal defense attorney.
A jury can convict of Holmes of both counts, but can punish him for only one, he said. Prosecutors have not yet indicated whether they will seek the death penalty for Holmes.
(Reporting by Andrew Longstreth in New York; Editing by Cynthia Johnston and Lisa Shumaker)