The trial of the former grad student charged in the deadly Colorado movie theater shootings will likely be delayed weeks or months because he wants to change his plea to not guilty by reason of insanity.
James Holmes' attorneys filed the court papers Tuesday.
The judge handling the case will hear arguments from the defense and prosecutors about the request Monday. If the judge accepts the plea, Holmes would be sent to the state mental hospital where doctors would determine whether he was sane at the time of the shootings. If he's found to be insane, a jury still could find him guilty.
Tom Sullivan, whose son, Alex, was killed in the attack, said prosecutors have warned victims that an insanity plea would delay the case.
"We're just mortified that this is the process that we're going through, and we still have a long way to go," Sullivan said Tuesday. "I know justice will win out in the end."
Holmes, 25, is charged with more than 160 counts of murder and attempted murder in the July 20 attack in Aurora that killed 12 people and left 70 wounded or injured. Prosecutors said Holmes spent months buying guns and thousands of rounds of ammunition, donned police-style body armor and opened fire during a midnight screening of the latest Batman movie.
Prosecutors announced last month they would seek the death penalty at the trial now scheduled to start Feb. 3.
Holmes was widely expected to plead insanity, given the compelling evidence against him. But his lawyers delayed it for weeks, saying state laws on the death penalty and insanity overlap in ways that could severely hamper his ability to mount a defense against capital punishment.
One of their worries: If Holmes doesn't cooperate with the doctors, he could be barred from calling witnesses to testify about his mental condition during sentencing. That would make it nearly impossible for his lawyers to use his mental state as an argument against the death penalty.
"If you don't cooperate during the evaluation phase, you lose the right to call witnesses in your own behalf who could help convince a jury that your life should be spared," said Karen Steinhauser, an adjunct law professor and former prosecutor.
It's not clear how cooperation is defined, she said, and the question hasn't been tested in court since the laws were changed to their present form in the late 1990s.
Colorado law defines insanity as the inability to distinguish right from wrong, caused by a diseased or defective mind. The law specifically excludes depravity, "moral obliquity" and passion caused by anger, hatred or other emotions from being considered insanity.
Holmes' attorneys repeatedly have said in court hearings and documents that Holmes is mentally ill. He was being seen by a psychiatrist before the attack.
Holmes had sent the psychiatrist a notebook that media reports said included crude drawings of violence. Prosecutors might renew their request to see the notebook because state law gives them access to some medical records of defendants who plead not guilty by reason of insanity.
Prosecutors backed off their previous attempt to see the notebook when Holmes' lawyers said it was protected by doctor-patient privilege.