Insanity defense will be hard sell for monstrous crime in Colorado

This is a rush transcript from "On the Record," July 23, 2012. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: This is not a whodunnit. James Holmes was arrested right outside the movie theater almost as if he were waiting for the police to arrive and arrest him. Meanwhile, his apartment was rigged with explosives. The evidence seems overwhelming. So what strategy could defense attorneys be planning?

Our legal panel joins us. Michael Cardoza is in San Francisco and Bernie Grimm and Ted Williams are here in Washington.

Bernie, let me start with you. He's -- let's say he's your client. Where do you begin?

BERNIE GRIMM, CRIMINAL DEFENSE ATTORNEY: Well, you go to see him at the jail, tell him everything's going to be OK, despite the fact that he's not going to be able to deal with that.

Number two, very important, right out of the block, you need to have a psychiatrist see him immediately. Number three, you tell him, From now on, I'm doing the talking. Don't open your mouth anymore.

VAN SUSTEREN: Michael, what did you think looking at him on this video we're looking a right now in the courtroom? What's your thought?

MICHAEL CARDOZA, FORMER PROSECUTOR: Well, my first thought is the Joker from the movie, the way his hair is. And that certainly will play into the defense because the only choice they have here is to enter a not guilty by reason of insanity plea.

The first step here will be to see if he's able to stand trial. Can he help his trial counsel to prepare the trial? If he can, they move forward, they enter the not guilty by reason of insanity plea, and we go from there.

VAN SUSTEREN: Ted, there's no -- I mean, look, you know, the guy gets caught outside with the goods. He's got all these eyewitnesses. It's the worst crime. He has killed, he has destroyed so many lives of people he killed, 58 people are in the hospital critically injured. I mean, it's the absolute most incredible atrocity.

He's your client. How do you represent him?

TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: Well, you do just what I think Michael and Bernie have somewhat said. The first thing you definitely want to do is try to get one of the very best psychiatrists you can find.

There is a dichotomy, as you know, Greta, between competency and using the insanity defense. The first thing you want to do is deal with the competency situation. Can he participate in his own defense?

If it's found that he is not able to, then they're going to have to put him into a mental institution until he can participate in his own defense. And then they're going to move from there to probably the insanity defense. That's the only way they can go in this case.

VAN SUSTEREN: Bernie, what's the point of the -- the -- I mean, in an insanity defense, sometimes they're bifurcated. You have the guilt phase and then you have the insanity phase. Can you tell me the point of a defense attorney going through the guilt phase, when the evidence is so overwhelming? Why not stipulate to the evidence and move to the other? I mean, let's fact it, that's the only option at this point on the table.

GRIMM: For tactical reasons, you would stipulate to the evidence and just move forward with insanity, although some lawyers believe that -- take two bites at the apple. And for our viewers, that means you get to have a trial on the merits, which is, Is he the guy who shot? Can somebody identify him? Can they prove the case beyond a reasonable doubt?

Once that happens, then you can -- you're found guilty, then you can take another shot at it. I don't like that because that -- the jury -- it's just too insulting for the jury because you're essentially saying, and you know, For my next magical trick, I'm going to pull a rabbit out of the hat.

VAN SUSTEREN: Michael, we're all sort of -- I mean, we are speculating about what's with the weird eyes and the movement. And he looks sort of odd in the courtroom.

CARDOZA: Right.

VAN SUSTEREN: I mean, the hair's right out of -- I mean, that's right out of central casting for the Joker. Your thoughts on the eye stuff, and all -- I mean, an act, a drug, a direction from his lawyers or just this guy?

CARDOZA: Well, you know, I don't think this is all an act. As horrific as it was, we all know that there's something mentally wrong with him. But will it hold up under a defense of not guilty by reason of insanity? Of course not. The emotion of this case? There's no juror that I know of that would find him not guilty by reason of insanity.

And they know if he's found not guilty by reason of insanity, what happens is then he's put into a mental hospital. When I was prosecuting a number of years ago, a person got out because the doctor said, Well, he's fine now, after being found not guilty by reason of insanity.

Two days later, he commits a murder. I tried him again for that murder. There were five psychiatrists that testified that said he was insane. The jury came back sane because they wouldn't take the chance that that person would ever get out of the hospital again.

People want him in prison. The big question here will be, will they impose the death penalty on him?

VAN SUSTEREN: And late today, actually, we heard from James Holmes's mother, Arlene Holmes, in San Diego. The family's attorney read a statement from her.

(BEGIN VIDEO CLIP)

LINDA DAMIANI, ATTORNEY FOR HOLMES FAMILY: "This statement is to clarify a statement made by ABC media. I was awakened by a call from a reporter from ABC on July 20th about 5:45 in the morning. I did not know anything about a shooting in Aurora at that time.

"He asked if I was Arlene Holmes and if my son was James Holmes who lives in Aurora, Colorado. I answered, Yes, you have the right person. I was referring to myself. I asked him to tell me why he was calling, and he told me about a shooting in Aurora. He asked for a comment. I told him I could not comment because I did not know if the person he was talking about was my son and I would need to find out."

(END VIDEO CLIP)

VAN SUSTEREN: Ted, who wants to talk more to the parents, the defense or the prosecution? And what are they going to ask?

WILLIAMS: Well, I think that both sides certainly are going want to talk to the parents. One of the things that I want to know from the parents is what kind of a psychological record or a psychiatric record, should we say, that this guy may or may not have had through his childhood and into adulthood.

But I think this ABC reporter, Greta, if I may say, may have caught this woman by surprise. And I'm willing to give her the benefit of the doubt. When she said, I think you have the right person, the inference that we all want to draw is that she knew that he was already maybe a lunatic. But I'm willing to give here the benefit of the doubt, his mother.

VAN SUSTEREN: All right, well, I think mistakes can be made both ways on that, you know, in a quick call and when you're awakened in the middle of the night. So I'm actually not assigning much to either one. I assume that they both, you know, misunderstood each other.

Bernie, the insanity defense, you know, it -- in Colorado, is that once he raises the insanity defense, that the -- then the prosecutor has the burden of proof of proving sanity. That used to be the standard in the federal system until Hinckley, and John Hinckley was found not guilty by reason of insanity and sent to a mental hospital, not to prison. The federal government changed the standard.

Is that such a much easier standard for the defense?

GRIMM: Oh, yes. If you're -- if you're a defendant -- well, if I'm representing a client -- I had two older cases under the older statute. It's essentially the right/wrong test -- Does your client know right from wrong? It's essentially a lot more complicated than that. But as a result of a mental disease or defect, does your client know right from wrong? Or -- and/or, does your client know right from wrong, and because of this disease, he can't stop himself anyway?

It's a very, very hard standard to meet. According to the American Psychiatric Association, defendants that try to win it by not guilty by reason of insanity -- 3 percent win.

VAN SUSTEREN: Michael, a real quick question. You can be a little weird but not insane legally, right?

CARDOZA: Absolutely, because, as Bernie said, you talk to, Did they know right from wrong? And I guarantee the prosecutor in this case will go into all the preparation that Holmes went through. He will talk about the night, how he came into the theater, how he propped the door open.

There's no way. Circumstantially, he did know right from wrong. This case is going to be about, for the defense, you talk to the family, you try and...

VAN SUSTEREN: And I got...

CARDOZA: ... humanize him...

VAN SUSTEREN: And I got to go...

CARDOZA: ... and you try and save his life. That's the best.

VAN SUSTEREN: Gentlemen, thank you.

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