Being found incompetent to stand trial does not mean a person will never face his charges. Incompetent to Stand Trial is not a legal defense like Not Guilty By Reason of Insanity is. It is a matter of legal fact that must be decided by the court.
I have been asked numerous times if James Holmes will escape punishment if he is found incompetent. Many people are legitimately assuming the issue of competence will be raised in his case, and it is understandable for people to be worried that it might be a loophole in the law, or a way for him to avoid punishment.
A little background on legal competence to stand trial: it is incredibly important for an individual to understand what is happening in court, to be able to think rationally about courtroom proceedings, and to be able to work with an attorney to assist in developing a defense. In Colorado, where Holmes will be tried, he must have a rational and factual understanding of the criminal proceedings against him and he must have sufficient present ability to rationally cooperate with his attorney to assist in his defense. If he does not have either of these abilities, it must be determined that his "incompetence" is caused by either a mental disability or developmental disability.
If you want to read the actual Colorado law, you can look it up here: C.R.S. 16-8.5-101 et seq.
If a person is not competent but faces trial anyway, there are multiple grounds for appeal if convicted. The person can argue that he had ineffective counsel, he can argue that he did not receive due process, and he can make a claim that he did not have an actual opportunity to confront his accusers, tell his side of the story, or present evidence in his defense. If a conviction (and thus a sentence) is overturned, there is a chance the perpetrator can walk free.
Because of the risk of overturning a conviction on appeal, it is my guess that the Arapahoe County DA will raise the issue of incompetency with the court if the public defender does not. The DA will want to make sure Holmes' competency-related abilities are documented in the record before he faces his charges so there aren't any questions about them afterward if he is convicted.
|The Colorado Mental Health Institute|
at Pueblo (CMHIP) Campus
If Holmes is deemed competent to stand trial, his legal case will proceed just like normal. If he is found incompetent, he will be remanded back to the hospital in Pueblo, where he will undergo "restoration to competency" treatment. Every 90 days, psychologists will update the court on Holmes' progress in treatment.
One of two things will happen at this point: Either 1) he will be restored to competency and will face his charges just like normal, or 2) he will not be restored to competency and will not face his charges.
But wait, didn't I just write that being found incompetent is not a free pass? How is not facing multiple first-degree murder (and countless other) charges not a free pass? Here is the catch: In Colorado, a person can be locked in a maximum security wing of the state hospital, which is very similar to prison, until he is restored to competency or for the maximum term of confinement that could be imposed for the offenses with which he is charged.
To say it in plain English, if Holmes is not restorable to competency, he will be locked in Pueblo for at least 12 life sentences, even though he was never convicted of a crime. There is a chance that the defense could successfully argue that the court should drop the charges against him if he is unrestorable or that the judge could allow him out of custody on bond, but given the nature of his alleged crimes, both of these possibilities is extremely unlikely.
So, even if Holmes is found incompetent, the only way he will go free is if he is restored to competency, takes his case to trial, and is found Not Guilty on every one of the dozens of charges he faces.
I hope this helps. Thanks for reading-- Max Wachtel, Ph.D.