Opening statements to begin Monday in Colorado theater shooting trial

It's been nearly three years since 12 people were killed in Aurora, Colo., at a midnight premier of the Batman movie The Dark Knight Rises.

James Holmes' legal team admits he was behind the massacre, but there are two key questions: Was he insane, and should he be put to death?

Tom Teves says his son Alex made a split-second decision to shield his girlfriend when the gunman stormed the theater and began firing into the crowd.

"He had to make a choice to save his girlfriend and die, or let her die. That's not a choice you should have to make at a movie," Teves says.

Alex was shot and killed; his girlfriend lived. The 24-year-old had just completed his master's degree in counseling psychology. Teves says he thinks about his son constantly.

"On a good night, I don't wake up at 3 o'clock in the morning, doubled over in pain that I'm never going to see my son again," he says.

Teves and his wife, Caren, stay up-to-date on all the latest developments in the case. He has even studied Colorado's insanity statute. They live in Phoenix and will travel to be in court as often as they can.

Caren Teves says they are frustrated by the slow pace of the trial. "Part of the travesty of this taking so long is the people that are allowed to move forward, that can move forward, are going to be right back to that day," she says. And she places blame squarely on the gunman's lawyers.

Former Colorado prosecutor Bob Grant says Holmes is represented by some of the best-trained and best-financed public defenders in the country.

"Look, they have one job, in cases like Holmes' and [in] most death penalty cases. Their one job is to save the life of their client. Every delay is another day he or she lives," Grant says.

One big reason for the delay is a battery of psychological testing from multiple experts. The shooter has pleaded not guilty by reason of insanity.

Insanity defenses are rarely successful. But Grant says as the heinousness of what happened is laid out, jurors will struggle with a nagging thought.

"Nobody who isn't nuts would do this — so that's a hurdle the prosecution has to overcome," Grant says.

Still, it's a high bar to prove legal insanity — not just that the defendant has some mental illness, but that he lacked the ability to tell the difference between right and wrong at the time of the shooting.

Colorado defense attorney Boogie Lewis says Holmes' attorneys may be playing the long game by raising the issue of sanity.

"To bring it out in the trial on the merits, of course, get it out in front of the jury, but it may be that its highest and most important consideration is in
penalty," Lewis says.

Meaning if jurors find him guilty, they may spare him the death penalty if they believe he's mentally ill — even if he's not legally insane.

This trial is unique for many reasons — particularly because there is a trial at all. Jack Levin, a criminologist at Northeastern University, says mass shooters tend to either die in the act or plead guilty and beg for the death penalty.

Here, there will be a trial spanning six months, with extensive psychological evaluations.

"We will learn from this trial, and that's one of the few positive things you can say about it," Levin says.

One big question: Why did the gunman target a movie theater? Mass shooters tend to focus on familiar places like work or school.

"He instead targeted people he didn't even know," Levin says.

Even if the trial can answer why this happened, it would be cold comfort to the families of victims.

Closure for Teves and his wife will not come in the form of a verdict. "If at the end of the trial Alex walks out alive, yes. Otherwise, no. We both know that Alex isn't going to come out of that trial alive. There is no closure.

"That was my first born son," Teves says.

The trial is expected to end in early September. If Holmes is sentenced to the death penalty, families can expect decades of appeals. Copyright 2019 CPR News. To see more, visit CPR News.