Life or Death for Accused Movie Theater Shooter?

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By Ed Payne, CNN

(CNN) — Since the death penalty was reinstated in Colorado more than 35 years ago, the state has executed just one person.

Now comes the case of James Holmes, who faces 166 counts of murder and attempted murder for a shooting at an Aurora movie theater that left 12 people dead and 58 wounded.

If there ever was a poster boy for capital punishment, legal analysts say, the 25-year-old Holmes would fit the bill.

On Monday, prosecutors will decide whether they will accept a defense request to take the death penalty off the table if Holmes pleads guilty.

It’ll be a delicate balancing act for the state, says CNN legal contributor Paul Callan.

Any time someone is sentenced to death, the sentence isn’t carried out right away. Usually the appeals process takes 10 years to wind its way through the courts, he said.

In addition, more and more states are abolishing the death penalty. Currently, 33 states have the legal option of imposing the death penalty, while 17 plus the District of Columbia do not.

“The prosecutor is walking a tight rope. He is looking at … the realistic view of the world, which is, even if I get the death penalty, it will probably never be imposed,” he told CNN last week.

“But on the other hand, people are going to be furious if he lets Holmes walk after such a brutal crime.”

Should the death penalty be imposed?

The death penalty was reinstated in Colorado in 1976. In that time, the state carried out one execution — in 1997.

Right now, three people sit on Colorado’s death row.

Prosecutors have a lot to consider in determining whether Holmes, if convicted, should join them.

“The voters enacted the death penalty in Colorado. This case is the poster boy for that,” Callan said.

Holmes’ attorneys have said they intend to pursue an insanity defense.

And that, says David Beller, a defense attorney not associated with the case, can make the prosecution’s decision to seek the death penalty more complicated.

“There’s a few reasons they wouldn’t go for the death penalty, the most important one being his mental state,” he said. “The Supreme Court, and really society, has been very clear: We don’t kill, we don’t execute people who are mentally ill. We just don’t do it.”

Prosecutors also will have to weigh the impact on the families of the victims should they pursue a death penalty case that could go on for year, with a string of appeals likely.

Prosecutors blast defense

Monday’s hearing comes less than a week after Holmes’ defense team filed documents saying Holmes has offered to plead guilty and spend the rest of his life in jail.

Not only have prosecutors not accepted the offer, but they’ve taken the defense to task for publicly offering it, saying they haven’t been given enough information to even consider such a deal.

“Not only improper, but grossly improper,” prosecutors said in a Thursday court filing. “For the intended purpose of generating predictable publicity”

Attorneys on both sides are under a gag order, leaving case watchers to divine tactics from court documents.

“Prior to arraignment, Mr. Holmes made an offer to the prosecution to resolve this case by pleading guilty and spending the rest of his life in prison, without any opportunity for parole,” the documents filed by the defense team read.

Last month, a judge entered a standard plea of not guilty for Holmes, who is accused in the July 20, 2012, shooting.

In the documents filed Wednesday, his attorneys said they are still exploring a mental health defense, “and counsel will vigorously present and argue any and all appropriate defenses at a trial or sentencing proceeding, as necessary.”

The case against Holmes

Federal agents have said the former University of Colorado doctoral student planned the attack for months.

He began buying guns in May 2012, allegedly building an arsenal of two Glock handguns, an AR-15 rifle, a shotgun and 6,295 rounds of ammunition.

Authorities say Holmes booby-trapped his apartment with explosives, then traveled to the movie theater armed with the weapons, tear gas and body armor planning to kill audience members during a screening of “Batman: The Dark Knight Rises.”

Witnesses who spoke to CNN said the gunman roamed the theater, shooting randomly as people tried to scramble away or cowered between seats.

“This is not a ‘whodunit.’ Everybody knows that James Holmes committed these horrible murders. The question is what punishment he will get,” said CNN senior legal analyst Jeffrey Toobin.

“If they (defense attorneys) can get life in prison, they will consider this a victory.”

Holmes’ trial date has been set for August 5.

–CNN’s Jim Spellman contributed to this report