James Holmes was found guilty of first degree murder last Thursday for the deaths of 12 people in the July 2012 Aurora, Colorado shooting. The insanity defense that his team tried proved unsuccessful, and Holmes will now be sentenced for his crimes.

Holmes faced two counts of first degree murder for each of the twelve victims killed during the shooting. The jury found him guilty on all 24 counts. The jury also found Holmes guilty of attempted murder on all of the 140 counts against him for the 70 people wounded in the shooting. Additionally, he was found guilty of one count of possession or control of an explosive or incendiary. He faced a total of 165 charges, a decision that took the jury 12.5 hours to reach. Now the same jurors are faced with the task of sentencing him to death. This process began yesterday. His attorneys are expected to raise his mental illness again during the penalty portion.

Holmes who had pleaded not guilty by reasons of insanity, but admitted to the killings, showed no reaction as the verdict was announced. His attorneys were pushing for him to be committed to a mental hospital for the rest of his life, while state prosecutors were seeking the death penalty.

Even though Holmes did not take the stand, the jury did hear from him via the 22 hours of recorded psychiatric interviews he had at both the Colorado Mental Health institute in Pueblo and at the jail where he is being held. Two defense psychiatrists testified that Holmes suffered a psychotic break the night of the murders and could not discern between right and wrong, but two-court appointed psychiatrists told the jury the defendant was mentally ill, but not insane. While those sound interchangeable, there’s actually important distinctions under the law.

In pleading not guilty by reason of insanity, James Holmes attempted to do something no accused mass shooter in America has done in more than 20 years–win a case with the insanity defense. Holmes faced long odds for a defense that studies show is raised in only about one percent of all felony cases nationally and successful in only about a quarter of those.

Mass shooters very rarely survive their crimes to face court charges. According to a database of American mass shootings in the last 30 years, suspects in only 19 of 61 mass shootings examined were arrested. Others either committed suicide or were killed during the shooting. Of those 19, only four, including Holmes, pleaded insanity.

The reason for the low success rate is the high bar that laws set for the insanity defense. In Colorado, it is not enough for defendants to be mentally ill. Instead, the law defines insanity as having judgment so impaired by mental illness that the defendant could not tell right from wrong. Given Holmes’ vivid plan, this did not appear to be the case.

The primary factor in determining insanity is the intensive mental health evaluations that a defendant pleading insanity is required to undergo. The judge overseeing the case this week ordered Holmes to be evaluated at the Colorado Mental Health Institute in Pueblo. After several hours of evaluations, it was determined that his insanity plea was not plausible.

Evidence shows that Holmes’ plan, to some degree, was thought out beforehand. Holmes bought a ticket 12 days before the July 19 showing, and walked into the theater screening of the “The Dark Knight Rises” like any other movie goer. He then walked out through a rear door, which he left propped open. Just after midnight, about 20 minutes after the movie began, he returned wearing a ballistic helmet, a gas mask, black gloves, and protective gear for his legs, throat and groin. A tear gas canister exploded in the theater, then gunfire erupted from an AR-15 rifle, a 12-gauge shotgun and at least one .40 caliber handgun. The shooting stopped with Holmes’ arrest outside the theater about seven minutes after the first 911 calls were made to police.

Given that evidence of his plan, it was not hard for members of the jury to believe that Holmes did not meet the bar for the insanity defense. “Look at the evidence, then hold this man accountable,” Arapahoe County District Attorney George Brauchler said. “Reject this claim that he didn’t know right from wrong when he murdered those people and tried to kill the others…that guy was sane beyond a reasonable doubt, and he needs to be held accountable for what he did.”

With the jury certain that Holmes does not fit the bill for the insanity defense, it is not clear where their decision will fall in terms of Holmes receiving the death penalty. As one of the largest mass murderers in American history awaits his fate, we will have to see what the jury ultimately decides.

Angel Idowu

Angel Idowu is a member of the Beloit College Class of 2016 and was a Law Street Media Fellow for the Summer of 2015. Contact Angel at staff@LawStreetMedia.com.

The post Guilty Verdict for James Holmes: Does the Insanity Defense Ever Work? appeared first on Law Street.

The podcast “Serial” took the world by storm this fall. Never had a podcast been so talked about, so obsessed over, or raised such fascinating questions about a 15-year-old murder conviction. The case involved a young man named Adnan Syed who was convicted of murdering his ex-girlfriend. Although he was convicted a decade and a half ago, Syed’s case will now be heard again in court.

For those of you who missed “Serial,” here are the CliffNotes. Don’t worry, I’ll stay away from too many spoilers. Essentially, in 1999, a Baltimore high school senior named Hae Min Lee went missing and was later found dead. After a police investigation, Syed, her ex-boyfriend who was also a high school senior, was found guilty of her murder.

Fast forward almost 15 years to present day. Journalist Sarah Koenig was approached by Syed’s friends with concerns about the way his case was handled, and all the inconsistencies in the evidence that was brought up in court. Koenig was intrigued, and started looking into the case. She ended up producing a podcast–a journalistic enterprise–exploring the facts of the case.

A Maryland court just ruled that it will hear arguments on Syed’s case, mostly based on the fact that his lawyer, Christina Guttierez, may not have done her job effectively. Syed and his lawyers are arguing that Guttierez didn’t follow up with a possible alibi witness whom Koenig spoke to in the “Serial” podcast. They also argue that Guttierez failed Syed by not exploring the possibility of a plea deal when she was given the option. Given that Guttierez has since died of a heart attack, it’s unclear why she made those choices. They could have been incompetence, like Syed’s attorneys are arguing, or they could have been a strategic move.

After a few different attempts at an appeal failed since Syed was convicted, this most recent appeal was brought to the Maryland Special Court of Appeals. It’s important to note that Syed hasn’t actually been granted an appeal–this is just a small step toward that. Basically, the Maryland Special Court of Appeals has agreed to listen to what Syed and the state have to say, and then decide whether or not to order a new trial, or send it back to the Circuit Court.

Koenig posted about the development on the “Serial” website, saying:

In Episode 10 of the podcast, I reported that this appeal was alive by a thread. Now, I’d say it’s more of a … well-made string, maybe. Like the nylon kind. Because it means that the Court of Special Appeals judges think the issues Adnan raised in his brief are worth considering. That’s a pretty big hurdle for any appellant to clear.

Whether or not Syed will actually end up getting a new trial is very uncertain at this point. That being said, it’s a case that touched a lot of people, or at the very least opened the doors to some unsettling realities of our justice system. I’m sure all “Serial” fans will be anxiously awaiting the next news in this saga.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Subject of Serial Podcast Gets Appeal Opportunity appeared first on Law Street.

If you tell people you want to write a book/movie/play, etc., you will likely hear something along the following: “A good writer writes from personal experience.” And Maryann Castorena might just have followed that advice a little too closely to its intended meaning.

This story came to light when Jose Hernandez’s body was found buried in the snow by his still-running car. Hernandez was the former paramour of Castorena and the former roommate of Anthony Delagarza, who was arrested for the murder and then confessed to the crime. However, he claimed he was not acting alone. According to Delagarza, Castrorena offered to pay him $50,000 to commit the murder so that she could cash in on Hernandez’s life insurance. And it turned out this was not a case of his word against hers. There was a pretty detailed letter involved.

The letter from Castorena, found in the backpack of the killer, basically said things like the following:

• Are we still on for that ‘thing we discussed’ (wink, wink)?
• Just do it right by his car.
• The snow will cover it up.
• Don’t drop stuff on the ground that people can find.
• Don’t park by the gas station or ATM that’s right there because there might be cameras there.

You get the point. It was basically an advice column on how to kill one specific person. According to Castorena, though, this is all just a big coincidence. Her letter was not about having Hernandez killed, but about making money. I know, I know, it seems like one and the same: she was going to make money by having him killed; however, that was not actually her plan. You see, what the police thought was a letter addressed to a hit man on how to kill an individual man, was actually a movie script/book idea that Castorena wrote after overhearing two women talking.

Courtesy of Giphy.

Strangely, this story was met with a few raised eyebrows. I mean, believable as her claim was, there actually were a few … plot holes. Like, why were these women talking about killing someone in such a specific manner in a public place? Were they trying to kill Hernandez or just anyone? If it was Hernandez, why would Castorena write a movie about it instead of going to the cops? I mean, at the very least she should want this nipped in the bud so that there would be no spoilers, right? Why would she have the murder in the movie take place right outside of her boyfriend’s place near the same ATM and gas station that was really there? Why was the letter written as an instruction sheet and not a book or script? You probably get the picture.

Since nobody seemed to buy her completely legitimate, realistic story, she had to write another one: she finally admitted to police that this was not actually a book idea, but that it was a letter she wrote about the murder of Hernandez … that Delagarza made her write. Wait! You don’t think that sounds realistic either? Okay. Um. She means … oh! She’s got it! This guy broke into her apartment one night and forced her to write that letter at knifepoint! That’s it! That’s what happened!

Delagarza is saying that not even that last, clearly likely version of her tale is accurate, though, and maintains that it was, in fact, Castorena who wanted Hernandez dead. The alleged playwright is being charged with a whole bunch of crimes, including murder. She better hope that the judge is a Mark Twain fan who knows that sometimes truth is stranger than fiction.

Ashley Shaw

Ashley Shaw is an Alabama native and current New Jersey resident. A graduate of both Kennesaw State University and Thomas Goode Jones School of Law, she spends her free time reading, writing, boxing, horseback riding, playing trivia, flying helicopters, playing sports, and a whole lot else. So maybe she has too much spare time. Contact Ashley at staff@LawStreetMedia.com.

The post How Not to Get Away With Murder: Say It’s Your Murder Novel Script appeared first on Law Street.

The UVA Law Supreme Court Litigation Clinic is headed to the Supreme Court next term to defend Anthony D. Elonis, the New York man who posted rap lyrics to Facebook describing how he would kill his estranged wife. (If you’re not familiar with the case, click here to read my take on it.)

The main question in Elonis v. United States centers on First Amendment rights–when do threats made online become true threats, which aren’t protected by the First Amendment? Specifically in Elonis’s case, the court will be examining Facebook statuses in which he posted threatening “rap lyrics.” Select UVA Law students will take a stab at presenting Elonis’s defense.

The UVA Law Supreme Court Litigation Clinic is a one year program offered to third-year law students. Admitted students earn eight credits through participation, but even more valuable is the experience they gain. Once accepted to the clinic, students actively participate in live cases and must meet high expectations.

Working in teams, students handle actual cases from the seeking of Supreme Court review to briefing on the merits. Classes meet every week to discuss drafts of briefs and other papers students have prepared for submission to the court. Students will be expected to identify candidates for Supreme Court review; draft petitions for certiorari, amicus merits briefs and party merits briefs; and attend mootings and Supreme Court arguments.

In addition to providing invaluable experience to our nation’s future legal force, the UVA Law clinic grants students the opportunity to work on a pivotal case. The Supreme Court will debate whether Elonis’s Facebook posts can actually fall under the category of true threats–meaning that he intended to carry out the actions he wrote about. But Elonis’s lawyers artfully defended his case by stating he was rapping, therefore claiming First Amendment protection.

One of the clinic’s instructors, John P. Elwood, described the case as highly relevant because of our increased reliance on electronic communication. Furthermore, he made the point that electronically communicating with strangers may lead to miscommunication more often. Elwood says the ambiguity surrounding true threats has been a mess since the 2003 Virginia v. Black case, in which the Supreme Court attempted to create more specific guidelines for defining them.

I maintain my opinion, this guy is scary–if I were the ex-wife he had threatened I’d want a sense of security and protection too. There may be UVA students who also sympathize with her, but are defending Elonis with the clinic. Unfortunately for them, as a lawyer you don’t always get to choose who you defend. A lawyer’s duty is to defend her client to the fullest extent of the law, regardless of her personal beliefs. It will be valuable for those students to learn that lesson early, because sometimes it’s a hard pill to swallow. For example, when Hillary Clinton was a court-appointed attorney in 1975, she defended a 41-year-old man who was accused of raping 12-year-old girl. It must have been tough, and her political foes are now using it to attack her, but the important thing is that she did her job as a lawyer. The UVA students may have the opportunity to practice that kind of ethical dilemma when they argue on behalf of Elonis.

Elonis v. United States is the eleventh case the UVA clinic will defend in the Supreme Court since its establishment in 2006. And while the academic and legal experience is highly valuable, one other aspect should not be forgotten–legal ethics. That’s exactly what sets the Supreme Court Litigation Clinic apart from the rest–practicing legal ethics in a pivotal case. These twenty-somethings are in for quite a ride; their participation in our highest court could make history!

The University of Virginia School of Law staff did not comment as of press time.

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Natasha Paulmeno (@natashapaulmeno)

Featured image courtesy of [Mmw3v via English Wikipedia]

Natasha Paulmeno

Natasha Paulmeno is an aspiring PR professional studying at the University of Maryland. She is learning to speak Spanish fluently through travel, music, and school. In her spare time she enjoys Bachata music, playing with her dog, and exploring social media trends. Contact Natasha at staff@LawStreetMedia.com.

The post UVA Law Clinic Takes on Controversial Anthony Elonis Case appeared first on Law Street.

Journalist Mignon McLaughlin once said that “a sense of humor is a major defense against minor troubles.” However, in the legal world, the inverse is often shown to be true: a sense of humor is only a minor defense against major troubles.

When pleading insanity just seems too mundane, creative criminal defendants come up with some unusual defenses to prove their innocence; but, funny as these may be, do they actually work? Maybe sometimes, but let’s look at two such defenses that most likely will never lead to an innocent verdict.

Fat Men Can’t Murder

In 2006, the ironically named Edward Ates was accused of driving from Florida to New Jersey to kill his son-in-law. Even though the prosecution painted Ates as a competent marksman with some military experience, said he had been doing online research on how to kill, submitted a conversation he had with his sister in which they went over the timeline of events, and had his own sister testify that her brother had her lie to the police about where he was at the time of the murder, his attorney said Ates could not possibly be the killer.

But why?

Well, for one, the damning military experience turned out to be a desk job. Also, apparently people with too much time on their hands often pick up hobbies — up to and including researching methods to commit murder. Oh yeah, and did I mention he was really, really fat? Because that’s important.

You, like the defense, might be asking yourself how a man who weighed 300 pounds at only 5’8” could possibly drive for 21 hours straight, walk up four steps, and still manage to hold a gun straight. My guess is that it was just the adrenaline rush you get in exciting situations; instead of suddenly being able to lift a car off a child, perhaps this guy was able to make a short climb in order to get rid of someone who must have been — assuming guilt here — a real nuisance in his life. The defense, on the other hand, apparently wouldn’t have bought my potential solution. According to them, there was no way this man could have successfully completed such a physically taxing feat, and thus he must be innocent.

As it turns out, the jury at this trial didn’t buy the obesity defense and the fat man was convicted of first degree murder.

(This case actually made it on appeal to New Jersey’s highest court in States vs. Ates, 217 N.J. 253 (2014), but it got there on the merits of whether the admitted evidence of the wiretapped call between Ates and his sister was legal in the state of New Jersey — not on whether obesity is a legitimate legal defense. The high court concluded that the evidence was admissible, and the verdict stands.)

Good Jokes Aren’t Illegal

Did you hear the one about the man who “accidentally” poured gasoline on his nag of a wife and then pulled out a lighter and tried to light it — all while winking at his young son? Do you get the punch line? I don’t, but there must be one somewhere in there or otherwise the defense that this all happened “as a joke” just wouldn’t make sense.

I am the type of person who likes to find humor in life. I am always up for a good joke, whether knock-knock or practical. However, Khemraj Samlall’s recent “prank” just seems to have fallen flat.

This all started when Samlall got home really late, or rather really early, one morning and, as is not surprising, when he arrived, he was a little drunk. His wife was not thrilled. She berated him for his actions; he threatened her with a knife in front of her child, went and got a gas can, doused her in gas (not on purpose according to him), and then pulled out a lighter. Basically, tit for tat.

According to him, this was all done as a joke. Are you laughing as hard as he apparently was? As the events mentioned above only happened recently, there has yet to be a trial, though Samlall has been accused of “aggravated assault with a deadly weapon without the intent to kill.” And while I normally try to keep my legal opinions to myself, I feel pretty confident that I know how this defense will work out for Samlall if he can find an attorney willing to try it: if nobody laughs at your joke, it probably isn’t funny.

Justice Scalia once said, “I don’t want a competent lawyer. I want a lawyer who’s going to get me off.” United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). However, if your counsel — or intended defense — is neither competent nor likely to work, maybe you should move on to plan B.

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Ashley Shaw (@Smoldering_Ashs) is an Alabama native and current New Jersey resident. A graduate of both Kennesaw State University and Thomas Goode Jones School of Law, she spends her free time reading, writing, boxing, horseback riding, trivia, flying helicopters, playing sports, and a whole lot else. So maybe she has too much spare time.

Featured image courtesy of [Divine Harvester via Flickr]

Ashley Shaw

Ashley Shaw is an Alabama native and current New Jersey resident. A graduate of both Kennesaw State University and Thomas Goode Jones School of Law, she spends her free time reading, writing, boxing, horseback riding, playing trivia, flying helicopters, playing sports, and a whole lot else. So maybe she has too much spare time. Contact Ashley at staff@LawStreetMedia.com.

The post Dubious Defenses: When Humor and the Court Just Don’t Mix appeared first on Law Street.

In the 21st century, many people do not consider how vulnerable their high-tech gadgets are to outside hackers. Information can be stolen at the swipe of a password, and it will take some time before you notice anything is wrong. The same can be said for governments fighting to stay on top of the latest technologies — especially the type that can help defend them against various enemies. These enemies, however, are no longer those we traditionally think of (‘evil’ governments and terrorists), at least not for our elected officials. In fact, the challenge of our time according to many top feds and military officers, is defending against cybercrime.

Following the hacking onslaught against retail giant Target, the Federal Bureau of Investigation (FBI) warned that more attacks are on the way, considering the attraction for additional cyber criminals to score easy money off of unsuspecting businesses. According to a paper released by the Ponemon Institute in 2012, cybercrimes cost businesses at least $8.9 million annually , and if they do not modernize security practices soon, hackers may get away with a lot more than just someone’s credit card information.

The National Institute of Standards and Technology (NIST), a federal technology agency, released a 39-page report on Wednesday to set industry standards implementing adequate protections so that businesses do not continue to get hit with hacking attacks from all over the globe. The report itself focuses on three main points:

1. Framework Core: “A set of cybersecurity activities, desired outcomes, and applicable references that are common across critical infrastructure sectors…that allows for communication of cybersecurity activities and outcomes across the organization from the executive level to the implementation/operations level.”
2. Framework Implementation Tiers: “Provide context on how an organization views cybersecurity risk and the processes in place to manage that risk. Tiers describe the degree to which a organization’s cybersecurity risk management practices exhibit the characteristics defined in the framework.”
   
3. Framework Profile: “The alignment of standards, guidelines, and practices to the Framework Core in a particular implementation scenario. Profiles can be used to identify opportunities for improving cybersecurity.” 

Even though the goals are well-intentioned, the fact the report comes out of an executive order from the President could throw a wrench into the implementation within Congress, as the members are already at odds as to whether or not the President should have more freedom interpreting legislation. However, there may still be a shot at cooperation between the two branches on this front, as business executives continue to pressure lawmakers at cybercrime hearings.

And they may not have a choice but to work together, as Joint Chiefs of Staff Chairman Martin Dempsey explained at a speech in June 2013 that “strengthening our cyber defenses on military systems is critically important, but it’s not enough in order to defend the nation.” Citing an investment of $23 billion into cyberdefense, four thousand new Cyber Command recruits, and three new teams focusing on defense of the nation, battlefield commands, and global military networks, Chairman Dempsey indicated that the United States is mounting intimidating offenses but that the country has a lot of catching up to do. In another hearing in February 2012, Senator Lindsey Graham inquired of Dempsey about cyberattack threats from China, often an alleged source of hacking. In response, the Joint Chiefs Chairman replied that China’s hacking seems to target intellectual property and trade secrets more than anything else, but if they were to attack the United States’ infrastructure, they should expect a similar response.

As major nations all around the globe come to grips over the rising tide of cybercrime, the United States is most certainly ramping up its defenses. While military leaders warn that what we have in store is not enough, federal officials continue to release new indicators that they’re serious about tackling the issue. Despite all of the rhetoric, business leaders in the nation continue to experience cyber crimes, having their secrets stolen and clientele information hacked. There is still a lot of work to be done if the United States is going to be ready for a future of relentless cybercrime.

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Dennis Futoryan (@dfutoryan) is an undergrad with an eye on a bright future in the federal government. Living in New York, he seeks to understand how to solve the problematic issues plaguing Gothamites, as well as educating the youngest generations on the most important issues of the day.

Featured image courtesy of [elhombredenegro via Flickr]

Dennis Futoryan

Dennis Futoryan is a 23-year old New York Law School student who has his sights set on constitutional and public interest law. Whenever he gets a chance to breathe from his law school work, Dennis can be found scouring social media and examining current events to educate others about what’s going on in our world. Contact Dennis at staff@LawStreetMedia.com.

The post Is America Ready to Fight Cybercrime? appeared first on Law Street.