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Boulder District Attorney Michael Dougherty speaks to the media about the shooting at a south Boulder King Soopers store on March 22, 2021. (Steve Peterson, Special to The Colorado Sun)

When an attorney stood Thursday to say the defense team needs more time to assess the mental health of the Boulder King Soopers shooting suspect, it was an echo from Colorado’s recent past.

The sentence uttered by defense attorney Kathryn Herold — “We cannot begin to assess the nature and depth of Mr. Alissa’s mental illness until we have the discovery” — is an almost word-for-word repetition of what defense attorney Daniel King said nearly nine years ago during an early hearing for the man ultimately convicted of committing the Aurora movie theater shooting. 

King, the chief trial deputy at the Colorado State Public Defender’s Office, is now one of the public defenders representing the King Soopers suspect, Ahmad Al Aliwi Alissa.

This symmetry helps provide a clearer picture of how the case may unfold against the King Soopers suspect, who is charged with 10 counts of murder in connection with the deadliest shooting in Colorado since the Aurora attack. Those killed in the shooting were: Denny Stong, 20; Neven Stanisic, 23; Rikki Olds, 25; Tralona Bartkowiak, 49; Suzanne Fountain, 59; Teri Leiker, 51; Kevin Mahoney, 61; Lynn Murray, 62; Jody Waters, 65; and Eric Talley, a Boulder police officer who was 51.

Here is an explanation of likely next steps in the case:

The defense will likely seek a mental health examination

Herold’s statement in court Thursday indicates the defense may raise the defendant’s mental health as an issue in the case. Doing so can significantly alter the course of the case, which is why the attorneys will want to know as much as possible before making a public decision about whether to pursue a mental health defense.

In previous mass shooting cases, such as the Aurora theater attack, defense attorneys sought to have the suspect seen in jail by a defense-hired mental health evaluator as soon as possible after his arrest. These evaluations are private components of the defense’s investigation. They do not have to be shared with prosecutors or the judge, unless the suspect’s attorneys choose to formally raise a mental health defense.

There may be an issue of mental competency

If the defense decides to move forward with raising mental health as an issue, there are two, very different ways it can do this: Through competency or sanity. 

Competency looks at the mental state of the defendant in the present — right now. It is concerned with determining whether the suspect is mentally well enough to understand what is going on and to assist in his defense.

Determination of competency is made through an independent mental health evaluation, conducted either at the jail where the defendant is held or at the Colorado Mental Health Institute in Pueblo. A judge can unilaterally seek a competency evaluation, or defense attorneys or prosecutors can file motions requesting one.

Defendants who, for instance, will not speak with their attorneys or who do not understand that they have been charged with crimes, may be found incompetent to continue. If a defendant in a case involving a serious felony, such as a mass shooting, is found incompetent, the case is paused and the defendant is taken to a mental health insititution for treatment in an attempt to restore competency.

There will then be periodic hearings to determine whether the defendant has been restored to competency and the case can continue. This is what has happened so far in the case involving the 2015 shooting at a Colorado Springs Planned Parenthood clinic. The defendant in that case continues to undergo treatment in an attempt to make him competent to stand trial.

A plea of not guilty by reason of insanity may be weighed

Sanity, meanwhile, is backwards-looking. It is concerned only with the defendant’s mental health at the time of the alleged crime.

The defense raises sanity by pleading not guilty by reason of insanity, or NGRI. This leads to a court-ordered independent mental health evaluation in which the defendant must participate. And it requires defense attorneys to turn over any mental health records they have gathered about their client.

The results of this independent evaluation are then shared with both defense attorneys and prosecutors, and they may be used as evidence during the trial. Defense attorneys may also present their own evaluations as evidence during the trial. Prosecutors are rarely allowed to have their own experts directly evaluate a defendant.

The independent evaluation will offer an opinion on whether the suspect suffers from a mental health condition that rendered him incapable of distinguishing right from wrong at the time of the crime. But sanity is a legal determination, and it is ultimately up to a jury to decide whether a defendant was legally insane.

People found not guilty by reason of insanity are not convicted of a crime. But the judge may order them committed to a mental health institution for treatment.

The Aurora theater shooting suspect underwent two court-ordered sanity evaluations. Jurors ultimately concluded he was legally sane.

Competency and sanity are not necessarily linked. It is possible for people who are competent to stand trial to be found not guilty by reason of insanity, and it is possible for people who are found incompetent to stand trial to later be found legally sane at the time of the crime.

Boulder District Attorney Michael Dougherty speaks to the media about the shooting at a south Boulder King Soopers store on March 22, 2021. (Steve Peterson, Special to The Colorado Sun)

Prosecutors will likely file more charges

Boulder County District Attorney Michael Dougherty has filed 11 charges against the shooting suspect — nine counts of first-degree murder after deliberation, one count of first-degree murder of a peace officer after deliberation and one count of attempted first-degree murder of a peace officer.

But Dougherty said in court Thursday that he plans to file more charges against the defendant in the coming weeks. If previous cases are any guide, it is possible some of those new charges could be additional counts of murder.

Colorado law allows for a defendant to be charged under multiple legal definitions of murder. This is what happened in several recent high-profile shootings, including the Aurora theater attack and the STEM school shooting in Douglas County. Suspects were charged with both murder after deliberation and murder with extreme indifference. Juries do not have to pick one or the other; they are able to convict defendants of two counts of murder for killing a single person.

The next major step is the preliminary hearing

Early court hearings typically involve matters of organizational procedure — such as work to secure evidence or requests for gag orders. The next major step in a case after the filing of charges is the preliminary hearing.

This stage is something of a preview of the prosecution’s case, and it usually comes weeks to months after charges are first filed. Preliminary hearings typically involve testimony by detectives and perhaps some exhibits. The defense often does not present evidence at this stage. The purpose is for the judge to decide whether there is enough evidence for the case to continue to trial.

It is also possible for defendants to waive the preliminary hearing, thus agreeing to go to trial without prosecutors needing to present evidence.

The parking lot around a King Soopers in Boulder, Colorado is cordoned off for police investigation the day after a shooter opened fire, killing 10 people. March 23, 2021. (Lucy Haggard, The Colorado Sun)

Then comes arraignment and a plea

The public often thinks of arraignment as coming early in a case, immediately following charges being filed. But actual arraignment in Colorado doesn’t happen until after the judge has made the decision during the preliminary hearing to move the case toward trial.

The defendant will be asked at arraignment to enter a plea. Most commonly, a defendant would plead not guilty. But this is where defense attorneys could enter a not guilty by reason of insanity plea. If that happens, this is also the stage at which the judge would order the independent mental health evaluation.

More motions hearings and then trial

After arraignment, the case is firmly on course toward trial. At this point, prosecutors and defense attorneys are deciding what evidence they will present at trial. There could be a flurry of motions filed and debated to include or exclude certain witnesses or pieces of evidence.

As trial approaches, the court will send out summonses for potential jurors. Trial technically begins on the first day of jury selection, when prospective jurors will fill out questionnaires and then answer questions from the judge and attorneys about their biases or prior knowledge of the case.

This process concludes with a panel of jurors and alternates selected — people on the panel won’t know which they are. And then comes the opening statements, the presentation of evidence, the closing arguments and the jury deliberations. Juries must be unanimous to convict in Colorado. Juries that are intractably deadlocked produce a mistrial.

A plea deal could happen at any time

In some high-profile shootings, including the 2012 Aurora theater attack and the 1993 Chuck E. Cheese shooting also in Aurora, defense attorneys early on made an offer for the suspect to plead guilty and be sentenced life in prison in exchange for the death penalty being taken off the table.

Colorado lawmakers last year repealed the death penalty. That will likely make it easier to seat a jury in the King Soopers case, if it goes to trial — jurors on death penalty cases must not only be unbiased on the facts of the case but also unbiased when it comes to capital punishment. But it makes it less clear whether the defense or prosecutors will be inclined to reach a plea agreement that would avoid a trial. 

If plea negotiations do take place, a deal can be reached at any moment in the case, putting an end to the proceedings.

John Ingold is a co-founder of The Colorado Sun and a reporter currently specializing in health care coverage. Born and raised in Colorado Springs, John spent 18 years working at The Denver Post. Prior to that, he held internships at the Rocky Ford Daily Gazette, the Colorado Springs...