Aurora theater trial recap: Week 2

Dr Max Wachtel is a Denver psychologist who regularly comments on psychology matters for 9NEWS. He has extensive experience with the psychological aspects of criminal cases. Dr Wachtel is providing frequent commentary on the theater shooting trial on 9NEWS and 9NEWS.com, which is a mixture of professional analysis and his personal impressions of this case.

ARAPAHOE COUNTY - After an incendiary first week that had surprising revelations from the opening statements, attorneys yelling at one another, the judge and a defense attorney bickering, and the DA holding his head in his hands by late Thursday, Week 2 seemed tame in comparison.

The prosecution is still in the beginning of its case. They need to prove every element of every charge leveled at the defendant, and they have a long way to go. Whereas week one was all about the emotion, prosecutors started pacing themselves this week.

There is a lot of unemotional (and potentially boring) testimony the jury needs to hear, and some of this information started coming out in court this week. Bomb squad officers testified about the technical aspects of their jobs. Former coworkers testified about the social ineptitude of scientists. A gunshot residue expert testified about particles.

With this important, but emotionally safe, testimony, it was easy to let my guard down. Right when I was lulled into thinking, "This is just another legal case," I would get punched in the gut by the emotional testimony of a victim. We have heard so many heartbreaking stories already, and there are so many to go.

Personally, I was on edge this week. I had a close, personal connection to one of the 12 people killed in the attack, and I suspected there might be testimony about him this week. I was right.

It was a stark reminder to me that, for every victim who testifies, there are dozens of people who know and care about that individual who were also affected by this tragedy. This is not just another case. This is a trauma that will haunt the lives of thousands of people for a very long time.

For every gunshot residue expert who testifies, there will be hundreds of people who have bits of that residue stuck to them—stuck to their hearts, clinging to their minds.

And along with the emotional stress it can have on individuals and on the community, it is also a news story. People are interested, for obvious reasons. As promised, I will answer the most salient questions that come up each week from viewers.

Here are the big questions from week two:

What is the psychology behind all of the defense objections?

It can be painful (or gleeful, depending on your thoughts on this case) to watch the defense raise the same objections over and over again, only to be overruled each time. Why don't they just give up?

There are two potential reasons for this. First, they probably really believe the questions the prosecutors are asking are inappropriate under the rules of evidence. In most cases, Judge Samour disagrees, but if they think the questions are improper, defense attorneys have a legal and ethical obligation to object.

Second, and most importantly, the defense attorneys understand that Judge Samour is human. If they continue to object to questions on the same grounds, over and over and over again, he might change his mind and sustain an objection once. At that point, whether on purpose or by accident, he will have established a precedent—the defense can use that precedent to completely shut down parts of the prosecution's case strategy from that point on (for example, "Your Honor, you previously ruled this line of questioning to be improper, yet the prosecution is doing it again…").

It's like when your kids ask you for candy 25 times and you continue to refuse. You might break down and say yes on the 26th time, at which point they know they've got you.

Why does the defense's case seem to be going so badly?

A lot of people have been questioning the defendant's defense team after the second week of the trial—they seem like they are unprepared, they aren't as passionate as the prosecution, their objections are being overruled constantly (see above). Why are they doing such a bad job with their case?

The simple answer to this question is that it is not their case. It is the prosecution's case right now. The State is presenting its argument against the shooter, and they are in almost complete control of the courtroom—they call the witnesses, they ask the questions, they choose the pace. They are alternating between slow, technical testimony and heart-rending, emotional testimony. At this point, the defense is just along for the ride. Their goal is damage control.

When the prosecution rests its case, the defense will present its version of events. Although defense attorneys are not required to present any evidence, they almost certainly will. You may be surprised at good they become all of a sudden. There may even be times when you start to wonder if maybe the shooter really was insane after all.

How can the defendant be insane? He clearly knew what he was doing.

If you have found yourself wondering this over the past week, you are not alone. This is the most common question I have seen on social media or heard from viewers this week.

It is a reasonable question to ask. After only two weeks of testimony (and with months more to come), the prosecution is doing a good job of erasing doubt in people's minds about whether or not the defendant knew what he was doing. He is a smart guy. He planned for months. He was meticulous. He bought all the right equipment. He created homemade bombs that were crude but brilliant. He needed to deliberate in order to accomplish all of that. He needed to know his actions were going to harm others.

So, is it possible for a person to be insane if he knew what he was doing and if he was able to deliberate and plan?

The answer to this question is an unequivocal yes.

I have previously written about sanity laws in Colorado for 9News, but it boils down to this idea: To be insane, you have to either have no idea what you are doing, or you have to not know right from wrong.

It is possible for a person to have a mental illness (in legal terms, it is refered to as a mental disease or defect) and know that his actions are going to kill a lot of people but not understand that those actions are wrong. If this is the case, that person is insane and legal statutes require him to avoid being found criminally responsible for his actions.

Now, the jury might not buy the argument that the theater trial defendant did not know right from wrong, but that is the crux of this case.

The defense will argue that, even though he knew what he was doing, he didn't know it was wrong. The prosecution is making the case that he knew what he was doing, and soon they will call experts who will testify that he knew his actions were wrong.

We will have to wait and see what is in store for Week 3. Given the number of charges and the meticulousness of the prosecution, it is likely we will be hearing a lot more of the same for many weeks to come.

Dr. Max Wachtel is the 9News Psychologist and a forensic psychologist in private practice. He is the author of The One Rule For Boys.

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