Make no mistake: Every person who enters an insanity plea must adhere to these procedures. The defendant must disclose the names, the reports, the notes, the tests of every psychiatrist or psychologist who has ever treated him for a mental illness. In addition, the state’s doctors get every therapist’s note, every interview, every document, or every test that Holmes’ own lawyers have given to a psychiatrist or psychologist. Holmes loses all confidentiality, and all medical or therapeutic privileges related to those exams, tests, or therapy sessions.

And that is just the beginning. After pleading insanity, Holmes must submit to psychiatric interviews, psychological tests, around-the-clock observations, even polygraphs, all performed by the state hospital psychiatric team. What the state doctors want, the state doctors get. He remains under examination for as many weeks and possibly months as the state experts require.

In other words, once the insanity defense is interposed, a defendant essentially waives all constitutional protections and is at the mercy of the medical team used by the prosecution, In the process of ascertaining whether Holmes is legally insane, they will have a free hand in gathering all the information that a prosecutor could possibly want to convict.

If it turns out that the state’s team agrees that the defendant is legally insane, then he will be committed for psychiatric treatment of his mental illness.  If not, and the court concludes that the defense failed to sustain its burden, then everything gathered in the evaluation process, all the rights waived and lost, is available for use against him.

Insanity in Colorado is risky business.

Holmes’ lawyers are challenging the constitutionality of these procedures. From the Chicago Tribune :

The defense said in a separate motion that if Holmes is required to provide information, it could be used against him not only at trial but in sentencing as well, should he be convicted.

In the motion, defense lawyers said they believe that portion of the insanity law is unconstitutional, and they cannot effectively advise their client until that legal issue is resolved, which they said has not been challenged before in Colorado courts.

“No published Colorado case law has examined the current provisions … regarding insanity and mental condition in the context of a capital case,” the motion said.

They’ve got a point. The forfeiture of the Fifth Amendment right against self-incrimination as the price of interposing an insanity defense is, well, crazy. As much as it may seem reasonable to allow the prosecution to test the merit of a defense of insanity, the question is how far they get to go. If the state’s psychiatric experts are permitted to question Holmes as to what he did, and Holmes is required to cooperate with their examination, then it is tantamount to compelling him to confess.

And if they decide that he may be totally nuts, but not legally insane, then there is little left to dispute.

That the issue arises in the case of a despised mass murderer comes as no shock. The rules are almost always tested by the worst among us, the most despised and hated.  There will be no shortage of people who feel no sympathy whatsoever for Holmes, and perhaps he deserves no sympathy. 

But the point of the insanity defense isn’t that the crime wasn’t horrible, but that the perpetrator of the crime suffered from a mental disease or defect that made him incapable of formulating the criminal intent necessary to hold him liable for his horrible crimes. As much as we may not feel badly for the crazy guy, the insanity precludes him from possessing the intent that makes him responsible for his crimes.

Of course, it’s understandable that the State of Colorado would want its opportunity to find out whether he’s as crazy as the defense experts claim. It may well turn out that he is, and that even the state’s experts will reach the conclusion that Holmes is legally insane.  But that’s a roll of the dice at this point, and if he loses on insanity, he loses on everything.

No matter how reasonable it may seem in a vacuum to allow the state the opportunity to test the claim of insanity, the law permitting such unconstrained intrusion must still pass constitutional muster. The prosecution’s argument, no doubt, will be that the defendant, by claiming insanity, voluntarily waives his privilege against compelled confession.

The response is that the Constitution assures every defendant, including the crazy ones, both the right to defend and the right not to incriminate themselves.  If the defense is insanity, it cannot come at the expense of compelled self-incrimination. 

To add insult to injury, the question remains whether the prosecution can doctor-shop until they find a psychiatrist who delivers them with the opinion on insanity they seek, and will be sufficiently helpful to provide them with the confession to boot.  If that’s the case, then the theoretical argument that the prosecution should have a chance to conduct its own evaluation is reduced to a sham inquisition.  That would be almost as crazy as Holmes.

Then again, many people don’t really care much about the Constitution or the mental state of the defendant when there are dead bodies on the ground. As far as their concerned, he rolled the dice when he started shooting, and nothing that follows should change him from coming up craps.

Update: Colorado Judge Judge William Sylvester has denied the defense motions. Move along. Nothing to see here.

H/T Stephanie West Allen at Idealawg.