It says a lot that as James Holmes opened fire on moviegoers in Aurora, Colorado, they did not know whether he was part of the film’s special effects, an opening night piece of eye candy tossed into the mix for a little extra thrill. The audience was there to see good versus evil, after all. When Holmes uttered “I am Joker,” some folks must have been just delighted. “The Dark Knight Rises” was going to be special.
Then the line between fantasy and reality collapsed. The blood on the floor was real. So were the dead bodies, and the screams of the wounded. It was no longer necessary to suspend disbelief to be caught up in the moral horror of it all.
So we wonder on this bloody day after, hungover as we are on yet another bloody rampage, who is this killer? Who is James Holmes?
The media quickly reported he had ties to no known terrorist group. He appeared to be a loner. He surrendered quickly and without violence to police, and then clammed up, invoking his right to counsel. Reporters then hit the streets looking for anything they could learn about the young man.
He is 24 years old. A college graduate from a solid, middle-class family in Southern California. He graduated with honors in 2010 with a bachelor’s degree in neurosciences, studying the ever-present and indefinable chasm between mind and body. Despite these credentials, the only job he could find was at a McDonalds. So he enrolled in a Ph.D. program in neurosciences at the University of Colorado. Academic difficulties are believed to have forced him out of the program. He’s had no meaningful brush with the law, and, although a loner, there are no reports he was suffering from mental illness.
All of which to say, James Holmes is one of us. He is not some mysterious alien who can safely be consigned to the category of other and forgotten.
But the morning after we are all moralistic blather. Let’s pass a new law to prevent another massacre. Let’s blame someone for not spotting the potential for harm. Let’s put police wherever folks may gather. Maybe movies are too violent. Maybe there are too many guns. Maybe there aren’t enough guns. For once, the only folks who made sense were the politicians: both presidential candidates suspended their campaigns yesterday, opting for silence in the presence of an awful, and seemingly inexplicable, event.
But perhaps the shootings weren’t evil come calling in a world otherwise good, true and beautiful. Perhaps a talented young man followed all the rules, did all he was told to do, and then entered adulthood only to find the rhetoric of our dreams did not match the reality he was expected to live. Twenty-somethings live, for the most part, a third-world sort of life amid our affluence: there simply isn’t enough good stuff to go around. Perhaps Holmes was lucky even to find work at McDonalds.
“The Dark Knight Rises” opened in 400-plus theaters across the company early Friday morning. It is another gaudy fantasy, pitting good versus an evil. Yes, we want good to triumph in the end, but the evil we slay has a disturbing familiarity. We are, after all, the Joker, each of us. He frightens out of a sense of shocked recognition. Fantasy, horror and fairy tales are simply genres in which we split our world in two and then reassure ourselves that conquest of the beast within is possible.
I am not entirely shocked that Jason Holmes took his private demons out for a very public walk. Frankly, I am surprised such things don’t happen more often. Look at the anonymous chatter online some time to see what psyches unmoored by restraint look like. People aching for validation are out there screaming all the time, most frightened out of their wits they’ll be swallowed whole by the rage within. Better to be anonymous than to own the rage.
Holmes is no hero, but his rage cannot be dismissed merely as the act of a lunatic. We celebrate violence, excess and an almost willful avoidance of reality. Rage is entertainment and evil a friendly flirtation. "The Dark Knight Rises" is expected to be box office triumph because we want the safety of seeing what evil looks like on the silver screen. What if James Holmes just wanted us to wake up? What if he wanted us to face the fact that our reality is largely a fantasy?
Am I alone in wondering whether federal prosecutors in Connecticut are abusing the grand jury process? When I discuss the issue with fellow members of the defense bar, folks get nervous. Blowing the whistle on Uncle Sam could hurt either them or their clients. Funny how the topic of grand jury abuse scares defense lawyers; it should scare prosecutors.
The federal constitution requires the government to seek an indictment, a decision by members of a grand jury that there is probable cause to believe a crime has been committed, before arresting one of us for a felony. Constitutional theory holds that a grand jury shields folks from arbitrary government conduct.
In recent years, it seems as though the grand jury has been transformed into a not-so-secret club used to coerce pleas. Here’s how the new game works.
A client is arrested by means of a criminal complaint. No grand jury hears the government’s evidence. A federal agent swears to an affidavit, and this affidavit accompanies a complaint written by a prosecutor to the chambers of a judge who may then sign an arrest warrant.
A citizen is transformed by these means into a defendant and hauled before a federal magistrate. At this initial appearance, the issue of bond is heard and a scheduling order entered. Because no grand jury has been sworn, the defendant is informed that he or she has a right to a probable cause hearing conducted by a judge in open court.
But here is the rub. When a prosecutor initiates a case by means of a complaint, he or she is free, within Department of Justice guidelines, to select the charges on which to proceed. Presenting a case to a grand jury ups the ante in some cases: prosecutors are required to charge the most serious offenses they think than prove. In other words, a defendant might well have a serious incentive to avoid a grand jury, where his or her sins might get a more searching, and consequential, review.
This incentive can yield the following dance: If a defendant refuses to waive the right to a probable cause hearing, prosecutors can threaten to rush the case to a grand jury before the probable cause hearing takes place. Remember, grand jury proceedings are secret: no defense lawyer stands in for the accused to confront government witnesses in these secret sessions. However, probable cause hearings are public, and a defendant’s lawyer can take a shot at the government’s witnesses. Assert your rights and suffer is the message.
I’ve seen the following tap dance: A defendant is arrested by way of complaint. He appears in court. The prosecution suggests that if he does not waive the probable cause hearing it will present his case to a grand jury before the hearing takes place. At that grand jury, the government will pull out all the stops, seeking the most serious charges and consequences it believes are supported by the facts. Translated into pragmatic terms: If a defendant wants a better deal, he should waive the probable cause hearing, eliminate the need to appear before a grand jury, and take his chances on whatever horse-trading his lawyer and the government can accomplish. The federal guarantee of a grand jury review of government charges becomes a threatened club rather than a promised protection against government abuse.
I do not know whether statistics are kept on how federal prosecutions are initiated in Connecticut. I rely here on anecdotal information. But I can say that in the past several years, it appears to me that more and more prosecutions are initiated without use of a grand jury.
This practice is particularly offensive in those cases in which the government builds its case by means of an investigatory grand jury but then elects to initiate an arrest without grand jury approval. At once, the secret grand jury, which is supposed to serve as a means of protecting people from the arbitrary use of government power, is transformed into the very sort of monster from which it was supposed to protect us.
Constitutional rights can be waived. Nothing prevents a person accused of a crime from cutting the best deal he or she can to salvage their life and liberties. But even so, use of the grand jury as a bargaining chip is not exactly what the framers intended. But who cares about them, right? Certainly not the courts.
Reprinted courtesy of the Connecticut Law Tribune.