In Aurora shooting trial, insanity may be hard sell

Colorado theatre gunman James Holmes goes on ... 02:23

James Holmes goes on trial Monday, nearly three years after he killed 12 people at a movie theater in Aurora, Colo. His lawyers will argue Holmes was insane at the time, but that could be a hard sell.

The outpouring of grief is an indelible image for so many, though the passage of time since the July, 2012 shooting may help James Holmes because it's given time for passions to cool.

But justice delayed can also fuel its own kind of anger in a traumatized community, said Nancy Leong, an assistant professor at the University of Denver.

"Resentment can build," she said. "The community may be resentful about the fact that they have not had the opportunity to heal, that there hasn't been any kind of closure as the result of a trial."

Holmes' mental state key in Aurora massacre t... 02:24

The key issue: Was he insane when he pulled the trigger over and over? It is a difficult defense to pull off, more so in this case.

"The jury is going to hear 911 calls, the jury is going to see horrific pictures of what he did," said Leong.

That could overwhelm their instinct to feel sympathy for mental instability, Leong said.

"We all go to theaters. Anybody could have imagined themselves in this situation," she said. "It's scary to all of us because it's a situation we can all imagine ourselves having been in that theater and imagining the gunfire starting, and I think that's a very frightening possibility for a lot of people, and surely that has to have an emotional impact on the jury."

When Holmes appears in the courtroom here at the Arapaho County Courthouse, one thing that could influence jurors quite literally: How he looks.

"He had orange hair," said Leong. "He looked like a clown, literally."

He went from that orange hair to a bearded and a far more normal look. Jury experts like Jessica Brylo say looks can matter, a lot.

"The more crazy he looks, the less he can bond with the jury, the more they'll see him as an outsider different from them." said Brylo. "That can help in the sense that people might see him as being insane. But it may not help in the sense that then they don't feel he can be rehabilitated and put back on the street."

Whether that would help the insanity defense is a gamble, Brylo said, adding: "It could go either way."

If the jury rejects insanity and convicts Holmes, it must then decide on life or death by lethal injection. And surprisingly, jurors may not see death as the ultimate punishment.

"It could be the exact opposite of what you'd think," said Brylo, regarding life imprisonment being the tougher punishment. "Some people are now thinking that way."

The one thing even the defense does not dispute is that Holmes did it. The only real question for the jury is how will he pay for it.