By Keith Coffman
DENVER (Reuters) - The judge who will hear the capital murder case against accused Colorado theater gunman James Holmes has agreed to hear arguments on the constitutionality of Colorado's insanity defense law in death penalty cases.
Arapahoe County District Judge Carlos Samour Jr. ruled on Thursday that he will consider a defense motion that argues the law is unconstitutional because it bars Holmes from calling his own mental-health experts at sentencing if he refuses to cooperate with court-appointed psychiatrists.
Holmes, 25, faces multiple counts of first-degree murder and attempted murder for allegedly opening fire inside a suburban Denver cinema during a midnight screening of the Batman film "The Dark Knight Rises" last July.
The rampage killed 12 moviegoers and wounded 58 others, and another 12 people were hurt as they fled the theater.
Prosecutors announced last month that they would seek the death penalty for the California native if he was convicted, and defense attorneys are moving to change Holmes' standard not guilty plea to not guilty by reason of insanity.
Judge Samour ordered lawyers from both sides to present oral arguments on the issue at a hearing next week.
Earlier this year, public defenders had asked then-presiding Judge William Sylvester to declare the state's insanity defense law unconstitutional because it forces a defendant to cooperate with court-appointed psychiatrists.
They argued that compelling Holmes to possibly divulge information that could be used against him at trial and in sentencing violated his right against self-incrimination, especially in a death-penalty case.
Prosecutors countered that state and federal courts have upheld the legality of court-ordered mental health examinations for defendants who raise insanity defenses.
"It is well-established law in Colorado that submitting to court-ordered evaluation does not violate a defendant's Fifth Amendment privilege against self-incrimination," they wrote in a court filing.
Sylvester declined to rule on the matter at the time because the insanity defense had not been raised, and prosecutors had not yet indicated if they would pursue capital punishment.
Samour, who was assigned the case last month, ruled on Monday that there was sufficient cause to allow Holmes to change his plea. The judge said he would not be able to advise Holmes of the consequences of an insanity plea until all the legal challenges were resolved.
Former Denver prosecutor and legal analyst Craig Silverman said the judge recognized the legal issues the defense raised.
"It is unusual that the law says you can't raise any mitigating factors in a death-penalty sentencing," he said. "It's not obvious that such a sanction is constitutional."
The Colorado theater attack ranks as one of the deadliest U.S. shootings. Along with the December 2012 shooting rampage at Sandy Hook Elementary School in Newtown, Connecticut, which killed 20 children and six adults, it helped reignite a national debate on gun control.
(Editing by Cynthia Johnston and Paul Simao)
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