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Lawyers for Colorado theater gunman renew efforts to toss death penalty

James Holmes sits in court for an advisement hearing at the Arapahoe County Justice Center in Centennial, Colorado June 4, 2013. REUTERS/And
James Holmes sits in court for an advisement hearing at the Arapahoe County Justice Center in Centennial, Colorado June 4, 2013. REUTERS/And

By Keith Coffman

DENVER (Reuters) - Lawyers for accused theater gunman James Holmes, who could face execution if convicted of killing 12 Colorado moviegoers last year, have renewed their push to have the state's death penalty law ruled unconstitutional, court documents showed on Tuesday.

In a series of motions, public defenders for the former University of Colorado graduate student challenged the statute on several fronts, saying state lawmakers have passed "a dizzying assortment of overlapping laws" regarding capital punishment.

Holmes, 25, is charged with multiple counts of first-degree murder and attempted murder for opening fire in a suburban Denver movie theater during a screening of the Batman film "The Dark Knight Rises" last July.

The shooting rampage left 70 others wounded or injured, some of whom are now permanently paralyzed.

Defense lawyers noted in one motion that Colorado has executed just one convicted murderer in 46 years, and all three of the state's death-row inmates were tried and convicted in the same jurisdiction where Holmes is charged.

"Imposition of the death penalty is rare, unusual, freakish and inconsistently applied," defense lawyers wrote.

Holmes has pleaded not guilty by reason of insanity. His lawyers have said in court filings that the California native was "in the throes of a psychotic episode" when he opened fire in the movie theater.

Defense attorneys also argued that aggravating factors that make a defendant death-penalty eligible under Colorado law, such as the killing of the youngest victim, six-year-old Veronica Moser-Sullivan, are likewise "capricious."

"While the intentional killing of a child under 12 is undoubtedly an incredibly awful and tragic event, designating death-eligibility soley on the status of the victim is unconstitutionally arbitrary," the motion said.

Previous motions filed by Holmes' public defenders seeking to have Colorado's death-penalty statute ruled unconstitutional - under different theories - have been rejected.

Prosecutors have yet to file their responses. In previous filings they said Colorado's death-penalty law has been upheld by higher courts.

Former Denver prosecutor and legal analyst Craig Silverman said the defense is unlikely to prevail on the constitutional questions at the trial court level. They are, however, setting up possible appellate issues should Holmes be convicted and sentenced to death, he added.

"You never know what argument might resonate with a particular appeals court judge or the Colorado governor," said Silverman, referring to Governor John Hickenlooper, who earlier this year granted a reprieve to the state's longest-serving condemned prisoner who was scheduled to be executed last month.

Holmes' trial is scheduled to begin in early February.

(Editing by Dan Whitcomb and Andrew Hay)

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