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Prosecutors pursue two-track strategy against James Holmes in Colorado massacre

Prosecutors on Monday filed two sets of first-degree murder charges against James Eagan Holmes for each of the of 12 deaths that occurred during a theater massacre in Aurora, Colo., on July 20, effectively laying the groundwork for a fallback strategy in the event Holmes’ lawyers successfully mount an insanity defense.

The dual charges — "murder with deliberation" and killing with "extreme indifference to the value of human life" —  give the jury a choice of two avenues to a potential death penalty sentence under Colorado law, NBC's Pete Williams reported.

Under state law, murder with deliberation is equivalent to premeditated murder, while the "extreme indifference” charge covers actions that demonstrate "an attitude of universal malice."

It isn’t unusual for prosecutors to file two murder charges for one victim in Colorado, according to a prosecutor cited by the Aurora Sentinel.

"It’s very common for prosecutors to charge cases in all of the various ways that they believe they can prove a case," Karen Steinhauser, a former Denver prosecutor now in private practice, told the paper.

Holmes, who appeared briefly in court Monday morning to hear the charges against him, also was charged with 116 counts of attempted murder, as well as one count of illegal possession of explosives, according to court documents.

A former University of Colorado graduate student, Holmes is accused of carrying out the bloody attack on moviegoers at the midnight premiere of "A Dark Knight Rises" after wiring his apartment with enough explosives to have leveled the building if they had detonated.

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During his second appearance in court since his arrest, the defendant spoke once, saying "yes" to waive his right to a preliminary hearing within 35 days, according to a tweet by Denver Post courts reporter John Ingold.

The trial could turn on questions of Holmes' state of mind, Craig Silverman, a former chief deputy district attorney in Denver, told the Associated Press.

"I don't think it's too hard to predict the path of this proceeding," he said. "This is not a whodunit. ... The only possible defense is insanity."

According to the law in Colorado, defendants are not legally liable for their acts if they cannot differentiate between right and wrong, the report said. However, "Care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity or passion growing out of anger, revenge, hatred or other motives, and kindred evil conditions," the law stipulates, the AP said.

Drawn-out timeline
The court schedule suggests that Holmes will not enter a plea until at least the week of Nov. 12, NBC News' correspondent Mike Taibbi reported. The timing allows for deliberation on how much evidence will remain sealed from public view, including communications between Holmes and a psychiatrist at the University of Colorado.

Last week, law enforcement gained possession of a package that Holmes apparently mailed to the psychiatrist, Lynne Fenton, before the attack. Unconfirmed reports said that the package, which had not yet been delivered to Fenton, contained a notebook with writings and illustrations of shootings.

Holmes' attorneys said Fenton had been treating their client and that all communication should remain private under doctor-patient privilege. News organizations have asked the judge to unseal the contents of the package and communications between Holmes and Fenton.

Not until after the plea is entered would the prosecution announce whether it will pursue the death penalty for Holmes if he is convicted of first-degree murder. Prosecutors have said they would seek input from victims before making that decision.

The minimum sentence for first-degree murder in Colorado is life in prison, Taibbi reported.

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Holmes was enrolled in the neuroscience Ph.D. program at the university but withdrew in June. Neighbors said withdrawal from the program would likely have triggered his eviction from the building, which is reserved for people affiliated with the school.

Investigators said Holmes had amassed weapons, ammunition and explosives over the course of several months.

He was arrested in the parking lot of the Century Aurora 16 theater shortly after the shootings and told officers his apartment contained explosives, police said. That information prompted evacuation of Holmes' apartment building and those surrounding it until law enforcement teams could disarm the jumble of wires and explosive devices set to detonate by trip wires.

Police said he referred to himself as Joker, an apparent reference to one of the villains in the Batman comic series.

In his initial court appearance on July 23, Holmes was dressed in red prison garb, and had his hair dyed bright red. He looked off into the distance or down at the table, at times knitting his brow in a quizzical expression or as if he was trying to concentrate. He did not speak.

In this second appearance, no cameras were allowed in court. Holmes appeared with his hands and feet shackles according to the Sentinel. He was unshaven and his hair color had faded, it said.

Denver Post courts reporter John Ingold tweeted from the hearing that "Holmes was more put together today. His hair was combed — though still red. He seemed to pay attention. Not quite engaged, but listening."

According to another tweet from the courthouse from Coloradoan reporter Trevor Hughes, "suspect Holmes showed no reaction when judge told him he faces poss. death penalty sentence if convicted of murder."

The courtroom was packed on Monday, reported Denver Post staff reporter Kristen Painter, with an overflow room for victims and family who could not get in or did not want to be in the room.

Painter tweeted: "A woman, escorted by victims advocate, walked into courtroom crying-clutching a photo of 6-year-old Veronica & her mother," — a reference to Veronica Moser-Sullivan, the youngest victim to die in the shooting, and her mother Ashley Moser, who was critically wounded.

Holmes will not face an additional homicide charge for the miscarriage suffered by Moser after she was injured in the shooting, NBC's Leanne Gregg reported.

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