After spending days telling everyone who would listen that he thought James Holmes should get the death penalty for the massacre in Aurora, Colorado, lawprof Douglas Berman quoted an article stating that the death penalty is far from a certainty in the Holmes case.
Aside from the fact that most of Mr. Berman's posts are nothing more than the aggregation of articles from various sources regarding sentencing, the takeaway from the article is that there is an entire process that must be undertaken between arrest and sentencing to determine one's fate.
In his haste to be quoted, Mr. Berman seems to have forgotten that before we sentence someone in this country it is usually customary to hold a trial (or enter a plea) before anyone gets a chance to sate their bloodlust (see here and here).
For every shocking crime story that hits the news channel or the internet there seems to be a need for someone to stand up and pronounce sentence before we've even determined whether the alleged baddie is, in fact, the bad guy. It is a race to the microphone (or the keyboard) to proclaim to the world that the suspect de jour should get the needle or a thin mattress and metal bunk.
There's no need to analyze the evidence. No need to determine if the suspect had the proper mens rea for the alleged offense. No need to look at any mitigating factors. Nope. Time is of the essence. We must pronounce sentence now before the next big story knocks this one to the back page.
We are so attuned to the one-hour crime procedurals in which we go from crime to arrest (plus commercials) in just 60 minutes. But that's not how it works in real life. There are arraignments, pointless non-issue settings, motions hearings and pretrial conferences before we even get to trial.
People line up in front of the television cameras and claim they want "justice" now. Justice for what? Justice for whom? Do they really want Mr. Holmes and his attorneys to take advantage of the due process rights guaranteed him by the Bill of Rights? Are they prepared to accept a court's ruling in the event that Mr. Holmes' didn't possess the proper level of mental culpability?
Probably not. They want their friends, relatives and loved ones back. I don't blame them. But nothing that happens from this point forward will ever do what they want. Twelve people are dead and they will remain that way regardless of how this case finally works itself out.