DENVER - James Holmes' attorneys have filed a document saying he intends to enter a plea of not guilty by reason of insanity on Monday.
The document is titled "Notice of intent to tender plea of not guilty by reason of insanity."
Judge Carlos Samour responded quickly, with a document saying he will "give the defendant an opportunity during the May 13 hearing to establish 'good cause' to permit a not guilty by reason of insanity plea to be entered."
He wrote that the prosecution will also have an opportunity to respond before the court determines how to proceed.
"The definition of insanity in Colorado, (is) that they were incapable of distinguishing between right and wrong when they committed the acts," said legal analyst Dan Recht.
Holmes, a 25-year-old former University of Colorado graduate student, is charged with 166 counts in the July 20 massacre. The shooting, which occurred during a showing of the "The Dark Knight Rises," left 12 moviegoers dead and injured 70 people.
If allowed to change his plea to not guilty by reason of insanity, Holmes will be moved from the Arapahoe County Jail to the State Mental Hospital in Pueblo.
"They have to be advised that they are opening themselves up to an evaluation at the state hospital by state psychiatrists," said Recht. "The beginning of the evaluation will occur certainly within the next few weeks."
On April 16, Samour wrote an order advising Holmes what a plea of not guilty by reason of insanity would involve, including:
-"You shall be observed and examined by one or more psychiatrists during such period as the Court directs."
-"It shall also be permissible to conduct a narcoanalytic interview of you with such drugs as a medically appropriate (referring to 'truth serum'), and to subject you to a polygraph examination."
-"By pleading not guilty by reason of insanity, you place your mental condition at issue and thereby waive any claim of confidentiality or privilege as to communications you made to a physician or psychologist in the course of an examination or treatment for such mental condition…"
If the judge allows a not guilty by reason of insanity plea, the onus is placed on the District Attorney's office.
"The burden of proof is on the prosecution to prove that he was sane, not on the defense to prove that he was insane," said Recht.
Regardless of a plea change, Holmes would still potentially face the death penalty at trial. A jury would have a choice between finding him not guilty by reason of insanity, which would send him to the State Mental Hospital, or guilty which could include a sentence of life in prison or death.
Aurora police officers who testified in Holmes' preliminary hearing revealed that the suspected shooter was arrested behind Theater 9. He was spotted wearing body armor and he had a gas mask.
Holmes was allegedly armed with a rifle, two handguns, a shotgun and tear gas. According to testimony from an ATF agent, he also had several varieties of high-capacity magazines.
Recent court documents from the prosecution indicated they've provided the defense with more than 37,000 pages of documents related to the case and 436 optical storage disks of various formats. Those disks contain audio, video, photographs, business records, computer forensic reports and laboratory files.
There is so much evidence in the case that, for the first time ever, the Aurora Police Department has assigned a detective to work full-time organizing the information.
Included in that evidence are photographs downloaded from Holmes' smartphone, some of which was introduced as evidence at his preliminary hearing.
Some of the photos showed an orange-haired Holmes posing with several of the weapons allegedly used in the shooting. Other photos taken in the weeks leading up to the shooting showed the interior and exterior of the theater.
Not included in the evidence, however, is the notebook that Holmes mailed to his psychiatrist. The contents of the notebook have never been confirmed, although a Fox News reporter has published what she says two sources told her about the contents.
The notebook has been protected up to this point as a matter of doctor-patient confidentiality, but could become evidence if the insanity plea is entered and accepted by the court.
"The odds of that are increased by a not guilty by reason of insanity plea," said Recht.
Prosecutors declared on April 1 they would seek the death penalty.
Monday's hearing is scheduled for 9 a.m.