A mass murderer apprehended at the scene of the crime with his guns has only one possible escape from the greatest sanction available under our law: “I’m nuts.” The Club Q mass shooter is a prime candidate to plead not guilty by reason of insanity (NGRI).

The facts as known do not lend themselves to a defense of SODDI (“some other dude did it”), self-defense, mistake of fact or many of the other “it’s not my fault” defenses attorneys use at trial. We do not yet know whether the “tox screen” done of his blood – presumably taken at the time he was arrested – reveals the presence of any intoxicating substances. That, too, seems unlikely, given his ability to successfully drive to Club Q; park without issue; operate his chosen firearms, and do what he did and said after he was stopped by heroic patrons and apprehended by the police.

It is likely that the public defenders assigned to represent the Club Q shooter already have had a mental health professional visit him in jail at least once and have begun the assessment of the alleged shooter’s mental health. Unless and until the shooter pleads NGRI, whatever the hand-picked shrink learns or concludes is kept secret from the prosecution and the judge.

Based on what they learn, an interim step for a defense committed to delay – which is the public defender model (and it works) – is to claim to the court that the shooter is incompetent to proceed. Competence is about the ability to understand the court stuff and meaningfully participate in it. It has nothing to do with sanity, which is measured only at the time of the crime.

Sanity is also a legal construct. There is no diagnosis of insanity, the way there could be for schizophrenia, bipolar disorder or bulimia. In fact, the presence of a diagnosed mental illness does not preclude that person from being sane. Even the claim that the shooter had “been awake for four days” is not enough to preclude sane conduct under our law.

Colorado has the toughest sanity statute for prosecutors in America. In most states, a defendant seeking to avoid death or a life sentence by claiming to be insane must provide some meaningful level of evidence to the court – such as clear and convincing evidence – before a prosecutor is required to put on contrary evidence. Not so in Colorado. Here, a defendant merely can plead insanity and the burden shifts entirely to the prosecution to prove the defendant is sane. Beyond a reasonable doubt, the highest standard of proof in the law.

That requires proof that the defendant is capable of two distinct things at the time of his criminal conduct. He must know right from wrong – not his own sense of right and wrong – but based on societal standards of morality. He must also be able to form the intent to – with mass shooters – murder after deliberating on it. If a jury finds that the prosecutor failed to prove either of those things, and the mass killer is found to be NGRI, he is sentenced only to a mental hospital until such time as he is no longer a risk to himself or others.

As we watch this case unfold in a courtroom, the shooter’s appearance and mannerisms are irrelevant. What he did at Club Q and immediately thereafter is.

The recently released affidavit gives strong indications that the shooter was sane. First, he lied to his mother that he was running an errand before they were to see a movie that evening, instead going to Club Q seemingly to shoot as many people as possible. He thought his mother would think what he was doing was wrong. Second, the ballistic vest indicates the shooter believed someone may use lethal force to stop him. He believed others in society would think what he was doing was wrong. Most significantly, the shooter was overheard apologizing after the shooting. He believed what he had done was wrong. As well, the weapons he obtained, loaded, fired upon the unsuspecting and defenseless, and reloaded are strong indicators of premeditation and intent.

While a successful insanity defense appears as likely as a successful Broncos offense, it would be crazy to underestimate the ability of experienced public defenders – from one of the fastest growing state agencies over the past decade – to use their skills, commitment to a zealous defense and near limitless budget to legitimately question the credibility and context of the evidence. This is why we have trials.

George Brauchler is the former district attorney for the 18th Judicial District. He also is president of the Advance Colorado Academy, which identifies, trains and connects conservative leaders in Colorado. He hosts The George Brauchler Show on 710KNUS Monday through Friday from 6 a.m. to 10 a.m. Follow him on Twitter: @GeorgeBrauchler.