On March 22, 2021, three-and-a-half years ago, a 22-year-old man armed with a legally-purchased firearm entered a Boulder King Soopers and shot 10 people to death — including a police officer — before being apprehended. That killer seeks the opportunity to be free again through a jury trial.

Next week, men and women from Boulder will be questioned and selected by two sets of attorneys: prosecutors working to hold the killer accountable, and the killer’s defense attorneys working to minimize the sanctions for his conduct. The killer is charged with the first-degree murder of 10 innocent people. A conviction leads to a mandatory sentence of life in prison without the possibility of parole (LWOP) for each first-degree murder. Potentially, 10 life sentences.

A mass murderer caught at the scene of his heinous crimes has one option to avoid such a fate. He cannot claim self-defense, accident, alibi, or SODDI (some other dude did it). The only path to escape an eternity in prison is to plead not guilty by reason of insanity (NGRI), which is to claim he suffered from a severe mental disease or defect that kept him from, one, knowing right from wrong based on societal standards of morality, and two, from forming the intent to murder after deliberating on it.

That is exactly what the Butcher of King Soopers has done.

Colorado has seen this before. The Aurora Theater mass shooter our DA team prosecuted in 2015 pleaded NGRI after he was caught at the scene of his murder of 12 innocent people and attempted murder of another 70. The jury quickly rejected the NGRI defense in that case.

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For the King Soopers killer, the outcome to a NGRI verdict by the jury is commitment to the Colorado Mental Health Institute of Pueblo (CMHIP), but for only so long as it takes for mental health doctors to say he is no longer a risk to himself or others — and a judge would have to agree. The applicable statute mandates a request be made in as little as six months.

That is an easy choice for anyone facing forever behind bars, whether such a defense is legitimate or not.

The supermarket slaughterer was found by the court to be incompetent for more than 20 months. But so what? Incompetence is merely a finding that during the pendency of the case, the trigger-puller could not understand the nature of the proceedings sufficient to allow them to assist in their own defense. That is completely disconnected from the issue of insanity.

“Insanity” is not a diagnosis. It does not exist in the Diagnostic Statistical Manual 5th edition (DSM-V), the bible for psychiatrists and psychologists. It is a factual finding by the jury based on a legal definition. Colorado has the toughest prosecution standard for insanity in America. Four states have abolished the insanity defense, 35 place the burden of proving insanity on the killer, and only eleven — including Colorado — place the burden of disproving insanity on the prosecution. And the burden on Colorado prosecutors to disprove insanity is the highest in the law: beyond a reasonable doubt.

And yet, Colorado jurors have consistently rejected NGRI pleas by murderers, finding expensive expert opinions that conflict with the evidence and common sense create little or no doubt as to guilt. Also, jurors see NGRI as a way for someone whose evil conduct is undeniable to “beat the system.”

Though a just society must have the means to distinguish between those who act out of evil and those whose evil acts are the product of severe mental illness, we must take care not to treat them as mutually exclusive. One does not preclude the other, neither does one cause the other. A person can be both severely mentally ill and evil.

Meanwhile, it is worth noting Gov. Jared Polis, the ACLU and our offender-friendly legislature made certain this trial would happen, instead of a plea. Before Polis blessed off on the repeal of the death penalty under the cover of COVID in 2020, the public defender’s office would have offered to plead guilty to all charges to avoid death. No more. Every case of mass murder in Colorado will now require the victims and community to endure a trial regardless of how obvious the crime is.

“What about Club Q,” you ask?  That homophobic mass murderer pleaded guilty to Colorado’s state murder charges to avoid the federal death penalty that was on the table. That option does not exist here.

Finally, it was only a few years ago, in 2020, the Democrat-controlled state Senate passed out of the judiciary committee a bill that would have provided an avenue for early parole eligibility for any violent offender under the age of 25, as long as they were not convicted of first-degree murder. Thus, any conviction less than first-degree murder offers the possibility of parole eligibility in the future — and perhaps even earlier than we may think today.

These are the challenges to prosecutors who pursue justice and public safety in Colorado’s criminal justice system. These are the consequences of the votes we cast.

George Brauchler is the former district attorney for the 18th Judicial District and is a candidate for district attorney in the newly created 23rd Judicial District. He has served as an Owens Early Criminal Justice Fellow at the Common Sense Institute. Follow him on Twitter(X): @GeorgeBrauchler.