Al-Issa Makes First Court Appearance in Boulder

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Ahmad Al Aliwi Alissa, at the Boulder County Justice Center in Boulder, Colorado, March 25, 2021. (Helen H. Richardson/The Denver Post/Pool via Reuters)

The case is going to come down to al-Issa’s mental state.

Ahmad al-Issa made his first appearance in a Boulder, Colo., court today, after allegedly killing ten people on Monday. It was very short — probably less than five minutes.

When a suspect is arrested for a violent crime before formal charges have been filed, the first court appearance is technically a presentment, not an arraignment (even though it’s often misdescribed as the latter). There is no plea entered at a presentment. The plea happens later, when the accused is arraigned on an indictment, which is the formal manner of charging someone.

The presentment happens because the law requires an arrested person to be brought before a neutral magistrate, reasonably promptly — i.e., so he is not held interminably by police and prosecutors, unduly pressured into confessing, etc. At the presentment, the court simply advises the suspect of his rights, makes sure the suspect is aware of why he has been detained, ensures that counsel is appointed if the suspect cannot afford to retain a lawyer, and sets bail if that is appropriate under the circumstances.

The centerpiece of the proceeding, which is typically brief, is a complaint, usually sworn out by one of the arresting officers. It sets forth the charges the prosecutor believes are warranted and outlines enough detail about the supporting evidence to satisfy the court that there is probable cause to justify the arrest. The complaint in the Boulder case is here. It charges al-Issa with ten counts of murder and one of attempted murder.

Bail is obviously not an issue in this kind of case. Prudential formalities dictate that we refer to a “suspect” who “allegedly” murdered ten people. Here, however, there is no real question about what happened and who did it. The case is going to come down to al-Issa’s mental state: Was he impaired to such an extent that he could not distinguish right from wrong and thus may not be held responsible for the atrocious murder spree? And, relatedly, his lawyers are also apt to contend that, whatever his mental state may have been during the shootings, he is now too impaired to avail himself of the constitutional right to assist in the presentation of his defense.

This is why the matter of ideologically driven terrorism, which I discussed in yesterday’s column, is germane. Prosecutors are never required to prove motive in a case of intentional murder; all the law calls for is proof beyond a reasonable doubt that the accused intended to kill. But the prosecutor is always permitted to offer motive proof, and where such evidence is convincing, it bolsters the intent proof. Brutality should not be confounded with insanity. A violent ideology can provide a rationale that shows the accused understood exactly what he was doing when he committed a mass murder.

As noted yesterday, al-Issa is a Muslim, but there is not, at this point, convincing evidence that he had sharia-supremacist leanings. Yes, the murder-spree mirrors past jihadist attacks, but that, by itself, is not conclusive evidence that this was a jihadist attack — not in a courtroom, anyway.

On the other hand, the investigation is continuing. It is worth noting, as the New York Times has intriguingly reported, that al-Issa’s identity was known to the FBI before Monday’s killings because he is somehow linked to someone the Bureau has been investigating. Not only has this person not been publicly identified, it has not even been reported whether the person was a terrorism suspect, or whether the FBI’s investigation pertained to terrorism. We will have to see what, if anything, develops on this score. For now, we should note that this remains a state murder prosecution, not a federal terrorism prosecution.

These are early days in an investigation that has a long way to go. As it proceeds, the 21-year-old al-Issa will surely be detained pending trial, and almost certainly for the rest of his life.

Colorado abolished the death penalty in 2020. This has a significant effect on the dynamic of plea negotiations in first-degree murder cases. In a jurisdiction that has capital punishment, the accused has an incentive to plead guilty to an offense that carries a severe incarceration term, even life-imprisonment, in order to get the death penalty off the table. In Colorado, that is not the case. So, al-Issa and his counsel are likely to pull out all the stops, litigating mental state and everything else to the hilt, because for the state, there will be no trading down from life imprisonment. Such cases often go to trial, even though the chance of acquittal is minimal.

The next thing that would ordinarily happen in the case is a preliminary hearing, in the upcoming weeks, where a judge will rule that there is enough evidence to proceed. There will then be an indictment. Unlike in the federal system, the state of Colorado does not require that an indictment be voted by a grand jury. Instead, prosecutors have discretion to file the formal charges, but they also have the option to use grand juries and sometimes do in cases of great public interest.

In any event, there is a great deal of litigation ahead, particularly on the question of al-Issa’s mental state. This is going to be a long haul.

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