Will James Holmes face the death penalty?

This is a rush transcript from "Hannity," July 23, 2012. This copy may not be in its final form and may be updated.

SEAN HANNITY, HOST: Today, the world got its first look at the suspect in the Colorado movie theater massacre. But more questions were raised than were answered. Now, he did not speak a word or really interact with his defense team. So, will he try to plead insanity? And will the death penalty be on the table?

Joining me now to help us explain what the next legal steps are, Florida Attorney General Pam Bondi, the author of "Presumed Guilty, Casey Anthony, The Inside Story," Attorney Jose Baez and Fox News legal analyst Peter Johnson, Jr. is with us.

Guys, welcome all of you to the program. Peter, I turn to you.


HANNITY: We got into this a little bit with Greta, just to set the stage here.


HANNITY: You've read this law. You've interpreted this law. There are some unique qualities here that people need to know about.

JOHNSON: There are. It's very important and its topsy-turvy in the world of the law. As Greta was pointing out, if in fact the defendant says, I'm insane, then the burden shifts to the prosecution to prove that he is sane. But at the same time, the prosecution's hands are going to be tied by case law and recent cases in the state of Colorado. They will not be able to get their own psychiatric examinations of this defendant. So the defendant will be saying, "I'm insane, I should be determined to be not guilty," but at the same time, prosecution, you can't do your own psychiatric evaluation, not at all.

HANNITY: All right. Let me go. Jose, you are a great defense attorney. So, from your perspective and actually looking at it from my perspective as a non-lawyer here, it seems that they really don't have any choice. We know who did this. That is not really in dispute here. Do they have any other defense besides that?

JOSE BAEZ, ATTORNEY: Other than insanity, I would think not. If you look at this case, it's really not of who done it, it's more of a why was it done. And I think this case is going to boil down to a penalty phase, does he get life in prison or does he get the death penalty? I think that there is too much premeditation, too many calculated moves done by this defendant in this case to even pass on the insanity defense. I really think this is just simply a penalty phase in a death penalty case.

HANNITY: Yes. Pam, you come out of this from a whole different perspective as the Attorney General of Florida. Obviously, I think the public, there is going to be an outcry for the death penalty.


HANNITY: But then Peter is pointing out the challenges that the prosecution is going to have in this case as it relates to the death penalty. Does that enter the mind as they go forward with charging him?

BONDI: Absolutely, Sean. And, you know, it's very different in Florida, Jose and I can tell you. In Florida, the burden is on the defendant. And Peter, the defendant must prove by clear and convincing evidence. So, it's much different in Florida. And that is probably why we have hundreds of people on death row. And in Colorado currently, there are only three people on death row and all of which are from Aurora, which I find very interesting.

But Sean, yes, that's going to be factored in. And as Jose said, it's all going to come down I believe to the penalty phase because there was so much planning and deliberation. I mean, we know he planned this for months and months and months in advance. And not only at the theater, but at his apartment where he had trip wires and a sophisticated explosive device system set up.

HANNITY: Yes, you know, and Peter, this brings up a couple other points here. Because the premeditation is obvious. The meticulous planning is obvious.

JOHNSON: Go ahead.

HANNITY: There is certainly a degree of intellectual intelligence.


HANNITY: As I observed him today, I tried to look as closely as I could. I was listening to Greta's observations. I don't know if he is sociopath. He doesn't have a conscience, I don't know if he's medicated. Just seemingly slipping in and out of consciousness, moments I thought he was beginning to mumble to himself. Obviously lost in his head. What did you observe today and how does --

JOHNSON: I observed the same things that you did. And I was looking at carefully, is he a good an actor as Heath Ledger was in playing the role of the joker in the earlier Batman movie. I was looking for eye movements that are sometimes reflective of schizophrenia, which is a delusional disorder that would qualify for an insanity defense.

Is he an actor, is it real? Is he the greatest actor that we've seen in 50 years in the United States in terms of criminal defendants? Or was he on Thorazine or was he on Valium? At times it felt he was falling asleep. At times he looked like you and I might look if we're trying to stay awake.


JOHNSON: But keeping our eyes open.

HANNITY: As an untrained observer, I thought, it seemed real to me. I didn't see -- I was looking closely.

JOHNSON: And it's tough. Can you look into the face of a killer and know his or her heart or know his or her mind? And that's what a lot of Americans are looking at today.

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