Aurora Theater Trial Background

This article was also published here, on the CU News Corps website.

By Peri Duncan // CU News Corps // Published April 23, 2015

The world will be watching Colorado over the next few months as the Aurora Theater Shooting trial begins Monday in Arapahoe County, nearly three years after the July 20, 2012, shooting.

In the first minutes of that morning, during a midnight showing of “The Dark Knight Rises” at Aurora’s Century movie theater, a gunman set off tear gas grenades and, wielding multiple firearms, opened fire into the audience. Twelve people were killed and 70 injured — it was Colorado’s deadliest shooting since the 1999 Columbine massacre.

James Eagan Holmes is charged with two counts of murder for each of the 12 fatalities and two counts of attempted murder for each of the 70 people injured. He is also charged with possession of explosives, which were found at his home on Paris Street in Denver, just a 10-minute drive from the theater. Judge Carlos Samour Jr. took 90 minutes to read the charges during jury selection.

This trial will decide whether Holmes will be sentenced to death, life in prison, or committed indefinitely to the Department of Human Services in a behavioral health facility.

On the final day of jury selection, April 14, Holmes wore his dark brown hair cut short, a mustache and glasses. He appeared to have gained considerable weight and sported a consistent ensemble of slacks and a button-down shirt. While the jury was on break, Holmes often moved around and laughed with his attorneys. In contrast, when the jury was in the room he was unemotional but attentive, generally looking down, his hands clasped over his stomach .

At the end of the day the defense also tried for a change of venue, but the judge denied it, stating that “the jury is seated. We can’t move this trial now.

The Procedure

In order for the jury to find Holmes guilty, the prosecution must prove beyond a reasonable doubt not only that he committed the crimes he is charged with, but also that he was sane at the time. If Holmes is found not guilty, the jury must decide if he is not guilty because the prosecution did not prove that he committed the crime, or that they did not prove he was sane at the time of the shooting.

If found not guilty by reason of insanity, the defendant will be committed to the Department of Human Services behavioral health facility. He would not be released from the facility until the court or a jury finds that he no longer has any abnormal mental condition that might make him a danger to himself or others in the foreseeable future. At the point that he is deemed “sane,” he would be released from the facility.

“There isn’t a specific time period until someone can be released,” said Laura, a nurse’s aid at the Behavioral Health center in Boulder Community Hospital, which has a policy of not releasing last names of staff so former patients can’t find them. “They have to show drastic signs of improvement before they are allowed to leave, and we must be convinced that they will not commit a crime again.”

Colorado’s legal definition of insanity states that a person is either:

  • “so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong,” or
  • “a person who suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of a crime charged.”

These definitions should not be confused with “moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions,” because the defendant is still to be held accountable by law in any of these situations. Further, “mental disease or defect” includes only severely abnormal mental conditions that extremely impair a person’s perception or understanding of reality that are not induced by the voluntary consumption of alcohol or any other mind altering substance.

Should the defendant be found guilty, the court will progress into a death penalty hearing. During this phase, the jury can consider all evidence presented in the guilty phase: victim impact, character, the defendant’s history and background, the nature of the crime, aggravating factors (which increase the severity of a crime) and mitigating factors (which decrease the severity or culpability of a crime).

This hearing has four stages: assessing aggravating factors, assessing mitigating factors, weighing the factors and checking their conscience.

During stage one the prosecution must prove at least one aggravating factor beyond reasonable doubt; if none are proven, Holmes will get a life sentence. Aggravating factors include but are not limited to:

  • killing two or more people during the crime with extreme indifference to the value of human life,
  • intentionally killing more than one person, and
  • creating a grave risk of death to persons other than the victims.

In stage two the jury will determine whether mitigating factors exist, including but not limited to:

  • the defendant’s age,
  • a significant impairment of his capacity to understand the “wrongfulness” of his conduct,
  • his emotional state at the time of the shooting, and
  • if the defendant has no significant prior criminal conviction.

The third stage of a death penalty hearing is weighing. The jury will determine whether the mitigating factors outweigh the aggravating factors. If they do, the defendant is sentenced to life in prison. Otherwise, the jury must unanimously find that the aggravating factors outweigh the mitigating factors in order to return a death sentence.

The fourth and final stage, which is unique to Colorado, is the morality clause. Former State Public Defender David Kaplan describes the fourth step as, “After all is said and done, the jurors must ask themselves, ‘Do you want to kill him?’”

The Jury

On the final day of jury selection 93 potential jurors were cut to the final 24. The jury was seated with 19 women and five men. According to a Pew Research Center Survey in March of 2015, 64 percent of men and only 49 percent of women approve of the use of the death penalty. David Lane, an attorney in Denver, believes that this will present a challenge for the prosecution.

“Statistically women are less likely to impose the death penalty than men; I would bet Holmes will get life without parole, not necessarily because mostly women are on the jury but because his lawyers picked jurors that are not madly in love with the death penalty; they are all supporters but many are reluctant to impose it,” Lane said.

Much of the jury is middle aged, from approximately 35 to 50 years old, and they come from all walks of life — from a union plumber to a dental assistant. But in the middle of the afternoon on the final day of jury selection, the defense challenged District Attorney George Brauchler because he struck three Latinos from the potential jury. The challenge was denied, and later the defense also struck two Hispanics. The final jury only contains one confirmed hispanic female; all other jurors are Caucasian as far as can be confirmed at this time.

Although the jurors have diverse backgrounds — a wide range of occupations and family situations — this jury is inconsistent with the makeup of Arapahoe County, which is one of the most diverse counties in the country. The 2013 Census reported that while 62 percent of residents are Caucasian, nearly 19 percent are Hispanic and 11 percent African American. If the jury were to accurately represent the county, it would include four or five Hispanics and two or three African Americans.

Juror #737 is the wildcard for both sides — his experiences make him impossible to predict, but both sides see him as a potential positive. A Caucasian male in his early 30s, he is self-employed and a survivor of Columbine. He was very close to the shooters at Columbine, Dylan Klebold and Eric Harris, until the eighth grade.

In a strange turn of events Juror #737 also took one of the victims, Rachel Scott, to Columbine’s prom just a week before the 1999 massacre. He has gone through 10 years of therapy and ultimately decided his experience would make him more capable as a juror.

All 24 jurors will be present during the trial, but 12 of them are alternates and only 12 will vote. None of them will know who the alternates are until they step into the room to deliberate, therefore they are all more likely to pay attention to the trial.

Colorado and the Death Penalty

In the past 40 years, Colorado has executed one person convicted of the death penalty: Gary Lee Davis, in 1997 by lethal injection. He was prosecuted in 1987 by former Adams County District Attorney Bob Grant. Nathan Dunlap, sentenced to the death penalty in 1996 after killing four people in the 1993 Aurora Chuck-E-Cheese massacre, still sits on death row.

Many factors have contributed to the number of death sentences in Colorado, including the appellate division of the public defender system, one of the best in the country according to Arapahoe County District Attorney Carol Chambers. Unrelenting and well-financed, they are well-practiced in battling the death penalty. Former Arapahoe County District AttorneyChambers even went as far as to say that the defense bar in Colorado makes the death penalty “many times more expensive than it needs to be.”

A 2013 University of Denver Criminal Law Review study found that ‘Life without Parole’ cases took an average of 526 days to complete; death cases took almost four calendar years longer — 1,902 days. Without even taking the appeals process into account, it’s clear that over five years of proceedings is going to be significantly more expensive than the cost of a trial over a year and a half. Because of Colorado’s tendency to either not follow through with or significantly drag out death penalty cases, it could take decades for a possible death-penalty verdict in the Holmes case to get enforced.


The parents of Alex Teeves, one of the 12 people who died in the Aurora theater shooting, have been integral in starting the NoNotoriety campaign. They discourage media from identifying the defendant by name after the initial identification, with the obvious exception being instances when doing so would aid in the assailant’s capture.

NoNotoriety’s goal is to “[deprive] violent like-minded individuals the media celebrity and media spotlight they so crave.” Notoriety and infamy are often motivating factors in mass killings and violent copycat crimes, the website continues. In accordance with their request, CU News Corps will be limiting the use of the defendant’s name throughout its coverage and will include a graphic with the names of the 12 victims alongside each story.


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