ARAPAHOE COUNTY — — Denver Post reporter Elizabeth Hernandez’s updates from Day 52 of the Aurora theater shooting trial at the Arapahoe County Justice Center in Centennial, Colorado.
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Day 52
From Elizabeth Hernandez: Now that jurors have convicted James Holmes of murder in the Aurora theater shooting case, the trial’s next chapter will begin today: the penalty phase.
Jurors will not be back in the courtroom until Wednesday morning, but the attorneys and Judge Carlos Samour Jr. will meet in the courthouse Monday morning at 9 a.m. to begin discussing jury instructions for deliberations on the death penalty.
The penalty phase of the trial has three possible parts, and the same 12 jurors would deliberate at the end of each part.
The first focuses on aggravating factors, such as the killing of a child. The second would deal with mitigating factors that the defense will present. The final phase, if needed, would deal with whether jurors sentence Holmes to death or life in prison without the possibility of parole.
At 2 p.m., Paul Carrer, a defense mitigation witness, will record a video deposition that will be shown to jurors in defense of a life sentence for Holmes.
A court document indicated that prosecutors noted that the jury would not be able to ask Carrer questions in a video deposition.
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9:14 a.m.
To begin with, Judge Samour greeted the attorneys gathered in the courtroom at 9 a.m. He began discussing jury instructions that would be given to jurors on Wednesday when they come back to the courtroom to begin the penalty phase of the trial.
Samour said he will instruct jurors that regardless of the verdict at the first trial, no juror is required to sentence James Holmes to death.
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9:41 a.m.
Next, Samour and the attorneys began discussing the phase 1 final instructions that he drafted and shared with attorneys late Saturday.
“I want to thank both parties for their work on instructions,” Samour said.
After e-mailing that draft Saturday, Samour said he did change a few things in the jury instructions.
Defense attorney Kristen Nelson said she had some issues with the instructions that she wanted to discuss regarding “the issue of murder.”
“If there’s something you think I need to change or add, I’ll leave that to you to point it out for me,” Samour said.
Nelson proceeded to discuss the merging of counts of felony murder and murder in the first degree.
“It’s an impermissiable doubling up” to make the jury decide for 24 counts of murder instead of 12, Nelson said, due to the felony murder and first-degree murder accounts for each of the 12 murder victims.
Prosecutor Rich Orman disagreed, saying he is concerned that down the line, the defense would argue that the death penalty should not be allowed for the crime of extreme indifference murder and that, because the counts were merged, they would argue that the defendant would not receive the death penalty.
The legalities behind the merging of murder counts and the jury’s understanding of the counts were being debated.
“In the end, it’s the court that formally enters whatever sentence the jury decides upon.”
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9:47 a.m.
The main issue, Samour said, with merging the murder counts in the jury insturction was deciding if the jury was imposing the sentences or if the jury rendered a verdict as to what the sentence should be and then the court imposed that.
It’s the latter, not the former, Samour said.
Samour said he believed the defense was worried about the defendant being convicted of two convictions for one crime and that’s going to be avoided regardless of the way the defense or the prosecution is asking to do it.
“I’ll stick with the way I have it,” Samour said.
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10:03 a.m.
Samour and Nelson are discussing whether the definitions to terms such as “consciousless,” “pitiless” or “unnecessarily torturous to the victim” should be defined in the jury instructions.
They are discussing whether juries need definitions on these terms and others found within the jury instructions.
These terms would be found when describing an aggravator in the death penalty phase.
Samour feels that the jury would be able to understand these terms without the need of a definition.
Nelson then argues that the jury instructions should separate each aggravator instead of including them together.
Samour said that would be confusing for the jury because the people only have to prove at least one aggravator and if they are separated, “it gets confusing.”
Samour said many of the issues Nelson is bringing up about the jury instruction would make the instructions repetitive and confusing.
Nelson said some of the descriptions that explain the aggravators in shorthand do not capture the aggravators properly and she would like them deleted. Samour said he does not want to refer to them simply by number, and that the descriptions are helpful to jurors in understanding which aggravating factory they are discussing.
Samour added the word “intentionally” to the aggravator of “killing a child under 12 years of age” after a request by Nelson because Nelson said it was previously ignoring the “intentional” mental state of the killing.
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10:21 a.m.
During the teasing out of jury instructions between Judge Samour and the attorneys, there is a case that continues to be cited in comparison: Nathan Dunlap, the ex-Chuck E. Cheese employee who killed four in a 1993 shooting rampage at the Aurora restaurant-attraction. Dunlap is on death row.
Judge Samour and the attorneys will now start at the beginning and go through the final phase jury instructions.
Nelson asked the court to consider deleting a paragraph with the term “the guilt trial” to avoid bringing attention to that.
Samour said he wrote it that way for both sides’ benefit and does not see a problem with it, but he granted Nelson’s request.
The defense has another issue with language regarding merging the murder convictions, and Samour said he has ruled on that already. Samour makes a compromise.
Most of the conversation between the defense, the prosecution and Samour this morning has been debating language and the way the jury instructions could inappropriately sway a juror’s decision through their wording.
Samour has made it clear that he is concerned about keeping the instructions clear and consistent.
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10:41 a.m.
“I very much appreciate all the hard work that both sides have done in the instructions,” Samour said.
As the attorneys and Samour continued to discuss the language of the jury instructions, Samour said both the defense and the prosecution have considered issues thoughtfully.
The defense raised issues about instructing jurors regarding the evidence they can consider. The defense reminded the court that the jury was not allowed to consider evidence admitted for the sole issue of the insanity defense and did not want language to confuse them on this point.
Samour said it sounds like the neither side is intending to bring in evidence for the next phase of the trial.
As the attorneys and the judge continued to go over the instructions, James Holmes appeared to be reading the instructions intently.
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10:53 a.m.
Judge Samour and the attorneys finished discussing the final phase one sentencing instructions for the jury close to 11 a.m.
Most of the discussion debated wording and language that could influence the jury’s decision in the penalty phase.
Throughout the discussion, the defense proposed several different modifications.
Prior to wrapping up, the defense asked that the defendant be referred to as Mr. Holmes instead of “the defendant”
Nelson said Holmes had the right to be “treated as a uniquely individual human being.”
“I’ll refer to him as the defendant,” Samour said, noting that this would be consistent.
The court went into recess at 10:52 a.m. for a break.
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11:43 a.m.
Around 11:30 a.m., court was back in session as Judge Samour reminded the courtroom that the break was issued to give attorneys time to review the instructions for jurors during the sentencing hearing.
The courtroom is now going to discuss the introductory instructions the judge intends to give at the beginning of the sentencing hearing.
“Members of the jury, now that the trial has been completed, we are starting the sentencing hearing,” the instruction begins.
The prosecution began discussing the defendant’s rights to testify in all three phases of the penalty hearing.
Judge Samour began talking about the decision to split the penalty hearing into three phases based off of remarks by the prosecution.
“I think it’s too much to ask of jurors all in one shot,” Samour said.
“If anybody thinks it’s a mistake to do this in three phases, now is the time to tell me,” Samour said.
“I can always change my mind,” Samour said, even though the jury has already been told there will be three phases.
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11:52 a.m.
Grammar and wording are being debated again in the courtroom regarding the instruction language.
The defense is concerned that the current language does not make it clear enough that the jury is able to vote on a life sentence instead of the death penalty.
“I don’t think any juror is going to be under the impression that they won’t be able to vote on a life sentence,” Samour said.
Orman said that, obviously, the jury needs to be informed that they need to be satisfied beyond a reasonable doubt that death is the only sentence if that is what they decide, but the judge and the prosecution believe that the jury already understands that and that it is made clear without the further instruction that the defense requests.
“The defendant’s language implies that there is a burden of proof,” Orman said, and he does not think their request is appropriate.
Telling the jury that there is a presumption of a life sentence, Samour said, would confuse the jury because it would indicate that the people have to overcome that presumption, proving a burden of proof.
“What needs to be conveyed is that they can only return a sentence of death if they are convinced beyond a reasonable doubt that death is the only sentence,” Samour said.
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12:01 p.m.
During the language debate, the defense has a request to take out lines instructing the jurors to be fair and neutral. The defense feels that jurors should go into the trial with a presumption of a life sentence being the same thing as going in with a presumption of innocence.
“The jury doesn’t have to start in a neutral state and be convinced down,” Nelson said.
Judge Samour and prosecutors disagree.
“We can’t have jurors going into the sentencing hearing already thinking this should be a life sentence,” Orman said. “There’s no basis for that.”
The judge said he does not think instructing on a presumption of innocence and a presumption of a life sentence are the same thing.
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12:13 p.m.
The defense and Samour are struggling to understand each other regarding language changes to the instructions.
“I don’t even follow that objection,” Samour said.
As discussions continue, the defense asked for specific language letting the jury know that it is “perfectly acceptable” to stop after phase one or stop after phase two.
“We think that’s important to convey at the end of every phase — that the hearing would not be incomplete,” Nelson said.
“I think that point is clear.” Samour said. ” I don’t think I need to say to them that the law is satisfied if you do one thing and the law is satisfied if you do the other thing. I don’t see the need to do that.”
The defense then asked that it be conveyed in the instructions that mitigation doesn’t have to come from only the defendant, that it can come from any source.
Orman said that it has to come from the trial.
“It can be evidence that we presented, but I think that if any source implies that they could read a book or listen to a song on the radio and that that’s something they could consider. I think the way the court has drafted this, it conveys the law correctly,” Orman said, disagreeing with Nelson.
“I agree that in part this is a moral decision, but it has to be anchored in evidence,” Samour said.
“It can’t just be that jury comes in and says I’m going to vote for a life sentence, not because of anything presented in the courtroom, but because on my own I feel that I can’t vote for a death sentence. That’s not what the law is.”
Samour said the whole point of going through the jury selection process was to avoid that kind of thinking.
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12:35 p.m.
The defense and Samour argued over semantics in the jury instructions.
Both citing different Colorado Supreme Court Cases, the defense is arguing for different wording regarding mitigating factors and aggravating factors that could influence the way the jury understands their duties.
“My sentence is more complete,” Samour argued.
The defense then took issue with a section that discussed the jury deciding weights to give mitigating factors.
“The weighing process is not a mere counting process and their decision should not be mechanical or mathematical,” Nelson said, who wanted that sentence added.
Samour agreed, adding the sentence to inform jurors.
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12:50 p.m.
With more requests from the defense to alter, add, or remove language from the jury instructions, Nelson said she is arguing for these changes because of a heightened level of reliability required to convey to jurors from the 8th Amendment.
Samour said he understood that and that is why he is taking his time.
“We’re going almost sentence by sentence,” he said.
The court began to have an argument about morality and its place in the trial.
Nelson argued that morality came from within and that it is not necessarily based on evidence and that the wording in the instructions did not address this.
“This is not about their morality,” Samour said. “This is their moral judgement that they make in this case.
Samour said jurors cannot forget the evidence and the court instructions in place of their moral stance on the death penalty.
“That’s exactly what jurors cannot do.”
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1:01 p.m.
The defense is concerned that the language within the jury instructions conveys that reaching a verdict of life in prison without possibliity of parole is “somehow failing their duties.”
From the instruction, Nelson asid “they might get the impression they need to be working toward a unanimous verdict which is not the case,” noting that the jury has to unanimously agree upon a verdict of death.
“I don’t have that concern that you have,” Samour said.
Nelson wants to make it clear that the jury coming to a verdict of life in prison without the possibility of parole is “perfectly OK.”
Samour said the jury understands that and that it is made clear within the instructions.
“I think it says it three ways from Sunday, and we don’t need to say it anymore” Orman said.
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1:12 p.m.
After discussing more language alterations, specifically about the evidence and information that the jury will be basing their verdict off of, Samour called a lunch break around 1:09 p.m.
The introductory instructions for phase one were wrapped up, and Nelson made it clear that she would like to get through a discussion of the introductory instructions for phase 2 so that the court could move straight from phase one into phase two of the sentencing hearing.
Samour agreed, saying that now that they have gone over the phase one instructions, he believes that would solve most of the issues that would be raised in the phase two jury instructions.
The court will resume when the lunch break is over.
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2:10 p.m.
After wishing everyone a good afternoon, Samour introduced a video deposition of Paul Karrer who was unavailable to testify due to a “prepaid vacation” that would render him unavailable during the hearing to testify.
The jury will not be able to ask questions due to the video.
“The defense calls Paul Karrer to the stand,” the defense said.
Samour swore Carrer in,
“I’m nervous, Karrer said.
Karrer lives in Monterey County, in the middle of California.
Karrer teaches 5th grade and has been a teacher for more than 30 years.
Karrer had Holmes in his fifth grade class in 1998 to 1999.
“It’s difficult to call him James or even Mr. Holmes. He’s Jimmy to me,” Karrer said.
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2:20 p.m.
Karrer says fifth grade is a good age. The kids don’t even know sex or drugs yet. They become unpleasant later. They’re very admiring. They put little chocolate bars on your desk. They’re sweet and kind.
Rebekka Higgs: Are they with you all day?
Karrer: Yes.
The prosecution objected to Higgs referring to the defendant as “Jimmy” when asking Karrer questions.
Samour said the witness could call him that if he pleased, but that the defense would need to refer to Holmes as the defendant or Mr. Holmes.
Higgs asked to approach the bench. The objection remains sustained.
At the time, the elementary school had about 500 kids, and Karrer said it was a very small community. He said it was very rural.
Higgs approached Karrer with a document that she described as the yearbook class photo that had Holmes in it.
Karrer said the names were marked out for privacy reasons, but that it otherwise accurately reflects the class.
The photo should say grade five, but it says grade three in a typographical error.
A small group of kids is called a cohort, Karrer said, and the cohort that was far above average was just phenomenal in this class.
“Jimmy was one of them and he, to be honest, was the leader of the pack,” Karrer said.
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2:26 p.m.
Karrer said he kept in touch with some of the students from that cohort and that he had talked to the students with Holmes. He said after talking to the students, he remembers things about Holmes.
Karrer said he has not kept in touch with Holmes since fifth grade.
He said there were five to six of them and they had a wonderful, competitive ability to pull themselves up and improve the performances of the “low performers.”
“It was a pleasant rivalry,” Karrer said.
Higgs asked Karrer to describe specifically Holmes within that group.
Karrer: I recall that he was very pleasant. He smiled. He was a smiler. Well kept. Dressed neatly. Caused me no grief. The kids liked him a lot. There was no dark side. I trusted him a lot. He and another kid were really running things and they had this rivalry going, so they finished their work all the time and it wouldn’t be wrong. What do you do?
Karrer said the kids asked if they could build a website, and I said OK, what’s that?
They wrote code. Jimmy and Chris did a website, and they did the coding, and I trusted them to do that.
“It was way out of my ability.”
Higgs: It sounds like Mr. Holmes did a little teaching himself.
Karrer said Holmes and his classmate put on a world that rotated on the website so that parents and the kids could see what homework was, what are we going to do on field trips and other class updates.
Karrer said he was very impressed.
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2:36 p.m.
Higgs: Did Mr. Holmes appear to thrive?
Karrer: He did really well. He got awards regularly.
Higgs is talking about a report card for Holmes that Karrer is looking at — it covered the first three semesters of that year.
It’s an assessment of academics and Holmes has all A’s and two B’s for that semester.
First semester, Karrer’s report card for Holmes said: Wow, what a neat kid. Handwriting is serious. He’s on the teacher’s honor roll.
Second semester, Karrer read the report card as: 8 A’s, Two B’s. Jimmy can get sloppy with his writing.
Karrer said Holmes was consistently on the teacher’s honor roll and he did not have a word about negative behavior on the report card because it wasn’t an issue.
On a positive note to Holmes’ parents, a note said “Dear Holmes, thanks for letting Jimmy set up my computer.”
The second note was a note about a project Holmes did. “Great project, thorough questions and interesting.”
Karrer said Holmes was able to work independently and was a good student all the time.
Karrer said he does not remember any big disruptions that Holmes caused in class. He said he does not remember meeting Holmes’ parents, and that that is a good thing because Holmes likely was not disciplined at a parent and teacher conference.
Karrer said he used to race with the kids, and Holmes was the first kid to beat him in a race.
“The kids in a class wouldn’t let me forget it.”
Higgs asked what impressed Karrer the most about Holmes.
“He was high ability. He was balanced. He had it all. He was like a renaissance child. He had academic ability. The kids liked him. They played together.”
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2:39 p.m.
“Kids have a reputation that comes to us from the previous class, and if there was trouble, I would have heard it,” Karrer said.
Higgs asked Karrer if he treated his students as his own kids.
Karrer: I always do. I still do. I help many of them still. I have some that go to prison and I visit them during the summer. I maintain contacts with my kids.
Higgs: Can you tell the jury why you came to testify?
The prosecution objected to this question, so Higgs and the prosecution are talking with Samour at the bench.
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2:46 p.m.
The objection is sustained in part and overruled in part.
Higgs asked Mr. Karr if Holmes had an impact on him back when he was his student.
Karrer said Holmes is the kind of kid that makes teaching very rewarding.
Karrer said he cared about him and continues to care about him, and that is why he is here testifying.
Higgs talks about a video of an award ceremony that Karrer and Holmes were at together during their school year together.
He had 100 percent attendance for this award ceremony, Karrer said.
The prosecution interrupts the questioning between Higgs and Karrer regarding the award ceremony video and asks to approach the bench to speak with Samour.
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2:53 p.m.
Higgs asked,” Do you think the kid you knew as Jimmy was a positive influence?”
Karrer said Holmes was a positive influence on the students and on him.
Karen Pearson from the prosecution then got up to ask Karrer some questions.
Pearson noted that Karrer said he had to be reminded by other students about some of Holmes’ actions.
“Are some of your recollections based on them remembering things?” Pearson asked.
Karrer said they were not, that the students only refreshed his memory.
“Would it be fair to say the only reason you can identify him would be photographs from them on the news?” Pearson asked.
“He looks pretty much the same,” Karrer said.
“As he did in fifth grade?” Pearson asked.
“Yes,” Karrer said.
Pearson asked if Karrer knew what kind of person Holmes became after fifth grade and beyond into middle school, high school, college and graduate school.
Karrer said he did not know.
Pearson was then finished examining Karrer, and Samour called for a 10-minute recess in court.
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3:18 p.m.
Court resumed at 3:08 p.m. after Karrer gave his witness testimony.
They are beginning to talk about the juror introductory instructions for phase two of the sentencing hearing.
“My inclination is to draft something consistent with the introductory remarks we drafted earlier at least as they related to phase two,” Samour said.
Samour noted that much of the language between the two set of instructions is similar.
“I may add that a mitigating factor is not a justification or an excuse for a crime,” Samour said.
The defense and Samour started hashing out the argument again about mitigation coming from a juror’s own personal morality rather than evidence.
“I don’t think that’s how it works,” Samour said.
Nelson said she thinks it is important to note that no juror is required to identify which mitigating factors he or she has found to exist.
Orman said this is “anti-deliberation language.”
Nelson disagreed.
“It’s a true statement. They don’t have to articulate the mitigation if they don’t want to,” Nelson said.
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3:24 p.m.
Many of the arguments being discussed about the phase two instructions for the jury are similar to the same arguments the defense, prosecution and judge had for the instructions for the phase one instructions.
Samour said he is telling jurors about the individuality of their decisions repeatedly and that he does not feel he has to include further instruction on that point.
“Is there a risk that jurors could take this as ‘I don’t have to deliberate?'” Samour said. “To me, it makes more sense to say this is an individual determination you have to make at each point in the process and then just deliberate,” Samour said.
“There’s a presumption that Mr. Holmes should not be put to death,” Nelson said, noting that the default sentence would be that Holmes gets life in prison.
Samour said to ensure this is a fair trial, he can’t just tell the jury things that are favorable to a life sentence.
“That doesn’t mean anyone is interfering with Mr. Holmes constitutional rights,” Samour said.
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3:50 p.m.
The defense continues to ask for language modification for the phase two juror instructions
Orman said all the points he would want to make regarding phase two juror instructions have been covered.
The defense feels that language surrounding the way evidence can be drawn from mitigating factors is unclear, and the prosecution and Samour disagree.
After some arguing between the defense, prosecution and Samour, Orman said modifying language in the way the defense is asking would be “asking for trouble.”
Samour was concerned that specifically defining evidence derived from mitigating factors would be limiting and that he would prefer a more broad wording.
Samour said in phase two, it’s more complicated because jurors can consider evidence designed specifically for the sanity plea portion of the guilty trial but in a different, limited way, whereas in phase one, jurors cannot consider that evidence at all.
He feels he needs to say something specific to jurors at the beginning of phase two to clarify that.
Samour said he will draft something overnight to try to get some of these changes done.
Samour proposes meeting again Tuesday for more finalized juror instructions.
In terms of phase one closing arguments, Samour said he doesn’t know that he would call them closing arguments because there isn’t going to be any evidence. Samour said he can’t imagine whether they will take more than 10 minutes per side.
In phase two, the defense would go first and the prosecution would go next.
In phase three, the prosecution would go first, the defense would go next and then each party would have a rebuttal and then give Holmes the last word.
“I think I’m going to need more than 10 minutes,” Orman said of the phase one closing arguments. He requested 40 minutes.
The defense did not object to that time limit.
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4:03 p.m.
Lisa Teesch-Maguire with the prosecution had an issue with one of the defense’s upcoming witnesses who was not named, saying the witness had never met the defendant and didn’t know the defendant’s parents had a son.
Higgs said this was relevant testimony because it showed Holmes’ background and where he came from.
“It doesn’t sound like this is admissible testimony,” Samour said.
Samour said having family members talk about their own backgrounds does not sound appropriate.
Samour said it would be important to discuss Holmes “character, his background, his history, but not his mother’s character or his mother’s history or his mother’s background and in terms of the impact the crimes had on his mother while no doubt real, I’m not aware of any authority that would allow this type of evidence.”
I’m not making a ruling yet because you’re asking for more time and I’m giving you more time,” Samour said, but his initial reaction was that this witness testimony is not relevant.
The defense asked if the revised juror instructions would be available tomorrow or tonight.
“I’m going to try to do this this evening, but you keep talking to me,” Samour said, drawing laughs from the courtroom.
The defense then asked for a delay in the sentencing hearing due to one witness who had a family member go into hospice and one who had a family member pass away.
Samour said he would be extremely flexible but did not want to delay proceedings further.
He noted that the two witnesses could come in to testify any time between now and Aug. 3 when he planned to wrap up phase two of the sentencing trial.
“Nothing you said would indicate to me that people would be prevented from being here at some point during that time frame,” Samour said, noting that he would be OK with starting early, staying late or working on a day off to get their testimony in.
Court was adjourned until Tuesday at 10:30 a.m.
Elizabeth Hernandez: 303-954-1223, ehernandez@denverpost.com or
