ARAPAHOE COUNTY — — Denver Post reporter Jordan Steffen’s updates from Day 54 of the Aurora theater shooting trial at the Arapahoe County Justice Center in Centennial, Colorado.
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Day 54
Jurors in the Aurora theater shooting trial will return to the courthouse on Wednesday where they will begin to hear testimony and see evidence they may consider when deciding whether to sentence the gunman to death.
The jury of nine women and three men found James Holmes guilty on all 165 counts last week, launching the trial into a death penalty sentencing phase that could last as long as a month. Jurors rejected defense attorneys’ arguments that Holmes was legally insane when he killed 12 people and injured 70 others inside an Aurora movie theater on July 20, 2012.
Prosecutors and defense attorneys aren’t as limited in the evidence they may present during the penalty phase than they were during the guilt phase. Defense attorneys have indicated that they will call several people who knew Holmes before he moved to Colorado to start a neuroscience graduate program at the University of Colorado. Holmes’ parents may also be called.
Survivors and victims’ family members may be called by prosecutors. They will be allowed to describe how the attack has affected their lives, but they are not allowed to ask the jury for a specific sentence.
Jurors could deliberate three more times as sentencing hearing moves through three different phases. The first phase is expected to be completed on Wednesday, and jurors will likely have to deliberate on whether prosecutors proved beyond a reasonable doubt that there was at least one aggravating circumstance in the case.
In a 2013 filing, prosecutors claimed there were five aggravating circumstances present in this case: two or more people were killed, a child under the age of 12 was killed, Holmes created a “grave risk of death” for people inside the theater, the murders were committed in a “heinous, cruel, or depraved” manner and Holmes committed murder while lying in wait or from ambush.
Defense attorneys have indicated that they believe jurors will complete the first phase of the hearing by Wednesday afternoon and Holmes’ attorneys plan to start presenting mitigating evidence the same day. During that phase of trial, defense attorneys will present testimony and evidence to show why they believe Holmes’ deserves a sentence of life in prison.
The trial is expected to resume around 9 a.m.
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8:53 a.m.
Judge Carlos Samour Jr. took the bench around 8:40 a.m. before the jury was brought in.
“I have a few things on my list of housekeeping issues,” Samour said.
Prosecutor Rich Orman said that he did not have any objections or additional jury instructions for the different phases.
Defense attorney Kristen Nelson said she maintains her previous objections on some of the language.
“What else?” Samour asked.
Nelson asked to change a sentence that instructs the jury about either reaching a unanimous verdict or inform the judge that they could not reach a unanimous verdict for Holmes’ sentence. She asked to change the language to make it clear that they indicate whether they reached a unanimous verdict on the verdict form.
Orman said that the instruction adequately conveys the instruction to the jury as it is.
The instruction is only relevant if the jury gets to phase three, Samour said.
Samour said he was not too concerned about the issue and it could have been raised on Tuesday.
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9:11 a.m.
Samour stressed that he has made it clear to the jury that the decision of whether Holmes is sentenced to death is the jury’s decision alone.
The judge continued to make a record about defense objections that were raised on Tuesday while the jury instructions were being finalized.
Jurors will have to decide each of the alleged aggravating factors, Samour said. For each count, the jury must consider the mitigating factors and the aggravating factors.
“The weighing process, with respect to this case, must be separate for each count,” Samour said.
There is no “double counting,” the judge said. The law assumes that the jury follows the instructions.
Next, Samour discussed a witness that defense attorneys would like to call. Samour has previously ruled that the witness will not be allowed to testify about Holmes’ character.
After reviewing a report, the judge said he stands by his ruling to prevent the witness from making those statements.
Samour said Holmes’ mother — directly or indirectly — will not be allowed to discuss the impact of the case on her. She is not a victim in the case, Samour said.
The judge said he would grant the defense request of asking the jurors to notify him if they have been exposed to any media coverage of the trial or events marking the third anniversary of the attack.
Defense attorney Tamara Brady asked the judge not to use the word “event” and to ask the jurors that if they have received information “from any sources” to let the court know.
Orman did not have a position.
“I think that is appropriate, Ms. Brady,” Samour said.
Next, Samour addressed a request from the prosecution to wait three hours before reading the verdict in the first phase of the hearing.
The judge asked if 20 minutes would be OK.
Orman said that is fine, but he would ask to have time if the jury deliberates on the final phase.
Orman also asked that certain items of evidence not go back with the jury when the deliberation phase begins.
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9:25 a.m.
Brady said she did not object to Orman’s request. The notebook and the DVD containing Holmes’ statements to Dr. William Reid, medical notes and video of Holmes in the holding cell will not go back with the jury during phase one deliberations.
Next, Brady brought up a 129-slide PowerPoint presentation Orman provided defense attorneys around 5 p.m. Tuesday.
“We would object to the PowerPoint in total,” Brady said.
She said “none of the evidence in aggravation is disputed” and having a “dramatic PowerPoint” is inflammatory and unnecessary in this case.
She also has specific objections to specific slides. Slides 8 through 33 contain the victims’ names and photographs followed by a collection of the photographs. Brady said it is an improper attempt to evoke emotion from jurors during this phase of the sentencing hearing. Those should only be introduced during the third phase, “If we get there.”
Slide 36 is a photograph of Veronica Moser-Sullivan that has been shown four times.
“It is not needed to prove the aggravator,” Brady said.
Slide 38 states that that the evidence shows Holmes had the “conscious objective” to kill “every living soul.” The slide misstates the law, Brady said.
“There has to be the intent to kill a child specifically,” Brady said.
The slide is too broad to prove the aggravator that a child younger than 12 was killed. Holmes would have actually had to “intend to kill a child.”
Brady moved on to slide 39 which has another photograph of Veronica.
Slide 42 was inappropriate because an arrow pointing to Holmes with the gear on was inserted into the photograph.
“I think this photograph is confusing to the jury,” Brady said.
They know the photo was taken at Holmes’ apartment. That scene is not relevant to the aggravating factors, she said.
Slide 43 shows a photograph of the rifle with the pink flip flop and blood. The photograph is inappropriate and being used to evoke sympathy, Brady said.
Slide 49 states “at least 76 shots.” That is a “misstatement of the evidence” because figures on the slides were not presented during the guilty phase of trial.
“We do not know where that figure came from,” Brady said.
Slides 66 to 91 contain “some of the more gory photographs” of the survivor’s injuries. Again, Brady said the defense has never disputed the evidence and simply displaying them again is improper.
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9:36 a.m.
Slide 99 describes Holmes modifying the “killing zone” by using tear gas. The phrase “killing zone” is improper and was not presented by witnesses presented during the trial, Brady said.
Next, slide 101 expresses “an improper personal opinion of the prosecution,” Brady said. The slide does not contain actual evidence when it describes the “discomfort” created inside the theater.
Slide 103 says “the defendant killed his victims in the crowded movie theater.” That slide is also an improper opinion by the prosecution, Brady said.
On slide 104, a sentence says that the victims were “trapped by design.”
“This is argument based on evidence that has been excluded in this phase,” Brady said.
She said that objection applies to the next four slides as well.
Slide 105 states “They were unable to flee.” That slide and slide 108 improperly speak to the victims’ mental state and is “tantamount” to asking the jurors to place themselves in the victims’ shoes.
The next objection had to do with a slide that makes an unfair inference to Holmes’ intent, Brady says. The slide improperly uses the statements Holmes made during his psychiatric evaluation. Brady said the jury will be instructed not to consider that evidence in phase one deliberations.
All of the slides that repeat the word “torturous” are inappropriate, Brady said.
Slide 112 describing how the victims died amid screaming and anguish is also inappropriate, she said.
Slides 117 through 120 include the phrases about the victims being “helpless” inside the theater. Any inference that comes from those slides would be inappropriate, Brady said.
Brady objected to a slide that says Holmes “lurked” outside the theater.
“Those are the specific slides,” Brady said.
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9:49 a.m.
“New rule, folks,” Samour said. “If you want to use a PowerPoint presentation you have to tender it two days before.”
Samour scolded the attorneys — both sides — for waiting until the last minute to share these presentations and making objections.
“This is not the way things should work,” Samour said.
It is unfair to the jury, Samour said.
Orman said he gave the PowerPoint presentation to the defense as soon as he finished it. Samour stopped him and said the use of PowerPoint presentation will now alter the schedule of the trial. The same issue happened before closing arguments when the defense objected to the prosecution’s PowerPoint. Those objections and arguments took almost two hours to resolve.
“We just can’t keep doing this,” Samour said. “You’re both doing it.”
Samour said it was inconsistent that defense was objecting to PowerPoint presentations when they also use them.
Brady immediately stood up to comment.
“Hold on,” Samour said.
From here on out, attorneys have to give their PowerPoints to the opposite side two days in advance and the objections have to be made a day before the PowerPoint will be used.
Orman — who made a similar argument at the start of trial — said that if defense attorneys don’t contest the charges then they can stipulate them.
“Those are their names. I’m using them,” Orman said, referring to the victims’ names. “Those are their pictures. I’m using them.”
Holmes saw children in the theater and still he intended to kill everyone inside the theater — including children, Orman said. There was testimony during the guilty phase that a family with a baby was sitting in the same row as Holmes.
“The evidence supports that aggravating factor,” Orman said. “He shot Veronica four times. It’s hard enough to shoot someone once.”
The slides are meant to accompany Orman’s argument, he said.
A slide with an arrow pointing out gear Holmes was wearing shows the “defendant with the gun that he used to kill people,” Orman said.
“This is evidence that shows that he knew what he was doing,” Orman said.
During closing arguments, Samour ordered prosecutors to remove slides with photographs with red arrows and underlining. Orman said in this slide, the arrow is not directly on top of the photograph.
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10:05 a.m.
Orman said each of the fragments and pellets are considered projectiles. That is how he came up with the number in a slide that Brady objected to.
Orman went on to say that he thinks it would be appropriate to show photographs of each injured victim.
The use of the term “killing zone” is appropriate because the jury has convicted Holmes of killing people inside the theater, Orman said. The word “zone” is just a description of the theater.
Brady objected to slide 103, which describes Holmes killing “his” victims inside a theater.
“They’re his victims,” Orman said. “I don’t even understand the argument there.”
Holmes “designed” his attack and that characterization is not taken from statements made during his psychiatric evaluation, Orman said. It’s based on his actions, such as using tear gas.
Objections to slides that state that victims knew that “every breath they took could be their last” are unfounded because the jury can make a “reasonable inference” that people inside the theater knew they could die, Orman said.
“What’s the relevance of that?” Samour asked.
Orman said the statement shows the attack was “unnecessarily torturous.” It intentionally created “mental anguish.”
A slide that describes people worrying about the safety of their families and friends is appropriate because “people don’t necessarily go to the movies alone.”
“These people were in fear for their lives. What’s worse than that?” Orman said.
A set of slides describe how victims were unaware of any danger while they watched the movie and were helpless. That goes to the aggravating factor of lying in wait or ambush, Orman said.
“He killed these people. They were unaware of what was coming,” Orman said.
Using the word “lurked” to describe Holmes outside the theater is appropriate, but Orman agreed to change the word to “stood,” he said.
“Ms. Brady I’ll give you the last word,” Samour said.
Brady, who rarely raises her voice, heatedly presented her arguments.
“He simply puts them (photographs) up there to evoke the sympathy and emotion of the jury,” Brady said. “That’s the only reason for those slides.”
Photographs of the victims have probably already been seared into the minds of the jurors, she said.
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10:10 a.m.
Describing the actions as “torturous” is inappropriate and Brady continued to object to the inference that Holmes intended to kill children.
Brady reminds the judge that “this is not like the first trial.”
“I know that the court knows that,” Brady said.
She also forcefully told the judge that she’s “putting the prosecution on notice” that any time they refer to Holmes as “this guy” she will make an objection in front of the jury. Prosecutors routinely described Holmes as “this guy” during the guilt portion of the trial.
“They can refer to him as Mr. Holmes or the defendant,” Brady said.
Samour stepped down to consider the objections.
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10:50 a.m.
About 30 minutes after he stepped down, Samour took the bench.
“This was brought up at the last minute,” Samour said.
He overruled all of the global objections to the PowerPoint presentation in whole.
“Both sides have used slides,” Samour said. “The global objection, in my view, has no merit.”
Samour said he is OK with the black and white color scheme used in the slides. He would have had a problem with red.
“Those are the most neutral colors,” Samour said.
The judge also found the font used in the slides to be appropriate.
“The large font doesn’t bother me,” Samour said.
Samour made a record that he is acutely aware that the prosecution has the burden of proof in this phase.
Next, Samour will go through the specific objections raised by Brady.
The objection to using the victims’ names and photos is overruled. Prosecutors have to prove that two or more people were killed, Samour said.
“These photographs and these names are relevant,” Samour said. “These are all photographs the jury has seen before.”
Samour will sustain the objection to repeatedly showing Veronica’s photograph.
“It’s enough if they show it one time,” he said.
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11:03 a.m.
Prosecutors will not be allowed to say “every living soul.” They have to change the word “soul” to “person.” Samour was worried about how the jury would interpret the word.
There is sufficient evidence for the jury to infer that Holmes intended to kill a child under 12, Samour said.
A slide with an arrow pointing to Holmes will be allowed, because Orman did not alter the photograph, the judge said. There was no difference between the arrow and Orman pointing to the photograph with his finger or a laser pointer.
Samour said the white arrow is appropriate.
The objection that the photograph will be confusing for the jury was overruled because the photo shows Holmes dressed up with the armor and equipment he had on for the shooting.
A slide that shows the rifle tossed on the ground behind the theater will be allowed. Again, the jury has already seen the photo, it shows a gun used in the shooting and the photo shows where the gun was found, Samour said.
Photographs showing victims’ injuries are appropriate, Samour said. He rejected Brady’s argument that defense attorneys do not dispute the evidence. Samour said whether Holmes created a grave risk of death for others is still at question and these photographs speak to that aggravating factor.
The ruling would be different if the defense was stipulating to the aggravating factor, Samour said.
The phrase “killing zone” is argument and it is inappropriate because it is in writing during a penalty phase.
“The people don’t need that term to make the point they are making,” Samour said.
What is relevant is that Holmes used tear gas and that made the crime unnecessarily torturous, Samour said.
Describing the discomfort caused by the tear gas is appropriate, Samour said. There is a reasonable inference that someone exposed to tear gas would be uncomfortable.
“Discomfort is actually a pretty mild way to describe what would be reasonable for someone to expect what happened when he used tear gas,” Samour said.
Samour overruled the objection to the slide and it will be allowed.
Describing the victims as “his victims” is appropriate because Holmes has been found guilty of killing all 12 people, Samour said.
“This is now fact given the jury’s guilty findings,” Samour said.
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11:13 a.m.
A slide that states “the victims were trapped by design” is not based on statements Holmes made during his psychiatric evaluation, Samour said. It will be allowed, but the judge reminded the prosecutors not to mention anything from the evaluation as it has been excluded from this phase.
Slides stating that victims were unable to flee will not be allowed because some of the victims were able to get out of the theater, Samour said. He sustained Brady’s objection to that slide. The slide should be modified or deleted.
Slide 106 will not be allowed.
“I don’t like this slide. The slide appears to be more for an effect on the jury than anything else, Samour said.
The slide described people “knowing that every breath could be their last.”
Slide 107 says “In the darkness” It will be allowed. Slide 108 reads, “There was nothing they could do about it. That slide will also be allowed.
Both represent logical inferences the jury could make, Samour said.
The judge denied an objection to the use of the word “torturous.” That word is used in the jury instructions.
Next, the slide discuss the victims fearing for the lives of their loved ones. Samour sustained the defense’s objection and allowed prosecutors to modify the slide.
Prosecutors cannot use a slide that describes victims dying surrounded by screams.
Slides relating to prosecutors’ efforts to prove the aggravating factor that Holmes was lying in wait or ambush will be allowed.
“Do you need any time before you bring the jury in?” Samour asked when he was done.
The attorneys said they did not and the jury was brought in.
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11:25 a.m.
Once the jury was brought into the courtroom, Samour welcomed them back and reminded them not to blame either side for the delay.
Jurors were given copies of the introductory instructions. The instructions will be read and then they will proceed.
The first instruction tells the jury that they are solely responsible for deciding Holmes’ punishment. Only the 24 first-degree murder counts are applicable during the sentencing phase. Samour will decide the sentence for all the other charges at a later date.
Samour then described the two possible sentence options for the first-degree murder charges.
“The law never requires a death sentence,” Samour said.
The judge then described the three different phases in a sentencing phase. Jurors will be given instructions at the conclusion of each phase the jury reaches.
In phase one, jurors will be asked to decide if the prosecution proved beyond a reasonable doubt that at least one aggravating factor was present in each of the 24 murder counts. The jury must reach a unanimous decision in order to advance to the second phase.
The five aggravating factors were then read to the jury.
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11:35 a.m.
If the jury does not find that at least one aggravating factor was present, then the jury must render a sentence of life in prison without the possibility of parole. If they unanimously find the aggravating factor is present, the case will move on to phase two.
During that phase the jury must consider all of the mitigating factors. Mitigating factors must be considered as a fact or circumstance that would cause the jury to consider a life sentence instead of a death sentence.
Attorneys will be allowed to present closing arguments at the end of phase two. The jury then will deliberate and weigh the mitigating factors against the aggravating factors.
Each juror may consider mercy for Holmes during this phase.
Each juror must individually decide if they are convinced beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. If the jury unanimously finds that the mitigating factors do not outweigh the aggravating factors, the hearing will continue to phase three.
If they find the mitigating factors outweigh aggravating factors then the sentence will be life in prison without parole.
Attorneys may also make closing arguments during the conclusion of phase three. Again, the jury can consider mercy for Holmes during this phase.
Then the jury will deliberate again.
They may only return a sentence of death if they find beyond a reasonable doubt that death is the appropriate punishment. That verdict must be unanimous.
If the jury cannot reach a unanimous verdict, then Holmes will be sentenced to life in prison without the possibility of parole.
The jury’s verdict must be based on a moral judgment of Holmes’ character and crime, Samour said.
Instruction two tells the jury that defense attorneys do not have any burden of proof.
The third instruction reminds jury that they may only consider the evidence in the way that Samour has instructed them to.
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11:47 a.m.
Samour finished reading the introductory instructions.
Neither prosecutors nor defense attorneys said they had any additional evidence to present.
As a result, Samour moved on to presenting the final jury instructions for Phase One of the sentencing stage. He gave them each a copy of the instructions and asked that they follow along as he reads them to him.
Once he is done, the attorneys will present their closing arguments for Phase One.
The first instruction informs the jury that the first part of the proceedings will be referred to as the trial. The second part of the proceedings will be referred to as the sentencing hearing.
Jurors may not communicate with anyone about the case in any way. If they hear anyone discussing the case they must remove themselves from the area immediately.
Jurors are not allowed to do any research related to the case.
“Do not read about this case in the newspaper or on the Internet,” Samour said. Jurors are not to view any media reports about the trial.
There should not be any contact between the deliberating and alternate jurors. Deliberating jurors are not allowed to have cell phones during their deliberations.
The deliberating jurors are only allowed to discuss the case when all 12 jurors are present.
Jurors are not allowed to discuss issues that may come up in Phase Two or Phase Three.
Any remarks or questions Samour made during trial should not be taken as suggestions or opinion of the judge.
“I should remind you that I am neutral in these proceedings,” Samour said.
Instruction two tells juror that they have to consider each alleged aggravating factor for each of the 24 first-degree murder counts. The jury handed down two guilty verdicts of first-degree murder for each victim killed in the attack.
The evidence and applicable law should be considered separately for each count.
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12:03 p.m.
The third instruction tells jurors that they must have a unanimous verdict that prosecutors proved at least one aggravating factor beyond a reasonable doubt, in order to move to the next phase. If there is not a unanimous decision, then the penalty hearing will end and the jury will find a sentence of life in prison without the possibility of parole.
If they unanimously find there was at least one aggravating factor, the case will move to Phase Two.
Instruction four explains reasonable doubt.
The next instruction reminds the jury that may not consider the fact that prosecutors are seeking the death penalty during their deliberations in Phase One. They may only consider whether the alleged aggravating factors are present.
Instruction six states that the alleged aggravating factors are not evidence.
Number seven explains that jurors may not consider evidence admitted solely for the issues raised by Holmes’ plea of not guilty by reason of insanity.
Instruction eight tells jurors that both direct and circumstantial evidence may be considered in their deliberations.
The next instruction reminds jurors that they may not consider the number of witnesses each side called.
Instruction 10 explains that jurors alone may determine the credibility of each witness.
The next instruction reminds the jury that they are not bound by any testimony from an expert witness. They determine how much weight they give that testimony.
Instruction 12 says the jury may not hold Holmes’ decision not to testify against him. He has that right during trial and during the sentencing hearing.
Next, the judge read an instruction telling jurors that Holmes has no burden of proof. The prosecution must prove beyond a reasonable doubt all of the factors for at least one alleged aggravating circumstance.
For the first alleged aggravator, prosecutors must prove that Holmes killed two or more people during the same criminal episode.
Aggravator two requires them to find that Holmes intentionally killed Veronica Moser-Sullivan, the youngest victim at age 6.
For aggravator three, prosecutors must prove that Holmes knowingly created a grave risk of death for people beyond the 12 people killed.
The next aggravator requires prosecutors to prove that Holmes committed first-degree murder in an especially depraved, heinous or cruel manner.
The last aggravator require prosecutors to prove that Holmes committed murder while lying in wait or from ambush.
If each element is proved, the jury should find the aggravating factor exists.
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12:16 p.m.
Instruction 14 gives jurors definitions for different terms, including intent.
The next instruction tells jurors not to give weight to juror questions Samour did not read during trial.
Instruction 16 explains that jurors should rely on their memory as much as possible, instead of their notes.
Instruction 17 tell jurors that if they have a question they should write it down and it will be given to the judge. The law may require that some of the questions not be answered.
The last instruction reminds the jury that they must fill out a verdict form for each count.
“All of you must agree for all parts of each verdict form,” Samour said.
Jurors will get 24 verdict forms. There are two parts for each form. The jury will have to mark which aggravating factor they found — if any — were present for each count.
Samour reads from the verdict form for Jonathan Blunk as an example of the instructions on the verdict form.
The alleged aggravating factor that a child under 12 was murdered only applies to the two counts related to Veronica.
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12:26 p.m.
Samour finished reading the verdict forms.
Next he suggested that everyone take a 15-minute break and then the attorneys will come back and present their closing arguments.
Each side has been limited to 40 minutes. Once they are done, the deliberating jurors will go back and begin deliberating. Lunch will be provided for both alternate and deliberating jurors.
None of the jurors are allowed to review the instructions given at the end of trial.
Samour reminds the jury that there are no time limits on how long they can deliberate. The jury’s verdict will be read 20 minutes after they alert the judge they have reached one.
Before releasing the jury, the judge asks the jury to alert his staff if any of them have been exposed to media reports about the case. He asked them to do the same if that happens in the future. He asked them to alert him if they have received any information from any source.
The jury was released for their break. The attorneys then left for the break.
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12:46 p.m.
Samour resumed the bench. He said he had two notes from jurors.
The first note was from juror 737, who needed to “speak with the judge about something.”
The next note said the mother of one of the jurors sent them a text about sentencing. The juror deleted the text and Samour said they do not need to speak with that juror.
The judge called Juror 737 into the courtroom. That is the jury foreman.
“What’s on your mind?” Samour said.
The juror said he was tweeted at over the weekend. The tweet included a link to a Newsweek article that used his first and last name.
The juror said he did not read the article but he was concerned about his privacy.
“It was just weird to see my name there. That was not cool,” the juror said.
Samour reminded the juror that he had issued an order before the trial prohibiting all media from naming any of the jurors.
— — —
12:51 p.m.
Orman did not ask for any additional action concerning the juror. He said if the judge wants to take action against Newsweek, that would be his decision.
Brady asked for a moment to speak with her colleagues.
She asked the judge to make sure the foreman has not mentioned the tweet or article to other jurors.
Brady said she located a Newsweek tweet consistent with what the juror is describing and she would like to make a record about that at a different time.
The juror was brought in and he promised not to discuss the incident with other jurors. He promised that he would not and left the courtroom.
Samour then had the jury brought into the courtroom.
— — —
1:02 p.m.
The jury was seated in the courtroom.
Orman began his closing argument.
“First I want to talk to you about the evidence,” Orman said.
Jurors are not allowed to consider evidence admitted solely for the purpose of considering Holmes’ sanity. Orman said he is only going to discuss the evidence that jurors are allowed to consider.
The text of the first aggravating factor flashed on the large screen in the courtroom.
“The defendant killed, and you have convicted him of killing Jonathan Blunk,” Orman said.
A photo of Blunk flashed on the screen. Orman proceeded to list the rest of the victims.
“The defendant killed and you have convicted him of killing John Larimer,” Orman said.
A photo flashes and Orman continues.
“The defendant killed and you have convicted him of killing Alex Sullivan,” Orman said.
Sullivan’s photo flashes before the jury, the Rebecca Wingo’s, then Alex Teves.
“The defendant killed and you have convicted him of killing Veronica Moser-Sullivan,” Orman said.
The little girl’s photograph flashed before a slide filled in with photographs of all the victims.
Orman said they have proved that Holmes killed more than two people during the same event.
The next aggravator is killing a child under 12.
Again, Orman points out that Veronica was shot four times inside the theater.
“He went in there with three weapons,” he said. “He went in there with enough fire power and enough ammo to kill everybody and that’s what he intended to do.”
That includes Veronica, Orman said. Holmes intended to kill Veronica, he said.
Several witnesses testified that they saw children and a baby inside the theater.
“Lots of kids in that theater. The defendant had the intent to kill every single one of them,” Orman said.
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1:10 p.m.
The next aggravator — creating a risk of grave death for people inside the theater in addition to the victims who were killed.
Orman flashes through photographs of the empty theater covered in spilled popcorn and bullet casings. Photographs of the rifle, shotgun and handgun were shown. Then Orman stops on a photograph Holmes took of everything he bought for the attack.
Orman lists all of the casings found inside the theater.
“You add all that up,” Orman said.
There were 670 projectiles shot inside the theater, Orman said.
Orman points to photographs of different rows in the theater. Trajectory rods stick out of the blue seats.
“Look at what that rifle did. Went through that seat like a hot knife through butter. Grave risk of death?” Orman said pointing to images of the back of the seats with holes in them.
Bullet holes were found in the seat bottoms of seats as far back as row 19.
“Everybody in Theater 9 that wasn’t killed was in a grave risk of being killed and he knew that,” Orman said.
“Consider the injuries you heard about,” Orman said.
He flipped through photographs of survivors in hospital beds, their faces covered in blood. Their legs and arms wrapped in bandages. Some of them didn’t have any bandages on and blood poured down their limbs.
“Grave risk of death?” Orman asked after each of the photographs.
“We have proven to you that statutory aggravating factor,” he said.
— — —
1:19 p.m.
The next aggravator — the crime was particularly heinous, cruel or depraved manner.
“Not every murder is going to be necessarily torturous,” Orman said. “Were these murders committed in a humane fashion or where they unnecessarily torturous?”
Holmes used tear gas to create “extreme discomfort” in addition to being shot,” Orman said.
“They were trapped in there by design,” Orman said. “They were trapped in there and they couldn’t easily protect themselves.”
Some victims were unable to flee, trapped in darkness and they knew that there was nothing they could do to protect themselves, Orman said.
“They could think about it,” Orman said. “I submit to you that that is mental torture.”
“That is unnecessarily torturous.”
At the moments of their deaths, the victims were in fear for their own lives and the lives of their loved ones.
“That is worse than fearing for yourself,” Orman said.
“They died surrounded by screaming and by pain and by anguish. That is how they died. That is how he killed them,” Orman said.
The final factor — lying in wait.
“How could they know there was any danger?” Orman asked.
Holmes was in a place of concealment. A photograph of the theater’s back door was shown to the jury. Then a photograph of the clip used to keep the door from closing all the way.
It was all an effort to “kill people who had no idea that anything was coming,” he said.
Next the jury saw the hallway he walked through.
“And then they knew. But they couldn’t do anything to protect themselves. And then the killing started,” Orman said.
“That is ambush. That is lying in wait and we have proven to you beyond a reasonable doubt that this aggravating factor is present for each and every count.”
Orman asked the jurors to find “that is in fact the case.”
Tamara Brady said the defense has no argument for Phase One.
— — —
1:22 p.m.
The alternate jurors were released from the courtroom first. The judge reminded them that they may not deliberate about anything in the case.
“We’ll have lunch brought to them,” Samour said.
Next, the deliberating jurors were released from the courtroom.
Samour then released the attorneys for an hour-long lunch break.
— — —
2:44 p.m.
After the lunch break, Samour made an additional record concerning his rulings on Orman’s PowerPoint presentation.
Next, Nelson addressed the issue of the Newsweek tweet concerning the jury foreman.
Nelson said they were able to get a copy of the tweet and tweets from other media outlets concerning Newsweek’s tweet.
“This is obviously a violation,” Nelson said.
Ultimately, it is the judge’s decision on what action to take, if any. Nelson made suggestions on what sanctions the judge could enforce.
The first was to ban Newsweek from being in the courthouse and courtroom for the remainder of the trial. She urged the judge to consider whether media who reported the tweet should also be banned.
She also asked the judge to find Newsweek in contempt. She also asked that an investigator be brought in to learn how the juror’s name was discovered.
Nelson asked that the judge send a serious message to the media that any violation of the order will result in serious consequences.
“The court obviously is limited in its power,” Orman said. “I don’t know what those limitations are.”
Orman said he is surprised that the tweet was still there when the issue was brought to the judge’s attention.
“It’s somewhat shocking to me that it was not deleted,” Orman said.
Samour said a spokesman alerted Newsweek to the violation when he saw the juror’s name in the story. But the spokesman was not aware of the tweet.
A copy of the judge’s order has been forwarded to the reporter who wrote the story. Newsweek said they do not plan to cover the rest of the trial.
Still, Samour said it is necessary to ban that reporter and Newsweek from the courthouse for the rest of the trial. The judge said he is not aware of any other media publishing the juror’s name.
“Frankly, Newsweek should know better. It is really disappointing that something like this happened,” Samour said.
The judge said the media that have been in the courtroom for months have been professional and follow the order.
“Then here is someone who thinks she’s special,” Samour said.
Samour will not find the reporter in contempt.
Orman points out that Newsweek may have published the information in other publications.
— — —
2:51 p.m.
Next, Samour said the jury submitted a request for a TV and DVD player so they could view some of the evidence.
Orman said the jury should be allowed to watch the evidence.
“Does the defense need a little time before we proceed on this?” Samour asked.
Nelson asked for a brief break. She also made an additional record that Newsweek has taken down the tweet, but the tweet has been reproduced on other websites.
“You can still pull that tweet up,” Nelson said.
She pointed out other media are reporting about the incident.
“It’s a very serious problem, and we think the court should take further action,” Nelson said.
Samour said as long as the media outlets are not republishing the juror’s name, they are allowed to report on the discussions happening in court today.
Arapahoe County District Attorney George Brauchler stood up and said that defense attorneys provided him a copy of a PowerPoint presentation they plan to use. Brauchler asked to give the judge a copy so that he may make a record on it when the judge is ready.
Samour granted the request.
The judge asked if the attorneys are OK with him telling the juror that the he has taken “appropriate action” concerning the tweet.” Both sides agreed. The judge will speak with the juror once deliberations are finished.
— — —
3:18 p.m.
After the break, Samour gave the attorneys copies of the jury’s request for a TV and DVD player so they can view evidence.
Orman said the judge has discretion on whether to provide the items. He went on to cite relevant cases that may give Samour some direction.
He went on to say that he would like to know what the jury wants to view.
Samour agreed and said he has an obligation to make sure that the evidence is being considered fairly.
“How can I do the analysis if I don’t know what the jury wants to see?” Samour said.
Nelson said she agrees.
Samour will send a question back to the jury room. He then stepped down.
— — —
3:46 p.m.
Samour first read the note that he sent back to the jury asking them which exhibits they want to view.
The jury responded that they would like to watch several exhibits including the video interview of Holmes from July 20, 2012 with police, an audio recording of a second interview and three videos from theater surveillance cameras.
It would take about an hour to watch all of the videos.
Orman said the jury should be allowed to listen and watch all of the exhibits.
“They want to see it. It’s been admitted,” Orman said.
In one of the videos Holmes makes a statement about children inside the theater to police. The videos from the theater show people and the defendant walking through the theater. One of them shows Veronica walking by the concessions stand and the other shows people running out of the theater.
Nelson said the exhibits could be played in the deliberation room or in the courtroom with a bailiff.
Samour said that the exhibits will aid the jury in their proper consideration of the case.
“I believe that all of them would be helpful,” Samour said.
The only exhibit that “comes close” is the audio recording in which Holmes discusses his apartment. But the jury may be making an effort to be thorough.
All of the other videos would be relevant, he said. The video recordings taken from the theater’s lobby would help show whether there were children present.
— — —
3:56 p.m.
The judge said he would like to grant the jury’s request but remind them that they are not to give the videos unfair weight. They may only watch the videos once.
They will have a DVD player and a TV for 75 minutes, which is the estimated length of time it should take to play all of the recordings.
The jurors are not allowed to play any recordings that were not included in their request.
Samour said he wanted the jurors to watch the video in the deliberation room. It would not be proper for a bailiff to be present because the jurors should be able to discuss what they are seeing.
The judge said he trusts the jurors will follow his instructions.
Nelson said the audio recording of Holmes interview with police violated Holmes’ Fifth Amendment rights. She objected to the jury viewing that exhibit.
Samour said he was concerned that the exhibit in question was the “least valuable” for the jury’s consideration at this time.
Orman agreed and said there is nothing on that audio that relates to the theater. Still, the jury is trying to be thorough and should be able to listen to the audio recording because it was admitted.
He also said it would be inappropriate to have a bailiff present while the videos are being played.
— — —
3:59 p.m.
“I’ve always taken the view that deliberations are sacred in a way,” Samour said.
The judge said he wanted a couple of minutes to think about the audio recording that defense attorneys objected to.
Orman said it’s possible that the jury may want to hear about Holmes’ efforts to delay the police trying to get to the theater. It may speak to the aggravating factor of creating a grave risk of death to others, he said.
Samour stepped down for a few minutes. He will make a decision in a few minutes.
— — —
4:14 p.m.
Samour took the bench at 4:08 p.m.
The judge said he reviewed the analysis provided by a relevant case and his ruling stands.
Considering the alleged aggravating factors, it’s possible that the jury wants to hear the audio recording to decide if Holmes mentioned a child in that recording or in a different recording. The audio recording may also relate to the aggravating factors of creating a grave risk of death or committing a crime in a cruel, heinous or depraved manner, he said.
“It may go to the matter of whether there was unnecessary torture,” Samour said.
Samour overruled Nelson’s objection because the recording has already been admitted and played for the jury.
Jurors will be given instructions to only play the exhibits one time and they will only have the equipment for 60 minutes. That should be enough time to watch all of the exhibits they requested, the judge said.
Samour stepped down.
— — —
4:35 p.m.
Shortly after Samour ordered the jurors be given a TV and DVD player, the jury submitted a question.
As the bailiffs were about to bring in the equipment, the jurors indicated that they were about to send another note.
“Our hours will be 8:30 to 4:30.”
“They asked us to bring back the equipment tomorrow,” Samour said. “They’re about to go home.”
The jury indicated that those will be their hours for any deliberations during the penalty phase.
Brauchler asked to review a PowerPoint presentation that defense attorneys may use tomorrow.
— — —
4:44 p.m.
Brauchler said he would like to use the jury instructions in a future PowerPoint presentation and he asked for some flexibility in the rule Samour issued this morning.
“I don’t have a problem with that,” Samour said.
That consideration will go for both sides.
Next, Brauchler said the defense submitted eight slides they may use during a short opening argument that will happen if the case begins the second phase. He does not oppose the first or last slide.
Several slides appears to be argumentative. A different slide is not an accurate reflection of the law, Brauchler said.
One slide includes family photos for Holmes. Brauchler said he did not object to that slide.
He did object to a slide that includes the word “mercy.” Brauchler did not object to the word “mercy” but he objects to the other two words on the slide.
Defense attorney Rebekka Higgs said several of the slides Brauchler objected to were demonstrative. The final slide is part of “what the jury will be doing in the trial,” she said.
A slide that highlights a portion of a reference board used during jury selection is appropriate, she said. Her preference would be to bring the board into the courtroom.
The slides discuss the difference between mental illness and the narrow legal definition of insanity, Higgs said. The PowerPoint will be used to show that mental illness may still be considered during this phase, she said.
— — —
4:57 p.m.
A slide that states “Rise above” is appropriate because it is part of a theme that defense attorneys have presented throughout the trial. It urges the jurors to consider more than the emotions evoked in the case, she said.
Brauchler followed up by saying that he does not remember a similar statement being made during the opening statements.
“This feels more thematic,” Brauchler said.
The slides Higgs said were demonstrative are inappropriate because witnesses will not testify about the ideas during the second phase, Brauchler said.
Brauchler objected to bringing out the poster that was shown to the jury during jury selection. It is also inappropriate to show a photo of the board in one of the slides.
Samour found that the first slide — describing a theme — is inappropriate. He points out that he allowed the short opening statements because it would be helpful for everyone to know what mitigating evidence will be presented.
“It wasn’t so a slide that says ‘Rise above’ could be shown,” Samour said.
A slide discussing mental illness and insanity does not appear to be an accurate statement of the law, Samour said. He is concerned the slide will confuse or mislead the jury. The slide will not be allowed.
The judge will allow a slide that says, “But for mental illness none of this would have occurred.”
It is not appropriate to bring in the board used during jury selection, Samour said. He told defense attorneys that they could explain the second phase if they use the same language that he will use during instructions.
A slide with photographs will be allowed.
The slide that says “Compassion, understanding and mercy” will not be allowed because the law does not discuss understanding and compassion. It only discusses mercy.
Samour asked the attorneys to remind him to bring in the jury to tell him that the Newsweek issue has been addressed.
Nelson submitted a copy of one of the websites that captured Newsweek’s tweet.
Samour stepped down. The jury will return at 8:30 a.m.
Jordan Steffen: 303-954-1794, jsteffen@denverpost.com or
