CENTENNIAL — The Aurora movie theater shooting trial hung in unexpected suspension Wednesday, as of the trial’s sentencing phase showed the case’s second half will be very different from its first.
When the day ended, jurors remained ensconced in deliberations that lawyers on both sides had expected would take only a couple of hours. Jurors will return to those deliberations Thursday morning, meaning the sentencing phase’s second step — when the defense for sparing James Holmes’ life — may not start until a day or more after it was originally planned.
“Our hours will be 8:30 a.m. to 4:30 p.m.,” jurors wrote in a note from the deliberation room, indicating a workmanlike approach to the trial’s closing — but arguably most significant — weeks.
Wednesday marked a new beginning of sorts for the three-month-long trial.
After jurors last week took less than 13 hours to convict Holmes of 165 counts of murder, attempted murder and explosives possession, the case shifted Wednesday to focus on punishment. Jurors during the trial’s punishment phase if they are to sentence Holmes to death, as prosecutors are seeking.
The day began with prosecutors taking the first step toward that possible death sentence by asking jurors to find that Holmes’ crime was especially heinous. Under Colorado law, prosecutors must prove a murder was “aggravated” in order for the killer to be eligible for the death penalty. State law sets forth specific criteria for making that decision.
In the theater shooting case, prosecutors have alleged in which each of the 12 murders was aggravated: that the killings involved multiple victims, that the killings also created the risk of death to others, that the killings were committed in a cruel manner and that the killings were an ambush. Prosecutors have alleged a fifth aggravating factor for the death of 6-year-old Veronica Moser-Sullivan: that Holmes intentionally killed a child under 12.
In arguing that the killings were aggravated, prosecutor Rich Orman showed jurors pictures of the slain and photos showing critical injuries to some of the 70 people wounded in the July 2012 attack on the theater complex.
“Everybody — everybody — in Theater 9 that wasn’t killed was in a grave risk of death,” Orman said.
Although they are asked to deliberate on every aggravating factor presented in every count, jurors only have to agree on one factor for one count in order for the case to move onto the second step of the sentencing phase. Both sides expected that would happen Wednesday. Defense attorneys — who declined to make an argument to jurors against aggravation — scheduled several witnesses to testify Wednesday afternoon in step two of the process.
Instead, the afternoon stretched on with no decision from jurors. Late in the day, the jury sent a note asking for equipment on which to watch several videos that were earlier admitted into evidence.
That was not the only sign, though, that the sentencing of Holmes will be more hotly debated than the guilt of Holmes.
At the beginning of the day, prosecutors and defense attorneys debated for two hours over a PowerPoint presentation Orman planned to use in his arguments.
Judge Carlos Samour Jr. ultimately allowed most slides — some with modifications — but not before defense attorney Tamara Brady put prosecutors on notice that the defense will be more aggressive in this half of trial. She mentioned what she said was the “sneering” way prosecutors referred to Holmes during the guilt phase of the trial as “that guy” or “this guy.”
“They can refer to him as ‘Mr. Holmes’ or as ‘the defendant,’ ” she said forcefully. “But ‘this guy’ is not going to happen at the sentencing — at least not without an objection from the defense.”
