ARAPAHOE COUNTY — — Denver Post reporter Jordan Steffen’s updates from Day 60 of the Aurora theater shooting trial at the Arapahoe County Justice Center in Centennial, Colorado.
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Day 60
Attorneys in the Aurora theater shooting case will present closing arguments on Thursday, marking the end of the second step in the sentencing phase.
On Thursday, jurors are expected to begin deliberating in the second step of the sentencing phase — it could be the last time they deliberate in the case. The question jurors will have to decide is whether the things that make the Aurora movie theater murders so horrible outweigh the details about James Holmes’ life that suggest mercy and a sentence of life in prison.
If one juror finds that the details of Holmes life — such as his mental illness — outweigh the proven aggravating factors of the crime, the sentencing phase is done and Holmes will be sent to prison for life.
But if the jurors unanimously agree that the “mitigating” factors do not outweigh the “aggravating” factors the sentencing phase of the trial will move forward to its final step. In that last phase, relatives of the 12 people killed on July 20, 2012 will be allowed to testify about the shooting’s impact on them. Jurors will then make a final decision on whether to sentence Holmes to death or life in prison.
Family members are not allowed to ask the jury for a specific sentence.
On Wednesday, Holmes’ mother, Arlene Holmes, testified for several hour as the last witness in the defense attorneys’ mitigation case. Through tears, she told the jury that she did not know her son was severely mentally ill or that he was having thoughts of killing people. Her husband gave similar testimony before she was called to the stand.
Attorneys will return to the courtroom around 8:40 a.m. to finalize the jury instructions for this phase and discuss the PowerPoint slides the attorneys plan to use during their closing arguments. Each side has been given 40 minutes to present their closing arguments.
The jury is expected to return around 11:30 a.m. to hear the arguments.
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9:04 a.m.
Judge Carlos Samour Jr. took the bench and asked the attorneys if they had enough time to go through the instructions. Defense attorney Kristen Nelson said she needed a little more time but she could finish while attorneys are discussing the PowerPoint slides.
Nelson submitted the final two instructions concerning mitigating evidence last night.
Samour went over a few adjustments he made to the instructions last night. He said most of those changes were more related to form and not substance, but he asked the attorneys to read over them to make sure.
Prosecutor Dan Edwards said he did not have anything to add to those instructions.
Nelson handed the judge a copy of her instructions concerning mitigation evidence.
“Let’s take these two instructions one at a time,” Samour said.
Edwards said he objects to an instruction that discusses “any other evidence” that may be considered by the jury. He argued that the instruction attempts to do what the judge should be doing.
But Samour said it’s true that the jury decides what is mitigation and what is not.
Samour said it’s true that the jury decides what is mitigation and what is not. He also said it appears that Edwards is “backtracking” because he withdrew his objection.
Edwards tried to interject, but the judge stopped him.
“I didn’t interrupt you,” Samour said.
Edwards said he is restating an objection he stated yesterday that the mitigation has to be justified.
Again, Samour said it sounds like the “prosecution is admitting that it made a mistake” and now they are trying to correct it.
“Either you make an objection or you don’t,” Samour said. “Let’s not go back to instructions that you told me you don’t have objections to.”
The jury decides what is a mitigating factor, Samour said.
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9:17 a.m.
Samour was worried that granting the prosecution’s request would confuse the jury about what is mitigating evidence.
“That’s only going to confuse the jury,” Samour said.
The attorneys moved on to the next instruction Nelson submitted.
Prosecutor Rich Orman said the instruction is not consistent with the case law. He asked the judge to include cautionary language instructing the jury that the jury does not have to consider any of the facts as established mitigation.
Orman said it needs to be clear to the jury that they have to find first that the facts exist and then decide whether those are facts that act as mitigating evidence.
Nelson objected to Orman’s request. She said she phrased the language to match the instruction used in the most recent death penalty cases in Colorado.
The instruction tells jurors that they must consider any mitigation that they decided exists in this case.
“I think it makes it clear to the jurors that it’s up to them to decide,” Nelson said.
Samour said Orman’s statement accurately reflects what the law requires.
The judge said he will add the cautionary language because it “is the truth and the law,” he said.
Samour then tells Nelson not to interrupt him.
Nelson apologized for interrupting the judge. She then raised an issue with the last sentence in the cautionary language. She asked to use language that conveys that it is up to the jury and not judge to decide if the facts are true and if they are mitigating factors.
Samour said Nelson’s request is an appropriate addition. Instead of using the word “true” he will use the word “established” to be consistent.
That concludes the first paragraph in seven pages of instructions.
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9:30 a.m.
Next, Orman asked the judge that the instruction use “the defendant” instead of “Mr. Holmes.” He asked that be changed to be consistent.
Nelson said these instructions are different because it explains the theory of their case.
Samour said he will be consistent and use “the defendant.” The judge then corrects an earlier statement. The instructions are nine pages long.
In paragraph 39, defense attorneys wrote that Dr. Lynne Fenton could have hospitalized Holmes and did not. Orman argued that is a misstatement of the law at the time and is improper and misleading.
Nelson argued that this is “a reasonable inference” that the jury should draw from the evidence. She disagrees with Orman’s claim that the instruction misstates the evidence.
“That was her opinion, that she couldn’t hospitalize Mr. Holmes,” Nelson said.
The statute was different from what Fenton was saying, Nelson said.
“She could have if she had chosen and decided to do so,” Nelson said.
Orman said they could have presented expert witness testimony if that is their position. He said the likely reason they did not do that was because “there is not a psychiatrist in the country that would do so.”
Samour said he is concerned with the way the instruction is written. He will give her an opportunity to rephrase the paragraph.
Nelson said she would do so.
Next, Orman raises concerns with paragraph 46, which has to do with writings that Holmes did in the jail. The instruction discuss how Holmes was still psychotic while he was in jail and he wrote the pages about galactic colonization. Orman said he does not know if it is appropriate to say that the writings were drafted during that time period.
A defense investigator said he collected the writings in 2014 but did not know exactly when Holmes wrote them.
Nelson said there is a lot of evidence to show that the writings were made during that period. One of the state-appointed psychiatrist discussed the writings with Holmes, Nelson said. It’s a reasonable inference of the evidence that Holmes wrote the pages before he was medicated.
“I’m going to have to do some checking on that,” Samour said.
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9:42 a.m.
Next, Orman says paragraph 44 is argument and he does not remember any witness describing Holmes’ behavior after his arrest.
“Argument, I don’t think, is appropriate,” Orman said.
Nelson said that Dr. Raquel Gurr testified.
Samour said he need to check.
Paragraph 52 says that Holmes “values his medications,” Orman said.
“I don’t remember anyone saying that,” Orman said.
Nelson said Holmes told Dr. William Reid that he likes being on the medications and he feels like he needs them.
Samour said the word “value” is odd; he asked if they could say that Holmes “acknowledges” that he needs to continue taking his medications. Nelson said that was fine.
Paragraph 58 says that Holmes offered to plead guilty to the charges in this case but the prosecution rejected that offer and sought the death penalty.
“Come on. We can’t tell the jury that. You know that,” Samour told Nelson.
That language will be removed.
Orman argued that the words “To the contrary” was argumentative and inappropriate.
Samour disagreed and kept the language.
Next, Orman said the word “unbeknownst” is inappropriate when describing that Holmes was starting to have thoughts no one knew about in middle school.
Nelson said it’s not argument. Samour agreed.
Orman then argued that a sentence about Holmes’ symptoms was a reasonable inference and was not in the evidence. That includes information about Holmes’ “lack of motivation.”
Samour points out that both sides have repeatedly talked about the different symptoms Holmes was experiencing.
But Orman argued that the argument is not proper in the argument.
Gurr and Dr. Jeffrey Metzner talked about these symptoms, Nelson said. Holmes’ “lack of motivation” was part of his mental illness.
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9:56 a.m.
A different paragraph says other students “mistook” Holmes’ demeanor as being normal for intelligent scientists in the graduate program. Orman said that is argumentative and there was no evidence presented that specifically states that.
Nelson disagreed. There has been testimony that has support this idea.
Samour agreed with Nelson for the first part of the paragraph. He agreed with Orman concerning the last sentence. There has been expert testimony that supports the idea, but the last sentence is not necessary.
The last sentence will be deleted, Samour said.
Nelson proposed a sentence to replace it. The judge accepted that sentence and said he will put it in the instructions.
Paragraph 39 talks about a violation of HIPAA. Orman calls the language argument and it is improper in an instruction, he says.
Nelson said that Fenton testified about it.
“I don’t know why that applies here,” Samour said. “I’m going to take that out.”
Samour did not allow Nelson to make an additional record.
Nelson asked to add language that Fenton called Holmes’ mother without his permission.
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10:09 a.m.
Orman said he needs to go back to the first paragraph.
“You’re going backwards now,” Samour said.
Samour scolds Orman for going backwards.
“At which point do we just move forward?” Samour said. “Are there others we’re going to go through again?”
Samour said he is watching the clock and he still has to rule on the slides.
“Would you like to take a break?” Samour asks forcefully.
While Orman discusses taking a break with the prosecutors, defense attorney Rebekka Higgs points the judge to the place in the transcript where Reid discussed Holmes’ jail writings. Based on that record he denied the prosecution’s objection.
Orman said he does not need to take a break. He has one more request.
He requested that the judge put a title on the instruction informing the jury that the instruction is the defense’s theory of mitigation. Nelson objected.
Samour said he thinks a title would be appropriate because this instruction is different from the rest.
Nelson asked that if they add the title, the judge also add the language she proposed earlier. She asked that the judge take out the cautionary sentence that was inserted into the instructions at the prosecution’s request.
Orman said the sentence is necessary. Samour agreed with him.
That was Orman’s last request.
Samour stepped down to make changes to the jury instructions.
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11:21 a.m.
Samour took the bench at 11:14 a.m.
“I’ve got the jury instructions and verdict forms finalized now,” Samour said.
The judge now wants to discuss the PowerPoint presentations.
Arapahoe District Attorney George Brauchler discussed his concerns about defense attorney Tamara Brady’s slides. He said Brady made some changes based on his concerns.
He said the defense has incorporated a bunch of the slides he used in his closing. Those slides have to do with with Dr. Metzner. Brauchler had an objection to one of those slides.
In this context, the slide misstates Metzner’s testimony, Brauchler said.
Brady said the slide goes to Metzner’s testimony about mental defects. It speaks to mental illness and not the ability to distinguish between right and wrong.
Samour asked if Brady had a specific reference to Metzner’s testimony discussing this issue.
Brady said she will take the slide out.
“I don’t think it’s worth fighting over,” Brady said.
That was Brauchler’s only objection.
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11:34 a.m.
Next, Brady presented her objections to Brauchler’s slides.
She objects to any slide in which Brauchler pulls out statements Holmes wrote in his notebook or writings he did in jail. She asked that each time he use a statement that he also states the mitigating evidence he is trying to rebut.
Brauchler argued that he has made additional changes to the order of his slides. He asked to be allowed to print the slides one more time to give to Brady.
The first time he uses Holmes’ statements is from the notebook. They are all slides that will be used to show that Holmes was not suffering a mental defect that would keep him from understanding the law.
Brauchler said he already made some changes. Samour ruled that the slide may be used.
Brady said she wants changes for each slide that includes excerpts of Holmes’ writings or statements to doctors.
Brauchler points to a different slide and said the quote from Holmes shows his attempt to flee from the law. It speaks to Holmes’ capacity to conform to the law.
A different slide includes a message that Holmes sent. The message talks about being “evil.” Brady objected to using the word evil because this is a capital case.
The slide shows that Holmes knows what he is doing is wrong, Brauchler said.
Samour overruled Brady’s objection.
Next, Brauchler explains that a slide discussing the defendant’s Vicodin goes to the same point.
Brady brings up a different slide with an excerpt from Holmes’ notebook. Brauchler had the same argument that the slide speaks to Holmes’ conduct and capacity.
Samour overruled the objection.
Brady objected to a slide that says “selfish.”
The word applies to motive, Brauchler said. Slides “cruel twists of fate” and a slide that says “research firearms” apply to the same issue, he said. Metzner used the word.
The objection was overruled.
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11:47 a.m.
Brauchler included slides that he feels explain reasons other than mental illness for the crime. Samour said they were appropriate.
Next, Brauchler added a slide with the quote, “I hate everybody” which Holmes told Dr. Jonathan Woodcock.
Samour gave the same ruling.
The next slide in question speaks about notoriety being a motivation for the attack, Brauchler said. Samour gave the same ruling, but cautioned Brauchler not to confuse the jury.
Brady objected to other slides that include statements made to Drs. Reid and Metzner. Brauchler said he had the same argument. Samour gave the ruling.
Next, Brady objected to the phrase “kill box” being used.
Samour has previously ruled that the phrase is inappropriate.
“The question is whether it is appropriate here,” Samour said.
The judge rested his head in his hand as he thought about the slide.
Brady said the phrase is a statement of personal opinion.
“You can call it a shooting in a theater and that accurately describes what it was,” Brady said.
Samour decided the phrase was argument and he overruled the objection.
Next, Brady objects to the wording “his victims.” She’s made the objection before.
Samour again overruled the objection.
“At this juncture the jury has found the defendant guilty,” he said. “I don’t see anything improper about saying ‘his victims.'”
Brady objects to a photograph of the rifle, blood and a pink flip flop being shown to the jury again. Brady has raised this objection before.
Samour overruled the objection.
Brady objected to photographs of injuries being shown to the jury again. She’s raise d the issue before. Samour overruled the objection before.
Brauchler said he does not plan to show autopsy photographs. But he does plan to show photographs of the victims before they were removed from the theater.
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12:01 p.m.
“I understand these are graphic pictures, but this is a graphic crime,” Samour said.
The photographs are appropriate, Samour said.
Samour reminded Brady that she needs to object if she thinks Brauchler goes too far during his closings.
Brady tells the judge that she would like to use the chart that was used during jury selection to show the jury where they are in the process.
The judge said it will take more than an hour to read all the instructions to the jury. He will read the instructions, take a break and then the attorneys will present their closing arguments.
Brauchler objected to any statements about not sentencing someone with mental illness to death. He argued that it is inappropriate to make an argument at this point.
Brady argued that it is appropriate because if jurors finds themselves in a position where they don’t think a mentally ill man should be put to death, then they have concluded that the mitigation evidence outweighs the proven aggravating factors.
The judge said it is OK for Brady to refer to the “ultimate outcome” because in a way the jury is making a decision that could affect it. He cautioned her not to do anything that would contradict the instruction.
Brauchler said a blanket statement about “mental illness disqualifying from death” is not appropriate here.
The judge said he does not want to “rule in a vacuum.” Samour cautioned Brady again.
Samour stepped down
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12:25 p.m.
Samour took the bench at 12:22 p.m.
Before the jury was brought in, the judge told the attorneys that he has distributed the final jury instructions and verdict forms. Neither prosecutors nor defense attorneys had any additional issues to address.
Brady and Brauchler have each asked for time warnings.
The judge will read the jury the instructions first.
The jury was brought into the courtroom.
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12:37 p.m.
Once the jurors took their seats, Samour welcomed them back and thanked them for their patience.
Samour asked Brauchler if prosecutors would like to present rebuttal evidence.
“No, sir. We do not,” Brauchler said.
Copies of the jury instructions for phase two were distributed to the jury. A sample verdict form was also handed to the jurors.
Brady asked if attorneys could approach the bench to speak with the judge. Nelson — carrying a copy of the jury instructions — and Orman walked up to the bench.
After the bench conference, Samour told the jury that the instructions were missing a page. The judge’s staff will print copies of that page and then jurors will insert that page into their packets.
Defense attorneys will present their closing arguments first. Then prosecutors.
Samour reminds the alternate and deliberating jurors of the protocol they will follow once the deliberations begin. Again, all of the admitted evidence — with the exception of the live ammunition — will be with the 12 deliberating jurors.
Once the jury reaches a verdict, there will be a delay of two hours before they are read in the courtroom.
“Please plan ahead,” Samour said.
Copies of the missing page of jury instructions were handed to the attorneys first. They agreed that it was the right page.
The judge will re-staple the jury instructions for the jurors at the break.
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12:49 p.m.
The judge started reading the instructions. There are 22 instructions.
Instruction One tells the jury that Phase Two has been completed. Jurors need to remember that the first part of the proceedings are the “trial.” The current proceedings are the “sentencing hearing.”
The jury can only base their verdict based on the evidence presented and they may only consider some evidence for the limited purpose for which it was presented. Jurors are not allowed to discuss the case or this kind of case with anyone, they are not allowed to gather information on their own or conduct research and jurors are not allowed to read or view any media reports about the case.
Jurors are not allowed to have any contact with any of the jurors who were discharged. While deliberating, the jurors are not allowed to have any cell phones or electronic devices.
All deliberations must happen in the jury room while all 12 deliberating jurors are present.
The phase two verdicts must be based on the jurors’ individual moral reasoning of judgment.
Jurors are not to draw any conclusions or inferences from objections raised during the proceedings. They are not allowed to consider answers witnesses gave after an objection was sustained.
Samour reminds the jurors that he has not chosen a side on this case.
The second instruction explains a mitigating factor is not an “excuse or justification for the crime.” It is a factor that may diminish the appropriateness of a death sentence. It is any evidence that weighs in favor of a life sentence.
Mitigation is not restricted to the crime itself. It can include facts or circumstances relating to Holmes’ character, background or mental health. Any of the evidence can be considered as mitigating evidence. The list of mitigating factors are examples of mitigation, but they are not restricted by the list.
Instruction three lists the some mitigating factors including his age, emotional state at the time of the crime, no criminal history, Holmes’ cooperation with law enforcement, Holmes’ mental health. None of these can be considered aggravating factors that support a death sentence.
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1:02 p.m.
The fourth instruction outlines the defense’s mitigation theory in this case.
Holmes suffers from some form of schizophrenia, his mental illness caused the crime.
“Without his mental illness this crime never would have taken place,” Samour read.
The instruction describes the history of schizophrenia in Holmes’ family, including his paternal aunt who has been hospitalized for auditory hallucinations.
Holmes’ age at the time of the crime — 24 — may be considered a mitigating factor. He has never been arrested or convicted of a crime.
The instruction outlines Holmes’ life in northern California. Holmes’ parents continue to love and support him, the instruction read. Others found Holmes to be sweet, gentle and never a disciplinary problem.
Holmes was 5-years-old when his sister was born. He was gentle with his sister and was a “kind and patient” big brother, Samour read. Holmes’ sister continues to support and love her brother.
Elementary teachers never saw Holmes be mean to other students. Holmes’ teachers care about him and continue to care about him, the instruction says.
The family moved two weeks before Holmes was done with sixth grade. The move was difficult and his mother tried to help him make friends. Holmes became increasingly isolated and withdrawn — those were symptoms of his illness, the instruction reads.
Unbeknownst to anyone, Holmes started having homicidal thoughts and his family’s nature was to be stoic and not complain and not appear weak, Samour read from the instruction. Holmes never got into trouble, but he did not seem like a happy teenager to his teachers.
Holmes struggled to get close enough to people to participate in the cross country team photograph in high school; this and other traits were symptoms of his mental illness, the instruction said.
Despite increasing homicidal thoughts and anxiety, Holmes strived to be a good student, friend and brother, Samour read from the instruction.
The instruction outlining the defense’s theory is nine pages long.
As an undergraduate student, Holmes was described as being mellow, introverted and shy. Holmes’ friends continue to support him, Samour read from the instruction.
The defense’s theory also outlines Holmes’ work at a children’s camp and his volunteer work delivering supplies to an orphanage in Mexico.
Holmes’ lack of motivation after he graduated college was a symptom of his illness, Samour read.
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1:13 p.m.
Holmes wanted to study neuroscience so he could “fix his broken mind,” Samour read from the instruction.
What appeared as a lack of motivation in graduate school and his efforts to avoid other students were the signs of increasingly negative symptoms as Holmes’ mental illness progressed.
After his relationship with his girlfriend ended, Holmes homicidal thoughts increased. In mid-March 2012, Holmes sought help from student mental health services and immediately disclosed that he was having thoughts of killing people. Holmes was referred to Dr. Lynne Fenton.
Fenton suspected that Holmes had psychotic level thinking, Samour read from the instruction.
The medication Holmes received could cause an increase in symptoms, the instruction said. Holmes expressed ambivalence about his homicidal thinking, which is part of the psychotic process, Samour read from the defense’s theory.
Holmes’ mental health was in decline while he was seeing Fenton. She saw that he was “intermittently functioning at a psychotic level.”
There is a statute in Colorado that allows people to involuntarily hospitalize people. Fenton did not hospitalize Holmes, Samour read.
When Fenton called Holmes’ mother without his permission, she did not tell her that her son was having homicidal thoughts. Fenton never returned a call from Holmes’ parents, Samour read.
Holmes’ mental illness grew worse and he started amassing weapons and other equipment. He joined adult dating websites, went to shooting ranges and took a motorcycle class. All of these things were part of his symptoms, Samour read from the instruction.
He also started writing in his notebook during the same months, the instruction said.
As a delusional belief overwhelmed Holmes, he did not think his condition was manageable, Samour read.
Holmes cooperated with police and disclosed that he had explosive devices at his apartment. He “manically fidgeted” at the interrogation room after the attack. The instruction describes Holmes’ behavior during that time.
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1:22 p.m.
Holmes remained psychotic after his arrest, Samour read. The instruction describes the time Holmes was taken to Denver Health Medical Center in November 2012. Psychiatrists found that Holmes’ symptoms were consistent with psychosis.
Anti-psychotic medications have been prescribed to Holmes and his condition improved. He is still on anti-psychotic medications. Those medications do not treat all of his symptoms and are not a cure. Holmes acknowledges that he needs his medications and they help him, Samour read.
Schizophrenia is a life-long disorder and involve a decline in function over time, the instruction reads. Mental disorders are not caused by character flaws and Holmes did not choose his mental illness.
Holmes still struggles to explain why his condition took control of his mind, Samour read.
Suffering from a mental illness is not a pleasurable experience for Holmes, Samour read. Holmes has no history of being cruel or mean to people or animals.
Instruction Five outlines that each juror must determine for each of the 24 counts whether mitigating factors exist. Each juror must decide what constitutes a mitigation fact or circumstance. They can give whatever weight they feel is appropriate to each mitigating factor.
For each count, the jurors must weigh each mitigating factor against aggravating factors. Again, each juror must decide individually how much weight to give mitigating factors. They may only consider the aggravating factors that they found exist in the first phase, meaning they cannot consider the aggravating factor that Holmes intentionally killed a child under 12.
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1:32 p.m.
The jury’s decision should not be “mechanical” or “mathematical.” They cannot compare the total number of mitigating factors to the aggravating factors. They may not apply arbitrary value to them.
The sixth instruction tells the juror that there are two first-degree murder for each of the 12 victims. The jury alone will determine the sentences for those crimes, Samour read. That means that they must decide — for all 24 counts — if the mitigation factors outweigh the aggravating factors.
Instruction seven requires that the jury treat Holmes as a unique human being. They are not allowed to consider public opinion.
The eighth instruction tells the jury that they may show Holmes mercy.
The next instruction explains that the case will only move onto the third phase if they find the aggravating factors outweigh the mitigating factors. If the mitigating factors outweigh the aggravating factors Holmes will be sentenced to life in prison.
Instruction 10 tells jurors that neither side has a burden of proof in phase two of the sentencing hearing. Still, the degree of certainty of beyond a reasonable doubt still apply. Jurors must be convinced beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors, if that is the jury’s verdict.
Instruction 12 explains that the jury should not be biased against the prosecution because they are seeking the death penalty.
Instruction 14 reminds jurors that they alone determine the credibility of the witnesses.
The 15th instruction explains that jurors are not bound by the testimony of an expert witness.
The next instruction details that the evidence admitted during phase two may only be considered for the purpose of mitigation. It may not be considered for any other purpose. Any evidence entered for Holmes’ plea of not guilty by reason of insanity may only be considered for mitigation purposes.
Instruction 17 reminds jurors that Holmes has the right not to testify.
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1:47 p.m.
Instruction 18 tells jurors that they are not to draw any inferences if the judge did not read a question that they submitted. The judge has to decide if the questions are appropriate.
The 19th instruction explains that jurors should rely on their memory as much as possible.
Instruction 20 details how jurors should submit questions during deliberations. Again, the judge may not be allowed to answer some questions.
The next instruction states that jurors do not have to explain or justify to other jurors why they reached the decision they did. Still, jurors must consult with each other and deliberate.
The 22nd instruction explains the 24 verdict forms that will be given to the jury. For each form, the jury must mark whether all the jurors find that the aggravating factors outweigh the mitigating factors or if one or more jurors find that the mitigating factors outweigh the aggravators.
Samour read a phase two verdict sample form to the jury. Unlike previous verdict forms, all the jurors must sign if they find that the aggravating factors outweigh the mitigating factors.
“With that folks, let’s take a break,” Samour said.
He reminded jurors that they are not allowed to start deliberating.
Samour released the jury for a 20-minute break.
After the jury was out of the courtroom, Samour asked the attorneys about Instruction 16 and how it does not address statements that were admitted only to place Holmes’ in context. He does not think it is necessary to add anything, but he wanted to point it out.
Brady said she wanted to make three quick objections to Brauchler’s PowerPoint presentation.
She objected to a slide that states that “mercy must be based on evidence presented.” She also objected to a slide that states the “defense’s theory of mitigation” and a slide that states that “mitigating factors that do exist do not outweigh aggravating factors.”
Brady said the last statement was a proclamation.
Samour overruled the first two objections.
For the third slide, Brauchler said his slide facilitates a conversation about the law.
Samour told Brady that she may object if she feels it’s necessary while Brauchler is presenting his closing arguments. He overruled her objection.
The judge stepped down.
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2:11 p.m.
After the break, the jury was brought back into the courtroom.
Brady began her closing statements. She smiled softly at the jury.
“When does mitigation outweigh aggravation? When the mitigation is the cause of the aggravation,” she said.
“The psychosis is what caused James Holmes to shoot the people in the Century 16 theater,” Brady said.
Had Holmes not been mentally ill, he never would have dyed his hair orange, he never would have bought ammunition and this “heartbreaking” crime would have ever occurred.
“Nothing can erase July 20, 2012,” she said.
“Mitigation is the character and background of James Holmes,” she said. “It is anything that you individually, each one of you, consider for a life sentence.”
Mitigation is not an excuse, justification or a defense.
“The defense part is over. That was the insanity defense and that part is over,” Brady said.
Whether Holmes goes to a psychiatric hospital is off the table.
“You have declared that he will be punished. And he will be punished,” she said.
Family, teachers, neighbors were called for two reasons. The first is before “you decide whether a man lives or dies you have both the right and responsibility to know everything about his life.”
Second, it shows that Holmes was once a happy, normal young boy before his mental illness stole that from him, she said.
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2:20 p.m.
“He is not a selfish or self-absorbed person,” Brady said.
Holmes was raised to give back and when he was young “everything seemed fine,” she said.
Photographs of Holmes as a child flash on the screen behind Brady. She speaks in a voice more forceful than the jury has heard from her before.
“They all said that they still love and support him even thought they haven’t seen or heard from him for years,” Brady said.
Holmes changed. He stayed inside and didn’t want to interact with anyone. He had some friends to play cards with during lunch, but in middle and high school his closest friends were only at his house one time.
“By all indications he was a good student. He was polite. He was never mean or rude,” she said.
The progressive introversion is the start of Holmes’ schizophrenia, Brady said. At UC-Riverside, Holmes’ friends had to drag him out to do things. He was not the kind of person to organize an outing — it was an example of his mental illness setting in.
Despite his grades, graduate schools didn’t interview Holmes after graduating. But he never acted out in anger.
“He had absolutely no history of acting violently,” Brady said.
Holmes was reclusive when he moved home.
“It was more than just being shy,” Brady said.
Holmes’ acceptance to CU led him to Colorado.
“This is really important,” she said. “He commits himself that this social aspect of school is going to work.”
Holmes had a girlfriend and a couple of friends. And for a while everything went Ok. But the lab work and presentations were difficult for Holmes.
“His social anxiety was getting to the point where he could not do those things,” Brady said.
By his final exams Holmes was so sick that he was “off the track.”
When Holmes was 14 he decided to study the brain, because he knew that his mind “was broken” and maybe he could fix it, Brady said.
“If he could fix it he wouldn’t have to suffer the embarrassment of the stigma of mental illness,” Brady said. “He wanted help but he didn’t want anyone to know. And that was his dilemma.”
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2:31 p.m.
“Mental illness runs in this family, and when James Holmes was born he got it,” Brady said. “It was in his DNA.”
In the spring of 2012, Holmes realized that he was loosing his battle and he needed help. The moment he walked into the student health center he told them that he had thoughts of killing people, Brady said. During his seven appointments he told them that he had thoughts of killing people.
“He’s ambivalent. He wants Dr. Fenton to help him, but he doesn’t,” Brady said. “He is having these thoughts because he is sick.”
Paperwork found in Holmes’ apartment said that the medication he was prescribed could cause him to act on violent impulses. Five days after starting the medication, he told his former girlfriend about doing something “evil.” Holmes felt the medications may have made his symptoms worse.
The dosage of the medication was increased twice. Shortly after he starts ordering guns, road stars and “stuff that is completely and absolutely out of character for James Holmes,” Brady said.
“He began to prepare for what he called a mission,” she said. “That mission took over his life.”
The four doctors who examined Holmes diagnosed him with a schizophrenic spectrum disorder. Three of them said he was having delusions, Brady said.
Brady reminds the jury that Dr. Reid said that absent Holmes’ mental illness, the crime never would have taken place.
There’s evidence that Holmes was mentally ill before, during and after July 20, 2012, Brady said.
Before the shooting, Fenton’s notes indicate that Holmes was on the verge of a psychotic break. The notebook does the same, she said.
“The first half of that notebook is just disorganized thoughts,” she said. “It’s just the writings of a psychotic person.”
Brady read from the notebook.
“He applies that psychotic level of thinking to that psychotic plan he comes up with about the theater,” she said.
Jurors were shown photographs of Holmes smiling with a gun, with orange hair and black contacts.
“Does that look like a neuroscience student to you or does that look like someone who is in the middle of a psychotic break?” Brady almost yells at the jury.
Holmes’ actions in the interrogation room were “not the appropriate reaction.”
“That is the reaction of a schizophrenic person who is psychotic,” Brady said.
The symbol Holmes wrote in his notebook he also keeps in his jail cell.
“Can you imagine what it took for the jail to call an ambulance for him twice?” Brady said.
— — —
2:42 p.m.
In November 2012, Holmes was “scared of something that is not there,” Brady said.
Metzner was called during this phase because he was appointed by the court, he didn’t change his practice to suit anyone, he is board certified and he has done hundres of sanity evaluations. Brady uses slides that Brauchler used in a previous closing.
Brady flips through the slides that explain Metzner’s credibility.
“Make no mistake about it he said that Mr. Holmes is severely mentally ill,” Brady said.
Metzner never met attorneys before the case. Again, he found that “but for the psychosis the shooting would never have happened…People don’t choose to be mentally ill.”
“Yeah he can make decision but the decisions he makes are tainted by the mental illness. And the choices he makes are tainted by the mental illness,” Brady said.
Holmes’ mental illness causes “inappropriate numbing responses.” That led to his plan to shoot people in the theater.
“No one. No one has said that Mr. Holmes is malingering, faking or exaggerating his symptoms,” Brady said.
“The mere senselessness of it makes it psychotic,” Brady said.
“All it was, was James Holmes and that delusion of human capital,” Brady said.
Holmes was not looking for media attention, Brady said. This had nothing to do with notoriety, Brady said.
A video clip shows Holmes saying that he “didn’t think about” being remembered.
“How’d you want to be remembered?” Dr. Reid asked.
“I don’t remember that being a reason at the time,” Holmes said.
“A reason for doing what?”
“For the shooting.”
“It was not about notoriety. It was not about hatred. It was about the delusion,” Brady said.
Holmes will always suffer from schizophrenia, she said.
“We have all watched him during this trial,” she said. “We look at him and we look at him and we look for a response and there is rarely ever a reaction.”
That is a result of Holmes’ medications. Those medications keep Holmes from wanting to “ram his head into a wall” and from thinking that his food is poisoned. He takes the medication “faithfully.”
Brady says that if jurors are “not sure” that mitigation outweighs aggravation, “now is the time to say something.”
“You give the word and this ends with a life sentence,” Brady said.
— — —
2:51 p.m.
“Now you know a lot about the James Holmes before that mental illness robebd his future,” Brady said.
Brady raised the fact that prosecutors have asked if Holmes’ function was affected. Then she described Holmes smearing feces, licking his cell wall and doing flips with a cup on his penis.
“If that is not mental illness that affects your functioning what is?” Brady asked.
“He is obviously mentally ill,” Brady said.
A photo of Holmes as a child is shown next to a photo of Holmes with orange hair.
Brady asked if anyone thinks the mitigation outweighs the aggravation to tell their foreman. Brady sad down.
A model of the inside of the theater was moved in front of the jury and Brauchler began.
“What if he had chose to only murder three?” Brauchler asked.
He showed a photograph of Gordon Cowden. Then he showed jurors a photograph of Cowden dead inside the theater. He did the same for Rebecca Wingo and Jonathan Blunk.
“This is is that father of two after the defendant,” Brauchler said holding up a photograph of Blunk dead inside the theater.
Brady objects when Brauchler tells the jury that this is not the phase when jurors consider whether to sentence Holmes to death.
“In a way both lawyers are right,” Samour told the jury.
Brauchler continued.
“You have to determine what mitigation exists,” Brauchler said. “Is there anything or everything that you saw in the last week that could outweigh what happened to Gordon Cowden and the other two parents?”
Brauchler said that the jury can only consider mercy for Holmes. Not mercy for the victims.
Again, Brady objects and the judge asks them to approach.
— — —
3:00 p.m.
Samour sustained the objection but allowed Brauchler to clarify.
The word sympathy flashes before the jury.
“It is right to feel sympathy for the parents of a mass murder,” Brauchler said. “It is impossible to imagine what they are going through…All of that is true and it is right that you feel it. Where it cannot play a role is in this phase.”
If jurors feel sympathy, it can only be sympathy for Holmes. Not for his parents, Brauchler said.
“Nobody is born a mass murderer. That happens later,” he said. “There are decisions and ramifications that happen.”
Brauchler asked how many home movies and photographs could outweigh that “horror.”
“Kids change,” Brauchler said. “People change with or without anything else going on with mental illness.”
Brauchler points out that no one saw a difference in Holmes after age 11.
“What if he would have stopped murdering at four. And he stopped with Alex Sullivan,” Brauchler said.
Brauchler showed the jury a photo of Sullivan and a photo of him inside the theater.
Instruction Four is the defense theory of mitigation, Brauchler said.
“You don’t’ have to consider it as a fact,” Brauichler said.
Brady objected and asked to approach.
Samour overruled the objection.
Brauchler called the instruction a second closing statement.
The word “Blame” flashes in front of they jury. Brauchler said the defense encourages the jury to blame the medications and Fenton.
“That’s not what this is about,” Brauchler said.
The law doesn’t say that mental illness trumps other aggravators. Mental illness isn’t even in the law, Brauchler said.
“Is this mental illness a shield to treat him differently,” he said. “Not having the same brain that we have protects you.”
A woman is then heard screaming from the gallery.
“Don’t kill him! Don’t kill him!”
She could be heard screaming as the deputies took her out of the gallery.
— — —
3:10 p.m.
Brauchler began again but the woman could be heard screaming in the hallway.
Brauchler paused.
When he began again, Brauchler points out Metzner’s testimony. Holmes’ delusion can’t be proven false, he said.
“This guy right here cannot tell the same story twice to any of these mental health providers about what drives him to kill,” Brauchler said, pointing his thumb behind him.
They all believe that his belief is his motive, Brauchler said.
When Holmes wrote the notebook, he knew that it wouldn’t be kept secret, Brauchler said. It was Holmes’ explanation.
Holmes has the ability to make choices, Brauchler said.
“It doesn’t keep him from making the decision not to kill,” Brauchler said.
“What if he has stopped murdering with John Larimer?” Brauchler asked.
A photograph of Larimer dead inside the theater is shown to the jury.
“This is John Larimer after the defendant,” Brauchler said.
Holmes e-mailed his dad about his IRA at the same time he was withholding information from his psychiatrist in 2012, Brauchler said.
“Where is the impairment?” Brauchler asked.
On July 8, he misled a woman he was texting with.
“This is someone who has the capacity to make choices and decisions,” Brauchler said.
Holmes researched laws and tinted his windows.
“He’s anticipating the law intervening in his massacre,” Brauchler said.
— — —
3:22 p.m.
“This guy knows what he is doing is wrong. This guy knows what he’s doing is illegal,” Brauchler said.
Holmes motive was “selfish.”
“It was all about him from start to stop,” Brauchler said.
“What if he stopped killing at six?” Brauchler asked.
Brauchler held up a photograph of Jesse Childress inside the theater.
“That’s halfway folks.”
“What if he had stopped killing with Alexander Teves?”
Brauchler describes the romantic rejection and academic failures that Holmes was facing. With his love gone, he turned to hate.
Brauchler showed the jury a photograph of AJ Boik.
“Of all the things you’ve heard this week, would they outweigh that?”
Next, a photograph of Matthew McQuinn was shown. Then a photograph of McQuinn in the theater was shown to the jury.
Even if Holmes didn’t send the photographs to The New York times, he took “them for The New York Times.”
Brauchler flipped through the photographs Holmes took in his apartment.
Holmes cooperated for notoriety and “it didn’t cost him anything to cooperate,” Brauchler said.
“This is why he did this,” Brauchler said, pointing to photographs of women Holmes has in his cell. There are no photographs of the family dog, Brauchler said.
“What if he stopped at 10?” Brauchler asked as a photograph of Micayla Medek was shown to the jury.
Holmes “traps the people he wants to kill, Brauchler said. Brauchler planned for three months and he was patient inside the theater as he watched people take their seats.
“What if he’d stopped killing at Jessica Ghawi?” he said. “Anything you’ve seen outweigh the dead?”
— — —
3:28 p.m.
“If you close your eyes you can picture it all,” Brauchler said.
Holmes knew that everyone in the theater would be scared they would die, Brauchler said.
“There’s not a single throwaway decision,” he said.
Holmes brought enough ammunition to kill everyone “almost twice.” Brauchler flipped through photographs of the 70 injured.
“This is how he finished up,” he said. “Four bullets into this one.”
A photograph of Veronica Moser-Sullivan was shown to the jury.
“He knew what he was doing was wrong. He weighed his options. He made his choice and his decision. And now you must weigh and make yours,” Brauchler said.
Brauchler points at Holmes.
“He made a decision to massacre, and he did. Twelve dead from the community. Can anything outweigh that?” Brauchler asked. “No. No.”
Brauchler sat down.
“You are all to disregard the outburst that happened here today. You should treat it like it never happened,” Samour said.
The judge released the jury.
— — —
3:35 p.m.
Once the jury was out of the courtroom, Orman said he wanted to create a record of what the woman screamed.
“This was a woman who has indicated to the sheriff’s department that she is homeless,” Samour said.
The deputies had concerns about her but because it is an open courtroom and she did not display any concerning behavior they could not keep her out, Samour said. She will not be allowed back in.
Orman described the outburst as “contemptuous” and he has never seen anything that bad.
“If there was ever a circumstance where a person deserves to be found in direct contempt of court it’s this,” Orman said.
The woman is currently being detained, Samour said.
Brady said it was obvious that the woman is mentally ill and she does not know if holding her in contempt is going to do anything useful. Maybe it would be “more humane” to have the county attorney inquire if she needs services.
“The sheriff was very clear with her about the rules,” Samour said.
Samour said that he would not assume she was mentally ill.
Brauchler said the outburst distracted the jurors. Numerous jurors were not tracking the closing and some of them continued to watch the door.
“Several of the jurors seemed unfocused,” Brauchler said.
The judge said he is confident that the outburst will not affect the jury’s decision.
Jordan Steffen: 303-954-1794, jsteffen@denverpost.com or
