ARAPAHOE COUNTY — — Denver Post reporter Jordan Steffen’s updates from Day 61 of the Aurora theater shooting trial at the Arapahoe County Justice Center in Centennial, Colorado.
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Day 61
Jurors in the Aurora theater shooting case resumed their deliberations on Monday in the second phase of the sentencing hearing.
Defense attorneys and prosecutors presented their closing arguments in the “mitigation” phase of the hearing on Thursday. The jury of nine women and three men deliberated for less than an hour on Thursday and they were off on Friday.
During phase two, James Holmes’ attorneys presented “mitigating” evidence, meaning any evidence they feel suggests a sentence of life in prison without the possibility of parole. Holmes’ attorneys called his teachers, childhood friends and family members to the stand in an effort to provide jurors with details of Holmes’ life.
Now, jurors will have to decide whether the things that make the Aurora movie theater murders so horrible outweigh the details about 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, relatively young age and trouble-free adolescence — 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.
Jurors have indicated that they will deliberate from 8:30 a.m. to 4:30 p.m.
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WATCH:
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10:28 a.m.
Shortly after 9:55 a.m., the jury submitted a question to the judge.
The jury submitted a question to Judge Carlos Samour Jr. around 10 a.m.
Samour took the bench around 10:24 a.m. Holmes, his attorneys and prosecutors were in the courtroom.
The judge read the question.
“The jury has reached a verdict on all counts.”
But a few minutes later the jury submitted a second note saying that the jury made an error on the verdict forms for counts one and two. The jury asked for replacement copies of the verdict forms.
The judge suggested two responses.
The first is that the jury correct any errors by hand or that the jury be given new verdict forms and cross out the old ones.
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More info:
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10:30 a.m.
Brady said she would like to give the jury new verdict forms. Prosecutor Rich Orman asked to have the originals stapled to the new forms.
Samour said as long as it is clear which forms are void he would prefer not to staple the forms together.
“Let’s plan on me announcing the verdicts around 12:30,” Samour said.
The attorneys agreed and Samour stepped down.
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HIGHLIGHTS:
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12:31 p.m.
Samour took the bench at 12:30 p.m. Defense attorneys and prosecutors are in the courtroom.
Before the jury was brought in, the judge addressed people in the gallery.
“This is a public trial and I want everyone to feel welcome and comfortable here,” Samour said.
But the judge cautioned people that if they feel any audible comments or emotional outburst they need to exit the courtroom. They may return to the courtroom.
The jury was brought into the courtroom. The alternates were brought in first. The the deliberating jurors.
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12:38 p.m.
Once the jury was seated, the judge asked the foreman if the jury had reached a verdict in the second phase of the sentencing hearing.
The foreman said they have.
The judge was handed a brown envelope with the verdict forms inside. He read from the verdict forms.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder after deliberation for Jonathan Blunk.
The case will move to the third and final phase.
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12:40 p.m.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder after deliberation for Alexander Boik.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder after deliberation for Jesse Childress.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder after deliberation for Gordon Cowden.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder after deliberation for Jessica Ghawi.
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12:42 p.m.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder after deliberation for John Larimer.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder after deliberation for Matthew McQuinn.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder after deliberation for Micayla Medek.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder after deliberation for Veronica Moser-Sullivan.
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12:43 p.m.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder after deliberation for Alex Sullivan.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder after deliberation for Alexander Teves.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder after deliberation for Rebecca Wingo.
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12:45 p.m.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder with extreme indifference for Jonathan Blunk.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder with extreme indifference for Alexander Boik.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder with extreme indifference for Jesse Childress.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder with extreme indifference for Gordon Cowden.
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12:47 p.m.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder with extreme indifference for Jessica Ghawi.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder with extreme indifference for John Larimer.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder with extreme indifference for Matthew McQuinn.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder with extreme indifference for Micayla Medek.
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12:49 p.m.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder with extreme indifference for Veronica Moser-Sullivan.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder with extreme indifference for Alex Sullivan.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder with extreme indifference for Alexander Teves.
The jury found that the proven aggravating factors outweigh the mitigating factors for the charge of first-degree murder with extreme indifference for Rebecca Wingo.
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12:55 p.m.
Once the judge finished reading the 24 verdict forms, everyone was seated.
Defense attorneys asked the judge to poll the jury.
He asked each of the deliberating jurors:
“Are these your phase two sentencing verdicts and the jury’s phase two sentencing verdicts?”
Defense attorney Tamara Brady watched the jury box as each of them answered yes.
The judge shuffled the verdict forms and put them back inside the envelope. Samour told the jurors that he will release them for the day and reminded them to follow all of his instructions.
“You need to make sure that you comply with each and every one of them,” Samour said.
He instructed the jury to come back at 10 a.m. on Tuesday. Samour said he needs to get some work done with the attorneys.
Samour read each of his advisements to the jurors.
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1:01 p.m.
The judge reminded the jurors not to view, read or listen to any media reports about this case or any case like this case. He reminded them to avoid all media reports of the theater shooting in Louisiana.
Samour stressed that jurors are not allowed to start deliberating until the conclusion of phase three.
Neither prosecutors nor defense attorneys had anything to add. The jury was released for the day.
Once the jury was out of the courtroom, Samour proposed taking a break and then coming back to discuss the introductory instructions for phase three. He wants to finalize those instructions before the jury comes back at 10 a.m. on Tuesday.
Both sides have submitted proposed instructions.
Prosecutors said they will need two to three days to call witnesses during phase three.
Samour stepped down.
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3:25 p.m.
Court resumed at 3:15 p.m. with attorneys and the judge beginning to discuss jury instructions for Phase 3.
The court first began talking about the introductory instructions for Phase 3.
Both the prosecution and the defense sent drafts to Judge Samour, who used both to write his own draft. Now, the defense and prosecution ask questions regarding the latest draft.
The defense objects to the jury being instructed on aggravating factors, Nelson said
Again, the defense raises the issue of merger when it comes to the counts of murder.
The second request the defense had was to include a sentence at the end of the first paragraph that conveys to the jury that a life sentence is an acceptable, appropriate verdict.
The prosecution rejects this proposal. Samour said he does not think the sentence adds anything and that if he included that sentence, he would have to say that death is an appropriate sentence.
“I have to be careful when I instruct the jury on the law to be neutral,” Samour said. “I can’t have a position on this.”
The request was denied.
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3:31 p.m.
Nelson said the defense also wanted to add to the instructions that death is the “only” appropriate sentence, rather than just saying death is an appropriate sentence.
The prosecution rejects this.
The judge also rejects this proposal.
“Somehow I believe I have to convey to the jury that they can’t just consider mercy in a vacuum, separate and independent from the evidence and instructions,” Samour said. “I don’t think each juror can exercise his or her individual moral judgment in a vacuum, separate from the evidence and the information presented as well as my instruction of law,” Samour said.
“It’s not up to the court to the tell the jurors how much to consider mercy, whether a little bit or a lot of mercy or something in between. They can consider mercy, and I’m not putting limits on that, as long as it is based on the evidence and the facts presented in the proceedings.” Samour said.
The defense would like to add a line about considering the defendant’s mental illness.
“I think it would be improper for the court to tell the jury that there is a mental illness, and that they have to consider a mental illness,” Samour said, adding that that would be for final arguments.
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3:45 p.m.
The defense also wanted to clarify wording in the instructions from “all jurors” to “one or more jurors are not convinced beyond a reasonable doubt that death is the only appropriate sentence,” to clear up any concerns about unanimously deciding.
Samour accepted this request.
The defense then put forth a proposal to add a sentence to the instructions that reads “each juror may decide for himself or herself the role that mercy plays” in determining the sentence.
Samour said to have it be completly accurate, each juror may decide for himself or herself, if any, the role mercy plays.
“The jury is not required to consider mercy,” Samour said.
The defense then retracted their request.
Moving on, the court is discussing instruction number four about there being no burden of proof.
The defense requests that “a juror may not determine that a death setnence is appropriate unless he or she” is convinced beyond a reasonable doubt and wants that changed to “a juror may not vote to impose the death penalty….”
The prosecution rejected this, saying jurors don’t have to formally vote.
Samour rejected the defense’s request.
“With respect to the definition of reasonable doubt, we maintain and request that the court omit the last paragraph about reasonable doubt…” Nelson said, adding that a paragraph defining reasonable doubt appeared to be different in the Phase 3 instructions than any previous instructions.
“If the court is not inclined to grant that request, it appears that the court has made some changes to that definition, and we think it’s problematic to change the definition of reasonable doubt at this point in the proceedings. We ask that it be given in the same language as previous phases,” Nelson said.
Samour is now deciding whether to modify that paragraph or give the jury the same paragraph about reasonable doubt that has been given in the past.
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3:56 p.m.
Portions of the reasonable doubt definition include: “…a fair and rational consideration of all the evidence or the lack of evidence. It is a doubt that is not a vague, speculative…but such a doubt that would cause reasonable people to hesitate to act…” Samour read from the Phase 2 jury instructions.
“Do I just delete it altogether?” Samour said.
Samour took it out of the jury instructions.
The court moved on to instruction five.
The defense asked the court to add language that contains affirmative language explaining how a jury would reach the point of returning a life sentence.
Nelson wanted a sentence added that tells the jury that they do not need to be convinced beyond a reasonable doubt to give the defendant a life sentence.
She also thought this sentiment might better fit at the end of the second instruction, or perhaps in both places.
“They don’t have to affirmatively choose life…it’s the default,” Nelson said.
Samour considered the defense’s proposal.
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4:11 p.m.
Samour added this language to the end of instruction number two.
The defense had another proposal for the mercy langague back on instruction number two.
“Whether to grant mercy is your decision, alone,” Nelson read, asking the judge to include this language in the instruction.
The prosecution objected, saying this is already fully explained.
The defense said that they maintain their position that mercy is something that the jurors bring and can exercise outside of the evidence.
Of course they bring mercy into the courtroom but they can’t make their decision based solely on that, Samour said.
If the jurors could just decide what sentence is appropriate without regard to the evidence, then why did we take so much time in jury selection and why am I here giving them instructions? Samour asked.
Samour rejected this request.
The court went back to instruction number five on aggravating factors.
The defense said they have a number of issues with this instruction, including that they don’t think this instruction should be given at this time.
Nelson said she does not think this instruction on non-statutory aggravating circumstances applies and asked not to address it at this point.
“The question is should I take it out because these are introductory instructions and we don’t know at this time if the people are going to present non-statutory aggravating circumstances,” Nelson said.
Prosecutor Dan Edwards argues that there are aggravating circumstances already present in the crime itself.
Samour asked the prosecution if they were planning to present new non-statutory aggravating circumstances.
It seems to me it’ll only be relevant at the end, Samour said.
There is a debate as to whether victim impact evidence is non-statutory aggravating circumstances.
Samour said he will think about this one and remains unconvinced either way.
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4:17 p.m.
The defense also has a concern that the instructions suggest that the jury can consider evidence that was offered in mitigation as non-statutory aggravating evidence, if they so choose.
The defense asks for a reminder in the instructions that none of the evidence given in mitigation can be used in consideration for the death penalty.
The prosecution objects to this.
The prosecution said if the jury found the evidence as mitigation, it cannot be used as aggravation, but that perhaps the jury did not find all the defense’s evidence as mitigation.
Samour presented an alternative sentence stating “You are reminded that you cannot consider any mitigating factor as aggravation or as a reason to impose a death sentence.”
In the end, the prosecution proposed deleting that language altogether as to not confuse the jury. The defense agreed.
Samour then said deleting this instruction might be concerning, adding “back to square one.”
The court then agreed to not give this instruction at this time.
The court moved on to instruction number six.
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4:29 p.m.
The defense objected to a few sentences of instruction number six.
Nelson wanted some of the language changed to the following: “However, your consideration must be limited to a moral inquiry into the culpability of the defendant, not an emotional response to the evidence.”
Samour granted this request.
Nelson presented further language concerned with the next instruction.
“It’s a concern for us because the jury is allowed to base their decision on emotions in favor of Mr. Holmes, if any,” Nelson said.
The prosecution rejects this, saying the proposed language is basically a cautionary instruction to the jury that they shouldn’t use prejudice or bias and that they can’t consider prejudice or bias in their deliberations, Edwards said.
Nelson said she is concerned that the instructions make the jury feel that their emotions are irrational or irrelevant in deciding the defendant’s fate.
The judge considered the defense’s and prosecution’s arguments regarding this instruction.
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4:37 p.m.
The defense said again they want to add to the instruction that the jury can consider sympathy for the defendant.
“I think the word sympathy appears in the standard model instructions for trial and I think at your request we took it out because it generally tells the jury that it cannot make decisions based on sympathy,” Samour said.
Samour granted the defense’s language amendment.
Nelson said it is particularly important to point out to the jurors that they can consider sympathy and mercy for the defendant.
Samour added the word “sympathy” to instruction number two.
The instruction now reads that each juror may consider mercy and sympathy for the defendant but mercy and sympathy must be based on evidence from the trial, Samour said.
The court finished talking about the introductory instructions of Phase 3 as of 4:36 p.m.
Samour then began talking about victim impact evidence.
“I understand that this is very difficult for folks. I get that. But I’m going to rely on the lawyers to make sure that they control the testimony,” Samour said.
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4:48 p.m.
The judge then told the defense and the prosecution that some of their objections would have to be made during the testimony and that it would be more effective to do so.
Witnesses intend to talk about the last contact that they had with their loved one, including last phone call, last physical contact, last text message, etc. Samour said the witnesses would have to pick one.
“You can’t go into the last text, the last voicemail, the last email and the last physical contact,” Samour said. “That type of testimony can get dramatic and emotional. It needs to be brief. Same thing to how the witnesses found out about their relative being in the theater and that they had died. That testimony can get emotional and dramatic, and that should be brief.”
Any references to media coverage during the testimony are out, Samour said.
Samour told the attorneys they must keep in mind being cumulative or repetitive during testimony and that the defense can make objections based on evidence being overwhelming or repetitive.
Samour talked about including the impact on friends instead of just family.
Samour said friends can testify but that they are not allowed any evidence on the impact of friends and non-family members. Friends who are testifying can talk about the impact on the victims’ families.
“The last thing I’m going to be saying: I’m going to be watching the jury closely as this goes on. I’m going to be assessing how much I’m going to allow or not,” Samour said, noting how emotional the jury gets and that they are not overwhelmed with the emotion and that the jury’s ability to make a reasonable moral judgment is not interfered with.
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5:03 p.m.
Samour gets into specific prosecution witnesses and if their testimony is permissible.
Samour will not allow testimony about one of the victim’s grandparents having to battle cancer without their grandson’s help.
Samour will not allow a girlfriend of one of the victim’s to address the impact her fiance’s death had on her.
Samour will not allow testimony of a mother who lost her daughter about how she has been attending the trial to honor the memory of her daughter. Samour will not allow testimony from a victim’s mother, Sandy Phillips, about how she is working to change gun laws in response to this tragedy.
Testimony regarding planning for all of their relatives to come for a funeral will not be allowed.
“I just didn’t see that that had much value and given what else the people have disclosed, I’m keeping that out. It just seems to me that this is the type of thing people do whenever someone dies,” Samour said.
Samour said testimony saying “the murder of a 6-year-old girl is an incomprehensible tragedy” will not be allowed because it is not appropriate.
The judge won’t allow testimony regarding how sad it is that Ashley Moser was injured so badly that her daughter’s funeral had to be delayed and some family couldn’t afford to come out again.
“I know that the court is trying to protect a very special balance here,” the prosecution said.
“This is not a case like any other case,” Samour said. “That’s the difficulty. Where do you draw the line? On the one hand giving you the opportunity to paint a full picture and the magnitude of these crimes…on the other, I have to make sure,” that this testimony doesn’t overwhelm the jury to the point that they can’t make a reasonable judgment, Samour said.
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5:08 p.m.
In regards to testimony about the media, the prosecution said some victims learned about their children’s death from the media. Samour said this was OK to discuss, despite the media connection.
“Some of what I’m keeping out is because there is no case law, and you have plenty of victim impact evidence to present,” Samour said to the prosecution.
“If you had one victim and one or two witnesses, I might have come out differently,” Samour said, adding that the prosecution intends to call up to 15 or 16 witnesses that each have quite a few things they intend to talk about, Samour said.
Samour said that the defense has to be allowed to present as much mitigation as possible, while it says to “be careful” when presenting victim impact evidence as to not overwhelm the jury.
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5:24 p.m.
The prosecution argues that the significant others of victims should be allowed to give victim impact testimony.
The defense objects to this.
The prosecution argues that in the definition of “immediate family member,” legal documents state that “significant others” are included.
Samour considers both these arguments and agrees with the prosecution, as long as the prosecution establishes the appropriate foundation of “significant other.”
As the defense presents arguments against Samour’s judgments on not allowing certain victim impact evidence, Samour said he will consider their arguments.
Samour said the jury gets the the points that the prosecution is bringing up.
“The jury gets it. They’re not stupid people,” Samour said.
Samour will think about the prosecution’s arguments in regards to victim impact evidence.
Now, the defense presented their arguments about the victim impact testimony.
Higgs objected to the prosecution allowing more than one witness testifying for the same victim.
She also brought up hearsay as an issue and asks the court to advise that hearsay is not allowed in this testimony.
Samour said if there is evidence being presented that is objectionable due to hearsay, to make that objection when it is presented.
Samour said in regards to more than one person being called for the same victim, to wait until those witnesses make that testimony.
The prosecution said they understand they cannot present cumulative testimony.
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5:34 p.m.
Samour said the prosecution should give general categories before witnesses testify about what witnesses will testify about to fix potential cumulative testimony.
Higgs has an objection to some of the videos and some photographs that the prosecution plans to show.
Samour said the defense is not being timely in this objection and that the court and the defense already reviewed these photos and video.
Higgs said they just got some of the photos last week during the mitigation phase and were just able to review the photos this weekend. She said the prosecution did not specify which photos would be used in a timely manner.
Higgs talked about many photos that prosecutors plan to show are cumulative.
She is sharing these cumulative photos with Samour, who will review them.
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5:55 p.m.
The defense has objections to photos they believe might be older than 18 months old in relation to the theater shooting, as they said is legal. The prosecution said that this was not the case and that the court did not rule on 18 months.
Higgs is presenting many photos the defense finds cumulative, including Alex Teves in five photos with Amanda Lindgnen Teves and showing Veronica Moser-Sullivan’s gravestone.
The prosecution argues that the photos of Alex Teves and Amanda Teves all represent different events in the victim’s life, noting the defendant showed multiple photographs of him and his family.
“Comparisons to mitigation evidence are not very persuasive to me,” Samour said. “It’s not an apples to oranges comparison.”
The prosecution concedes that there are a few cumulative photos that they will remove from testimony.
In regards to other victims’ photographs, the prosecution argues that the photos the defense claims are cumulative are actually in place to show the different moments in the victims’ lives such as Jessica Ghawi’s burgeoning sports career.
The photo discussion is wrapped up around 5:51 p.m.
Samour said he has thought about giving 40 minutes in initial closing arguments and 20 minutes for rebuttal for Phase 3 closing arguments.
The prosecution and the defense agreed to this.
Court adjourned at 5:55 p.m.
The attorneys will meet in court Tuesday at 9:00 a.m.
Jordan Steffen: 303-954-1794, jsteffen@denverpost.com or twitter.com/jsteffendp
