Bloomberg News

Colo. Suspect Faces Potential Capital Charge

July 23, 2012

Suspected Theater Shooter James Holmes Appears in Court

James E. Holmes, left, appears in Arapahoe County District Court, with defense attorney Tamara Brady, right, on July 23, 2012, in Centennial, Colo. Photographer: RJ Sangosti/Pool/The Denver Post via AP Images

James Holmes, arrested in the shooting deaths last week of 12 people at an Aurora, Colorado, movie theater, is being held on suspicion of first-degree murder, a charge that can carry the death penalty.

Before a packed courtroom today in Colorado District Court in Centennial, a suburb of Denver, Judge William Sylvester advised Holmes of his rights and set a July 30 hearing for formal charges. With his hair dyed orange and dressed in red prison clothing, Holmes, 24, sat in the jury box with a defense lawyer, blinking often while occasionally staring at his hands.

Arapahoe County District Attorney Carol Chambers said a decision on whether to pursue the death penalty is months away.

“We will want to get victims’ input,” Chambers said at a press conference following the initial hearing. “Everyone is interested in a fair trial with a just outcome.”

At today’s 20-minute “advisement” proceeding, Holmes didn’t enter a plea or speak. The judge said the defendant has the right to request a preliminary hearing, at which a determination of probable cause may be made, allowing the case to proceed to trial. Holmes is being held without bond and in isolation.

Local police stood guard in front of the courthouse and on the roof, scanning the area with binoculars as cars entered the parking lot. Police tape ringed the entrance to the grounds where U.S., Colorado and Arapahoe County flags flew at half- staff. Members of the news media set up tents in the parking lot amid rows of television satellite trucks.

Since Columbine

The rampage was the deadliest shooting in Colorado since the Columbine High School massacre in April 1999 and the worst mass shooting in the U.S. since November 2009, when 13 people were killed at Fort Hood in Texas.

At least five family members of people who died in the shooting at a July 20 showing of “The Dark Knight Rises” were in the courtroom today, according to Casimir Spencer, a spokeswoman for Chambers.

Capital cases are rare in Colorado. Craig Silverman, a former prosecutor in the Denver District Attorney’s Office who is now in private practice, said the state will need to establish at least one statutory aggravating factor to seek Holmes’s execution following a conviction. The Aurora shooting may qualify because it involves multiple victims, including children.

In Colorado, premeditation would be required to bring multiple counts of first-degree murder, Sam Kamin, a law professor at Denver University, said in a phone interview. Over the weekend, police said they disabled explosive devices at Holmes’s apartment.

Multiple Weapons

The multiple weapons, body armor and booby-trapping allegedly employed by Holmes “shows it was more than a spur-of- the-moment killing or series of killings,” Kamin said. Another aggravating factor “is that the killings were heinous and cruel.”

Three men are on Colorado’s death row, according to the state’s Department of Corrections. The last person executed there was 53-year-old Gary Lee Davis in 1997.

In response to questions following the hearing, Chambers said she expected the issue of venue to be raised.

Lawyers for a defendant may seek to change the location of a prosecution if the nature of a crime, intense media attention or other factors make a fair trial impossible in the jurisdiction where it occurred.

The trial of Timothy McVeigh, who was executed for masterminding the 1995 Oklahoma City bombing that killed 168 people, was moved from Oklahoma to Denver federal court following a successful change of venue request.

Venue Change

Any decision on a venue shift would have to come after significant investigation and analysis, said Richard Burr III, a Houston-based lawyer who represented McVeigh. The decision isn’t necessarily obvious no matter how horrific the crime, Burr said, and a trial in the Denver area may end up being the best bet for the defense.

“Even with this crime and the injury done to the entire community, it’s possible you would get a fairer jury there than you would somewhere else,” Burr said in an interview.

“Changing venue in a case like this is challenging because you’ll be hard pressed to find someone in the state of Colorado who isn’t familiar with this case and who hasn’t been exposed to pretrial publicity,” said Barry Boss, a former attorney for Russell Weston, who was accused of gunning down two U.S. Capitol police officers in 1998.

It’s possible, however, that a judge could move the case to a Colorado jurisdiction where the shooting hasn’t had a direct impact on the community like it did in Aurora, Boss said.

Public Defenders

Holmes is represented by public defenders Daniel King and Tamara Brady, who sat next to him at today’s hearing. Chambers also attended the proceeding with Karen Pearson, the lead prosecutor. James O’Connor, head of the Arapahoe County Public Defender Office, declined to comment on the case or potential motions when contacted following the hearing.

Those killed in the early morning shooting included Jessica Ghawi, 24, an aspiring sports journalist who had survived a previous shooting in June at a food court in Toronto; Alex Sullivan, who was celebrating his 27th birthday; Micayla Medek, 23, of Aurora; and Matt McQuinn, of Springfield, Ohio. At least 58 people were injured in the attack.

U.S. Air Force Staff Sergeant Jesse Childress also died, said Lieutenant Colonel Jack Miller, a Pentagon spokesman. The Navy said that Petty Officer Third Class John Larimer, 27, a cryptologic technician from Crystal Lake, Illinois, was killed.

Critical Condition

Veronica Moser, 6, also died, and her mother was in critical condition, the girl’s great-aunt, Annie Dalton, said in a phone interview. Also slain were Alexander J. Boik, 18, Jonathan T. Blunk, 26, Rebecca Ann Wingo, 32, Gordon W. Cowden, 51, and Alexander C. Teves, 24.

Holmes, who had been a graduate student in neuroscience at the University of Colorado, Denver, didn’t have a criminal record, police said. He attended high school in San Diego, where his parents and other relatives still live. He began buying weapons in May at stores in the Aurora region, said Dan Oates, the city’s police chief.

On the night of the attack, police said Holmes bought a ticket, entered the theater and watched the movie for a while. He then stood, as if taking a phone call, and walked out, propping open the door as he left. Holmes then allegedly went to his vehicle, put on body armor, armed himself and returned to the theater. Police apprehended him behind the building, located in a shopping mall, after the first 911 call at 12:39 a.m.

Three weapons were retrieved at the scene. A fourth, a .40- caliber Glock handgun, was found in Holmes’s car.

Mitigating Factors

Lisa Damiani, a San Diego-based lawyer for his parents, Robert and Arlene Holmes, said Colorado law doesn’t require as rigorous an initial showing of proof by prosecutors as other states, such as California. She added that formal charges have yet to be filed.

“This is an important case,” said Damiani, a criminal defense attorney. “It should be tried in the courtroom and not the media.”

While declining to discuss the defendant’s relationship with his parents, she said the couple’s “hearts go out to the victims and their families.”

As part of the defense case, Holmes’s lawyers will probably search his personal history for “what in his background or character mitigates” the alleged crimes, Kamin said.

Such mitigating factors can be used in the penalty phase of a capital trial to avoid a death sentence.

Under such circumstances, the defendant may admit guilt while claiming mitigating factors, “not to spare him of conviction but to save his life,” Kamin said. The defense may search for any history of abuse, neglect, drug abuse or post- traumatic stress, he said.

Holmes may also seek to present an insanity defense, requiring a determination that he suffers from a mental disease or defect rendering him unfit to stand trial, Kamin said.

Chambers today said she didn’t know whether to anticipate an insanity claim. The prosecution, she said, is in its preliminary stages, and the investigation is continuing.

“We’re still looking at an enormous amount of evidence,” the prosecutor said, adding that trial is at least a year away.

The case is People v. Holmes, 12-cr-01522, 18th Judicial District Court, Colorado (Centennial).

To contact the reporters on this story: Jeff Kass in Colorado District Court in Centennial at kassj@msn.com; Jennifer Oldham in Centennial, Colorado, at joldham1@bloomberg.net; Sophia Pearson in Wilmington, Delaware, at spearson3@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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