Aurora theater shooting trial defense may have strategy in opposing juror exclusions, expert says

CENTENNIAL | A Denver prosecution expert says reluctance on the part of the James Holmes defense team to excuse potential jurors could be a strategic move to work toward a change of venue in the sanity trial.

Another 70 jurors were released Tuesday in the Aurora theater shooting trial, but lawyers for Holmes seemed increasingly reluctant to release jurors before they fill out their juror questionnaire.

In one case, a juror said she is 34-weeks pregnant and in her previous pregnancies delivered her baby before the 40-week mark. Prosecutors and the judge agreed to release the woman, but the defense said the woman should fill out the juror questionnaire before being released.

Another juror brought a note from his doctor saying he has “psychiatric issues” and should not serve on the jury. Again, prosecutors said the man should be released but the defense said he should fill out the questionnaire.

Another juror said she is pregnant and due in September, and that her sister’s boyfriend was in the theater that night. District Attorney George Brauchler said he didn’t object to releasing her, but Holmes’ lawyers asked that she fill out the questionnaire before being released.

None of the three jurors were released and were asked to complete their questionnaires.

The defense’s reluctance to release some jurors came a day after they reiterated that prospective jurors who say they don’t speak English should only be released if they speak virtually no English.

Jurors who speak some English should fill out the questionnaire as best they can before being released, they said.

Karen Steinhauser, a former prosecutor who now teaches at University of Denver Sturm College of Law, said the defense’s reluctance to dismiss jurors early — even in situations where the prosecution and judge want the juror released — could be a strategic move with an eye toward asking for a change of venue later. The defense will likely want a long list of jurors who say they can’t be impartial, Steinhauser said, so they want jurors to at least fill out the questionnaire so they have a record of those who say they have made their mind up about Holmes.

She said the defense might also want to see of the potential jurors would be “good” jurors for their case, keeping every avenue open to find at least one juror that would not convict Holmes.

Holmes’ defense team asked the court to move the trial out of Arapahoe County last year, arguing in a lengthy motion that the extensive and detailed media coverage in Arapahoe County means it will be impossible to find an unbiased jury.

Samour didn’t reject the defense request outright, but said he has “unwavering confidence” that the court can find a jury in Arapahoe County. The only way to know whether a jury could be seated in Arapahoe County was to try to seat a jury there, Samour said, so he deferred a decision on a change of venue until after the two sides have a chance to question individual jurors. That round of questioning is expected in late February or March.

Among the jurors released Tuesday was a person who said they knew Alex Sullivan, one of 12 people killed during the July 2012 shooting rampage at an Aurora movie theater. That juror said they also knew a guard in the jail who worked near Holmes’ cell.

Two other jurors — one who had a daughter in an adjacent theater at the Century Aurora 16 that night and another who helped fundraise for a victim — told the judge about their connections to the case but were not released.

The 70 jurors released Tuesday brings the total released over six days of jury selection to 454.
Samour again cautioned the two sides at the end of Tuesday’s session to be as reasonable as possible when it comes to releasing jurors during this initial phase. During the next phase, when lawyers interview individual prospective jurors, Samour said it is important that the remaining pool not be too large.

“In the end we can only speak to so many individuals,” he said.

Still, Samour isn’t releasing prospective jurors in most cases before they fill out the questionnaire, or before the two sides have a chance to discuss their answers to the questionnaire.

One juror told the court Tuesday morning they had been a kidnapping victim and said filling out the questionnaire was traumatic. Samour said the juror told the court they could not be impartial and they were crying and visibly shaken while filling out the questionnaire. Court staff let them go home without completing the form, but the juror wasn’t immediately released.

Another juror is mostly deaf and had a note from her doctor, but Samour and court staff asked her to try her best to fill out the questionnaire before letting her go.

Samour released one juror Tuesday who said his niece’s son was grazed by a bullet that night in the theater, but only after the prosecutor who specializes in witness issues reviewed the name of the prospective juror and their niece’s son.

Tuesday’s session started the way the previous sessions did, with the two sides meeting briefly to discuss miscellaneous issues before the prospective jurors came in.

“It’s starting to feel a little bit like Groundhog Day,” Samour said.

A record number of prospective jurors — 148 — reported for Tuesday’s morning session, a crowd that required court staff to grab some extra chairs at the start. About 1,300 jurors have reported to the courthouse over the first six days of jury duty.

Holmes is accused of killing 12 and wounding dozens more during a July 2012 attack at an Aurora movie theater. The trial is set for opening statements in May or June and is expected to hinge on whether Holmes was sane at the time of the killings. His defense has admitted that Holmes was the gunman, but said the former neuroscience student he was in the midst of a psychotic episode at the time.

Holmes appeared in court wearing a light-colored button-up shirt and dark pants Tuesday and sat quietly at the defense table throughout the hearings.