Aurora theater shooting trial prosecutors seek changes to mental health cases

In the years since the Aurora theater shooting, commentators from across the political spectrum have tossed out policy prescriptions that they say could have prevented the attack.

Maybe stricter gun laws could have made it tougher for James Holmes to acquire the arsenal he used that night.

Others argued the opposite, that maybe more lax gun laws would have meant someone in the theater was also armed and could have stopped Holmes.

Still others pointed to the country’s mental health system and argued making it easier for doctors to commit Holmes to a hospital -— or at least barring the mentally ill from buying guns — could have stopped him from killing 12 and wounding 70 others that night in July 2012. 

But the prosecutors who tried Holmes and who have been immersed in the case for years aren’t confident anything could have been done to stop the attack.

“I think he was a criminal mastermind and I think he would have found ways around every single thing he needed to find ways around,” said Deputy District Attorney Lisa Teesch-Maguire. “I really don’t think there was anything that would have prevented him from his lifelong ambition.”

Deputy District Attorney Rich Orman said if someone has the time and resources — and if there are few people close to them who could discover their plans — there isn’t a way to prevent them.

“He was just working on this full time, and there’s just nothing in the world that’s gonna stop (him), short of blind luck,” he said.

Deputy District Attorney Karen Pearson — who, like Orman, prosecuted the case from the very start — said as a prosecutor she sees too much random violence, and it’s always hard to say what could have stopped a crime like this.

“You could spend a lot of time trying to guess if something could have changed it,” she said. “I don’t know if anything would have helped.”

“I think he was a criminal mastermind and I think he would have found ways around every single thing he needed to find ways around,” said Deputy District Attorney Lisa Teesch-Maguire. “I really don’t think there was anything that would have prevented him from his lifelong ambition.”

In the hours after the verdict came down earlier this month, District Attorney George Brauchler said he was disappointed Holmes didn’t receive a death sentence, but not disappointed in the process.

In an interview this week — 10 days after the verdict — that disappointment is still there for Brauchler and the other prosecutors who tried the case, but they say they remain confident they did everything possible to secure a death sentence.

One juror who spoke to the media after the verdict came down said almost all of the 12 deliberating jurors supported a death penalty. Two were on the fence after a day of deliberations, she said, and one other woman was adamant that a life sentence was appropriate because of Holmes’ mental illness. With the jury unable to reach a unanimous verdict, Holmes was sentenced to life in prison.

The prosecution and defense spent months whittling the jury pool down to 24, which included 12 jurors and 12 alternates at the start of the trial. During individual juror questioning, prosecutors asked each juror pointed questions about mental illness, and if they could sentence someone to death if that person was sane, but still mentally ill.

Brauchler said prosecutors graded all potential jurors on a typical scale: A was a good fit, F wasn’t. None of the 24 jurors scored a D or lower, and Brauchler said the juror who voted for life received a B or a C.

“She did not give any answers that raised any red flags,” he said.

Prosecutors have yet to speak to that lone hold-out. Rather than reaching out to the jury, prosecutors are letting the jurors reach out to them. Some have reached out, others haven’t. If that hold-out juror doesn’t reach out, Brauchler said prosecutors will, but he wants to be delicate about it.

“I just don’t want to be in the business of trying to convince that person they were wrong,” he said.

Jurors were told over and over during the trial that their ultimate decision should be based on their own moral judgment and nobody else’s. Brauchler said he respects that, but he wants to know what piece of evidence, or what moment, swayed that particular juror, in part so he has a better understanding for future trials.

While the prosecution team said they don’t think they could have done anything different to change the case’s outcome, there are some changes they would like to see made to cases involving the death penalty and questions of sanity.

Prosecutors have yet to speak to that lone hold-out. Rather than reaching out to the jury, prosecutors are letting the jurors reach out to them. Some have reached out, others haven’t. If that hold-out juror doesn’t reach out, Brauchler said prosecutors will, but he wants to be delicate about it.

In Holmes’ case, a court-appointed doctor didn’t examine him and make a sanity evaluation until a year after the shooting.

Maguire said those crucial exams need to happen much sooner, preferably within a month of the crime so doctors get a better idea of a defendant’s mental state at the time of the crime.

Brauchler said that while that could be tricky because a defendant doesn’t have to enter their plea until several months after being charged, the evaluation could be sealed until the defendant formally enters that plea, and it could be destroyed if they opt not to plead insanity.

And, prosecutors said, the exams should always be videotaped. In Holmes’ case, just one of the evaluations was videotaped. In the others, Brauchler said the jury had to rely on psychiatrists to tell them about the defendant’s demeanor, something they could see for themselves if the interviews were recorded.

The state’s death penalty process is also tougher to pursue than it needs to be, Brauchler said. Other jurisdictions ask jurors to decide whether mitigating factors outweigh the aggravating factors then make their decision on death. But Brauchler said Colorado has a third step where jurors who have already decided that the aggravating factors outweighed the mitigating factors — as they did in Holmes case —  the jury decides if there is anything else under the son that is a reason for life over death.

Still, Brauchler said, while the state’s death penalty system could be tweaked, he said he likes that Colorado rarely seeks capital punishment.

“It should be rare,” he said. “It’s a big deal when the state moves against a citizen to take their life.”