Cameras in the Aurora theater shooting trial courtroom ignites debate over access

AURORA | In the more than two years since police say he opened fire on an Aurora theater, killing 12 and wounding dozens more, James Holmes has appeared in an Arapahoe County courtroom more than 20 times.

At just two of those hearings — his first appearance a few days after the July 20, 2012, attack, and his arraignment in early 2013 — were cameras allowed in the courtroom.

That could change when Holmes’ trial starts late this year.

Several local television stations and newspapers have asked that a video camera and a still camera be allowed in the courtroom. The prosecution, Holmes’ defense team and several victims have come out strongly against the request.

During a hearing this week, Judge Carlos Samour, Jr. said the question of whether to allow cameras — and balancing the need for the public to know what is going on in the courtroom against Holmes’ right to a fair trial and the rights of the victims and witnesses — is a vexing task.

“There should be as much access as possible, but there have to be limits,” he said. Samour said he will likely make a decision on whether to allow cameras in the courtroom by the end of September. 

Experts say Colorado Supreme Court rules give judges in Samour’s position a lot of options when it comes to cameras in the courtroom.

Karen Steinhauser, a law professor at University of Denver Sturm College of Law, said the question before Samour isn’t as simple as allowing cameras or not allowing them. Instead, the judge could allow cameras, but restrict what the cameraman can record, possibly barring them from showing victims and witnesses. Jurors’ faces are never shown, she said.

“The court could still make it as restrictive as they want,” she said.

Steinhauser, a former prosecutor in Denver, said she tried a case in the 1990s that was filmed by Court TV. The cameras were so small and the lawyers so focused and busy with the case, she said she barely noticed she was being filmed.

“You don’t think about the cameras at all,” she said.

Diego Hunt, the lawyer for the TV and radio stations seeking to film the trial, said his clients would be willing to abide by any restrictions the judge puts in place. And, he noted, it wouldn’t make sense for any of the journalists involved to violate the judge’s rules because it would mean the end of the expanded coverage.

“They also understand the discretionary nature of expanded media coverage,” he said.

The trial will see intense media coverage with minute-by-minute updates, Hunt said. Even if the judge denies the request for cameras in the courtroom, cameras will be in the hallways and parking lots, and dozens of reporters will be constantly relaying information about witnesses, victims and testimony to the public, he said.

That constant coverage makes the concerns raised by the prosecution and defense — particularly that cameras in the courtroom will mean enhanced scrutiny of anyone who testifies — largely moot, he said.

“The risk the parties allege is a risk that’s going to exist irrespective of expanded media coverage,” he said.

Judge Samour seemed to agree with that argument.

“There is going to be a great deal of publicity regardless of whether I allow (expanded media coverage),” he said.

Jurors will be ordered not to view media coverage of the trial and Samour said the around-the-clock coverage will already be difficult to avoid. Having cameras in the courtroom won’t increase what will already be a substantial risk, he said.

And as for attention and scrutiny placed on victims and witnesses who testify, Samour said those victims and witnesses should expect lots of it considering the high-profile nature of the case.

“That is sort of what folks should be prepared for,” he said.

Samour said he has taken pride in how solemn the courtroom precedings have been so far, and he said any contention that the case has or will be a circus is completely inaccurate.

But, Samour said, the goings on outside the courthouse are largely unconnected to the question of cameras inside the courtroom.

“What happens out there is going to happen out there whether I allow expanded media coverage or not,” he said.

Samour also said that even cases where cameras are barred from the courtroom can descend into a circus-like atmosphere. He pointed specifically to the Michael Jackson child molestation trial in 2005, which didn’t have cameras in the courtroom but regularly had a crowded and wild scene outside.

But prosecutors and the defense said there is already plenty of access for the media in this case.

“The media will get all the access to this trial to which it is constitutionally entitled,” said Kristen Nelson, one of Holmes’ public defenders.

Because of the nature and size of the case — which is scheduled to last close to eight months and see more than 500 prosecution witnesses alone — Nelson said the case is “particularly ill suited” to expanded media coverage.

“It’s only going to make things worse,” she said.

And while Colorado hasn’t had any issues involving cameras in the courtroom, other states have, prosecutors said. In the high-profile trial of Jodi Arias last year — who was accused of murdering her boyfriend in a Phoenix suburb — prosecutors said a television camera caught video of a gruesome autopsy photo of the victim and broadcast it.

Deputy District Attorney Lisa Teesch-Maguire, who is leading the prosecution’s charge against expanded media coverage, said that in that same trial, an expert the defense planned to call declined to testify because they didn’t want to be on camera.

Teesch-Maguire said prosecutors are especially concerned about the effect cameras could have on victims. Already, they are talking about using hats with veils and blankets to cover victims and witnesses as they walk passed cameras outside the courtroom, she said.

She said prosecutors looked at several recent cases and found that in cases where cameras were allowed in the courtroom, a simple Internet search turned up several pictures of the victims and witnesses. But in other cases where cameras were barred from the courtroom, including that of Boston mobster Whitey Bulger, pictures of victims and witnesses were harder to find.

Those questions are especially important in this case, she said, because victims and their families have already been harassed by conspiracy theorists, including one case that resulted in an indictment.

And, both prosecutors and the defense noted, a death penalty case in Colorado has never been televised.

Still, Steve Zansberg, the lawyer representing Colorado newspapers, said the state is moving toward more recording of court cases, not less. The state court of appeals and the Colorado Supreme Court both now release audio recordings of their oral arguments, he said.

“It’s a pretty good indication of where our appellate courts stand,” he said.