FAIR WHETHER OR NOT: Huge jury begs question, is a fair trial here possible?

AURORA | In just over a week of jury selection, more than 1,300 prospective jurors in the Aurora theater shooting trial have streamed through the Arapahoe County Justice Center.

So far, about 400 have been released for various reasons, leaving close to 1,000 that could still land on the jury.

Still, even as jurors shuffle into the courthouse by the hundreds everyday, one question looms: Is there a pool of 24 unbiased jurors in the county where police say James Holmes killed 12 and wounded 70 more in one of the worst mass shootings in the nation’s history?

Already, Judge Carlos Samour, Jr. has released several jurors who said they have a connection to the case. One juror was released Jan. 27 because his niece’s son was in the theater and grazed by a bullet that night. Another released last week was a mental health provider who had a client in the theater.

And more with connections to the case will likely be released in the coming days. During just the afternoon session on Jan. 27, two more jurors — one who had a daughter in an adjacent theater at the Century Aurora 16 that night and another who helped raise money for a victim — told the judge about their connections to the case but were not released.

With a case that saw as much media attention as this one did, and with more than 80 named victims and roughly 1,500 people in the three theaters that night, experts say a huge chunk of the jury pool will have to be disqualified just because they have connections to the case.

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 here means it will be impossible to find an unbiased jury.

In their 37-page motion asking that the trial be moved, Holmes’ defense team said that while media coverage around the state has been intense, the case has had the most lasting and heaviest impacts on Aurora and Arapahoe County residents.

“They have participated directly in the response and recovery, been saddled with unprecedented economic damage, and have been impacted by great emotional and psychological consequences, all of which continue to this day and much of which will persist long into the future,” the motion said.

Samour didn’t reject the defense request outright, but said he has “unwavering confidence” that the court can find a jury in Arapahoe County.

But, Samour said, the only way to know whether a jury could be seated here was to try to seat a jury here. Samour deferred a decision on the defense motion for a change of venue until after the two sides have a chance to question individual jurors, which is expected to take place sometime this spring.

Philip K. Anthony, jury consultant and Chief Executive Officer of DecisionQuest, a firm that assists lawyers with jury selection, said it is virtually a foregone conclusion that the defense will renew their request for a change of venue.

“That’s just good common sense, that is the defense team doing their job in making a record,” he 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 who have yet to fill out their questionnaire — even in situations where the prosecution and judge want the juror released early — could be a strategic move with an eye toward asking for a change of venue later. The defense will likely want as long of a list as possible 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 jurors who say they have made their mind up about Holmes.

“They could be making their record in case they need to renew their motion for a change of venue,” she said.

But, Anthony said, courts around the country are reluctant to move trials. In a case like this though,  Anthony said he thinks a change of venue could be the right move.

Jurors face far more pressure in cases like this than they do in others — and the pressure comes from seemingly all sides, he said.

“They have to live in the community and they have this underlying fear that at some point it is going to become known that they were a juror on the case. If they were to find acquittal, they have to go back to their community and explain that to their community members,” he said.

If jurors convict Holmes and say he should be executed, Anthony said they will face similar criticism from people who oppose capital punishment.