AURORA | Prosecutors say a request by James Holmes’ lawyers to move the accused theater shooter’s trial out of Arapahoe County is baseless, insisting that the effect of media coverage was overstated by the defense, according to counter-motions unsealed yesterday.
In a 75-page motion filed Monday but kept sealed until Tuesday, prosecutors said the defense has not proved that Holmes would not be able to get a fair trial or untainted jury in the county where the crimes occurred.
In a counter move, prosecutors said the defense itself tried to influence a future jury by making public plea deal requests.
Prosecutors said Holmes’ lawyers might have thought that making public the offer of a life sentence deal to avoid a death sentence could help them eventually find a juror who would refuse to impose the death penalty knowing Holmes was willing to plead guilty. Under Colorado law, a single juror is enough to block execution.
Doug Wilson, who heads the state public defenders’ office, which is representing Holmes, did not return a phone message. Lawyers on both sides routinely decline comment because of a gag order.
Holmes pleaded not guilty by reason of insanity to charges of killing 12 people and injuring 70 others who were watching a Batman movie in the Denver suburb of Aurora in July 2012. He faces 166 counts, including murder and attempted murder.
Prosecutors are seeking the death penalty. In a March 2013 filing, defense attorneys said Holmes would plead guilty if he could avoid execution, but prosecutors rejected the offer.
The allegations against defense lawyers were part of the prosecution response to a defense motion to move Holmes’ trial out of Arapahoe County, where the massacre took place.
Prosecutors accused the defense of deliberately publicizing the plea offer and then complaining that it was pre-trial publicity.
“The defendant should not be allowed to improperly include irrelevant information in a (publicly) available document and then complain that the information has been made available to the public,” prosecutors wrote.
Prosecutors also said it is too early to consider a change of venue because jury selection is not yet underway, so it’s not clear whether news coverage of the crime and the aftermath has prejudiced potential jurors.
Jury selection is scheduled to start in October.
Holmes’ attorneys asked for a change of venue three weeks, saying potential jurors have been exposed to prejudicial news coverage and carry emotional scars from the massacre.
Prosecutors also said it wouldn’t be fair to the victims if the trial was moved, forcing them to travel farther away from home to witness the trial.
“The defendant chose the venue in this case when he committed his crimes,” prosecutors wrote. “The victims are afforded rights to justice, due process, fairness, respect and dignity by mandate of Colorado law.”
The defense previously argued that intense media coverage of the July 20 attack and subsequent court hearings made it impossible for Holmes to get a fair trial in Arapahoe County. They also argued that because of the far-reaching effects of the crime — from local hospitals who cared for the wounded to local schools that dealt with the fallout — too many people in Arapahoe County have been touched by the case.
But prosecutors said those concerns are overblown, and that there isn’t a precedent for moving a trial like this one.
The prosecution also said there are studies that prove juries aren’t swayed by extensive media coverage of high-profile cases. Defense attorneys argued the opposite, saying that local coverage has sown expectations about the trial defense attorneys can’t overcome.
Judge Carlos A. Samour, Jr. has not yet ruled on the defense’s request for a change of venue.
Holmes is accused of killing 12 and wounding dozens more during a July 2012 shooting rampage at an Aurora theater. He has pleaded not guilty by reason of insanity and prosecutors are seeking the death penalty.
He is scheduled to go on trial this fall, but the trial could be delayed further as the defense appeals to the Colorado Supreme Court a ruling by Samour ordering Holmes to undergo a second psychiatric evaluation.