Jurors agree to move on to second phase of sentencing hearing for movie theater shooter James Holmes

Posted at 3:01 PM, Jul 23, 2015
and last updated 2015-07-24 10:07:54-04

The jurors in the Aurora movie theater shooting trial will move on to the second phase of the sentencing hearing, after agreeing that the prosecution proved at least one of the aggravating factors.

Prosecutors are seeking the death penalty for James Holmes, who was found guilty of murdering 12 people, injuring 70 others and assembling incendiary booby-traps inside his Aurora apartment.

He was convicted on all 165 counts and now the trial is in the sentencing and penalty phase.

In the first phase of sentencing, each side had a 40-minute time limit to present their arguments. The prosecution presented first and the defense declined to make an argument.

The gunman also declined to testify or make a statement of allocution.

After deliberations, the jury found the prosecution proved beyond a reasonable doubt that the crimes included at least one statutory aggravating factor. There are several such factors in Colorado, but these are the ones that were argued in this case:

  • The defendant committed the offense in an especially heinous, cruel, or depraved manner
  • In the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense
  • The defendant intentionally killed a child who has not yet attained twelve
  • The defendant committed first degree murder while lying in wait and in ambush
  • The defendant unlawfully and intentionally, knowingly, or with universal malice manifesting extreme indifference to the value of human life generally, killed two or more persons during the commission of the same criminal episode

The jurors did not agree that the prosecution proved the gunman intentionally killed a child under the age of 12, but agreed to all four aggravating factors applied to the adult victims. 

Prosecutor Richard Orman addressed the aggravating factor of killing 2 or more people with extreme indifference first - by listing the deceased victims one by one.

"The defendant killed and you have convicted him of killing Jonathan Blunk… A. J. Boik... Gordon Cowden... Jesse Childress... Jessica Ghawi... John Larimer... Matthew McQuinn... Micayla Medek... Alex Sullivan... Rebecca Wingo... Alex Teves... and Veronica Moser-Sullivan."

"He brought in a magazine that could hold 100 rifle rounds. And he used steel penetrating rifle rounds... to kill as many people as he could," Orman continued.

Orman then argued the gunman intentionally killed a child under 12 years old.

"Veronica Moser-Sullivan had four separate gunshot wounds in her little body. She was 6 years old. She was shot four times by the defendant. Four times," Orman repeated. "When you shoot someone four times, you do it with intent and you have the conscious objective to kill."

"And how do we know he intended to kill a child?" Orman asked? "Chichi Spruel saidthat theater was packed with kids... She'd never seen a theater with more kids in it."

"You've all got to remember Corbin Dates. And what did he tell ya?" Orman pressed on. "He told you there was a baby. A little baby in the same row that the defendant was in."

"[There were] lots of kids in that theater. The defendant had the intent to kill every single one of them," Orman stated.

Next Orman argued the gunman knowingly created a grave risk of death to everyone in the theater.

He then showed photos damage from gunshots in Theater 9.

"Does this show grave risk of death? I submit to you, yes," said Orman.

Orman then graphically described the severe injuries many surviving victims suffered.

"Her organs were literally pouring out of her body and had to be held in by hand," Orman said of Farrah Soudani.

"Everybody in Theater 9 that wasn't killed was in grave risk of being killed," he stated.

Orman moved on to argue the murders were committed in an especially heinous, cruel or depraved manner. He reminded the jury of the judge's additional explanation that the murders were committed in a "conscienceless or pitiless manner that was unnecessarily tortuous to the victims."

"Consider the circumstances of these murders... Where these murders committed in a humane fashion? Or were they unnecessarily tortuous?" Orman asked the jury.

"The defendant modified the environment to the theater by deploying tear gas," Orman explained. "This means... the victims would experience extreme discomfort from the tear gas - in addition to being shot. Is that unnecessarily tortuous? I submit to you it is."

"They were trapped in there and they couldn't easily protect themselves. And the tear gas made it hard for them to move," continued Orman. "They would have had to know - any human being would know - there was nothing they could do to protect themselves."

"At the moment of their deaths the victims would not only be in fear for their own lives but in fear for the lives of their friends and family and loved ones. And I submit to you that that is even worse than being in fear that you are going to die yourself. That your fiancee or your child or your mother is going to die there with you. Unnecessarily tortuous," Orman stated again.

"They died... surrounded by screaming and by pain and by anguish. That is how they died."

Orman then argued the gunman committed first degree murder while lying in wait and in ambush.

"Before the defendant came into that theater armed with three firearms, they were unaware of any danger. How could they be aware of any danger? They were watching a movie, in a movie theater. A place of enjoyment and safety. And they were helpless," said Orman.

"The defendant was in a place of concealment, lying in wait... to kill people who had no idea that anything was coming... that is ambush."

-- Phase two --

When the second phase of sentencing begins, jurors will be asked to hear mitigating factors presented by the defense. At this point, they're likely to hear from family and friends of the convicted shooter who could testify about his life. That will include a video tape of testimony from the gunman’s 5th grade teacher, Paul Karrer, which was pre-recorded Monday, due to scheduling conflicts.

The defense is also likely to present information about his mental illness.

Mitigating factors under Colorado law that could be included in this case are:

  • The defendant's capacity to appreciate wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution
  • The defendant was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution; or
  • The emotional state of the defendant at the time the crime was committed
  • The absence of any significant prior conviction
  • The extent of the defendant's cooperation with law enforcement officers or agencies and with the office of the prosecuting district attorney
  • The good faith, although mistaken, belief by the defendant that circumstances existed which constituted a moral justification for the defendant's conduct
  • The defendant is not a continuing threat to society
  • Any other evidence which in the court's opinion bears on the question of mitigation.

After hearing those presentations, the jury needs to deliberate again to decide if the mitigating factors outweigh the aggravating factors. If they do not, the case will move to the third phase.

In that third and final phase, the jury will be asked to judge the defendant's character against his crime. They need to decide if the prosecution has proven beyond a reasonable doubt if the death penalty is the appropriate penalty.

If at any point in the process the jury decides not to move to the next phase, the gunman would be sentenced to life imprisonment without the possibility of parole. Also, the vote must be unanimous to deliver a death sentence.

All of the 12 jurors and seven alternates will continue to be in court for the next phase.

7NEWS will continue our live streaming coverage as long as this process continues -- until a sentence is decided in court.

TIMELINE of the case: