Theater shooting trial attorneys argue about upcoming, emotional testimony from Ashley Moser

Posted at 9:05 PM, Jun 17, 2015
and last updated 2015-06-18 13:15:34-04

After thinking about the issue overnight, Judge Carlos Samour has issued his decision limiting and guiding the upcoming testimony of Ashley Moser. 

Samour issued 17 rulings Thursday morning, after considering overnight a litany of objections entered by public defender Tamara Brady. In some cases, Samour's rulings grouped Brady's individual objections together. 

Importantly, Samour decided that Moser can be asked about why they attended the movie, the extent of her injury and how she found out about Veronica's death and the loss of her unborn child. He will also allow the prosecution to show a photo of Veronica, but only briefly and exclusively to allow Moser to confirm she was her daughter. 

The judge decided that seven of the subjects should be off-limits during her testimony. Those are: 

  1. What she said to her 6-year-old daughter Veronica about getting her own seat
  2. What she was asked about whether her daughter was breathing
  3. What she heard medical personnel say in the hospital about wanting to do a CT Scan because she was pregnant
  4. What Ashley's mother originally told her about her daughter
  5. What things she needed to re-learn as a result of her injury
  6. How often she had to attend physical therapy
  7. Questions about Veronica's funeral 

District Attorney George Brauchler told the court he understood these rulings and would inform Moser about them before she testifies -- implying that her testimony is going to occur on Friday, during the last scheduled day of the prosecution's case. 

-- Original story: June 17 --

With just about two days remaining in the prosecution’s case, the defense in the Aurora movie theater shooting trial is concerned about the upcoming, emotional testimony of Ashley Moser. 

Moser was severely wounded in the July 20, 2012 mass shooting perpetrated by James Holmes, who has pleaded not guilty by reason of insanity. As a result of her injury, Moser lost her unborn child.

Her 6-year-old daughter, Veronica Moser-Sullivan, was also killed in the attack. Jurors have heard during the trial that the little girl was shot four times and was most likely dead before she was transported to the hospital.

Holmes' public defender Tamara Brady stepped up to the podium after testimony concluded for the night on Wednesday and offered to District Court Judge Carlos Samour a long list of objections to things Moser could be expected to say. Those objections centered on the assertion that the anticipated statements would be irrelevant, cumulative and/or hearsay.

Brady’s objections included: "At the hospital, Ashley Moser asking her mother about the status of Veronica and the mother telling Ashley that, ‘They were taking care of Veronica,’ and Ashley finally (finding) out on Sunday that Veronica had died."

Also, "Ashley being told at the hospital that she’d lost her unborn baby."

During his opportunity for a rebuttal, District Attorney George Brauchler addressed each objection point-by-point. He argued adamantly that most of the topics should be admissible, but agreed that some should not be admitted under the hearsay rule - including the lie Moser was told about her daughter being alive during those first days in the hospital.

"I think that is likely hearsay," Brauchler said about what Moser’s mother had told her. However, he disagreed with the other half of Brady's objection.

"I think that the issue, though, of finding out on Sunday, being told that her daughter died, judge, I do think that’s relevant. She finds out at some point that her daughter is dead," Brauchler said.

Brauchler also argued to allow the statements about how Moser lost her unborn child. 

"The fact that she lost her unborn baby. This is no different, your honor, than being told your bone was broken or the bullet perforated your liver. These people who’ve suffered these injuries don’t know it because they’ve seen it, they know it because they’ve been told it by doctors and they’ve lived with the consequences," he said, reminding the court that Moser had also had an ultrasound in the hours prior to the shooting. 

Brady had also argued against presenting a photo of Veronica Moser-Sullivan during Ashley Moser’s testimony. Brady believes it would cause an extremely emotional moment in court that might prejudice the jury. 

"What is the relevance of that? I think the point of that is so Ashley would start crying, as would any mother. It is to start crying to evoke sympathy from the jury," Brady told the court. 

"It is inexplicable to me that we could go through the testimony of this mother and not show her a picture of her daughter and not only have her identify that daughter, but at some point discuss with her the death of her daughter and whether she’s seen her again," Brauchler argued.

Judge Samour concluded the day without a decision on these objections, but will have to rule on each of them before Moser takes the stand. Moser's testimony is expected either Thursday or Friday. The prosecution said their case will be wrapped by Friday.