- Associated Press
Wednesday, July 22, 2015

CENTENNIAL, Colo. (AP) — Jurors quickly dismissed the claim of James Holmes that he was legally insane when he killed 12 people and injured 70 others in a Colorado theater. Now they’ll have to consider the extent of his mental illness again as they decide whether he should pay with his life.

In this penalty phase that began Wednesday, the personal values of each juror become paramount, as they consider whether the lifelong suffering Holmes caused by opening fire on the audience in a crowded Batman movie premiere outweighs the extent of his mental problems.

Sentencing is expected to last a month, and could be even more heart-wrenching and polarizing than the 11-week trial that resulted in convictions on murder, attempted murder and other crimes for his July 20, 2012, attack.

PHOTOS: Jurors to weigh whether Colorado theater shooter should die

The day got off to a rocky start when District Judge Carlos A. Samour Jr. scolded both sides about a dispute over the prosecution’s proposed arguments. Before the jury was brought in, defense lawyers objected to a slide show the prosecution planned to use and complained they had little advance notice about it.

“You can’t be doing this,” Samour told the attorneys. “The jury is waiting. This is unfair to the jury.”

Samour called a brief recess to resolve the dispute before calling in the panel.

The jurors have the final say on Holmes’ sentence — but they also have a major influence how the proceedings unfold. After each phase of the process, they meet to decide whether they’ve heard enough to make a decision.

Prosecutors were expected to start by outlining aggravating factors that support the death penalty, such as Holmes’ murder of a child younger than 12, the fact that he ambushed defenseless moviegoers, and the outsized number of victims he targeted. Jurors could theoretically end the trial right then if they decide that aggravating factors aren’t proven - an exceedingly unlikely outcome in this case.

Defense lawyers would then take over, trying to show that mitigating factors make it wrong to execute him. They’ll cite defense experts who diagnosed Holmes with schizophrenia and other disorders, and could call his parents, neighbors, a college roommate and officials from charities where Holmes volunteered to testify.

Already, a fifth-grade teacher who gave videotaped testimony early because he was unavailable during sentencing repeatedly referred to Holmes as “Jimmy” and described him as a bright student with a big smile.

Jurors would then deliberate for a second time, to decide whether, beyond a reasonable doubt, the mitigating factors so outweigh the aggravating factors that Holmes deserves life without parole rather than execution. If so, the trial ends there, without the death penalty. But that, too, is unlikely in this case.

What’s most likely is that the sentencing will enter a third phase, in which victims and their relatives will describe the impacts of Holmes’ crimes. Prosecutors could then offer more heartbreaking accounts, ranging from people Holmes maimed to the father of the youngest to die, a 6-year-old girl.

Holmes also will have opportunities to testify during each phase, but he said Tuesday that he did not want to, at least during the first phase.

The panel of nine women and three men will have fewer instructions to guide them and will instead use their own personal and moral values in sentencing.

“It is going to be intense,” said Denver defense attorney Iris Eytan, who represented Holmes initially but is no longer involved in the case. Holmes’ lawyers “will call anybody who James Holmes has had interaction with that can say he has a serious mental illness.”

Their work will be challenging because, by most accounts so far, Holmes has not had a difficult life, Eytan said. He was raised by loving, middle class parents in California, graduated with honors from the University of California, Riverside, and was accepted into a prestigious doctoral neuroscience program at the University of Colorado.

“But what he does have is, his lawyers can show how he has been fine his whole life, how he has contributed to society his whole life and how mental illness broke him in such a severe way,” Eytan said.

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