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January 20, 2015

Should we be concerned about the economic or human costs of Colorado's efforts to get Aurora killer James Holmes on death row?

The question in the title of this post is my first reaction to this lengthy Denver Post piece discussing what to expect now that jury selection is about to begin in the Colorado's high-profile capital trial of Aurora theater shooter James Holmes.  The piece is headlined "Aurora theater shooting trial could strain limits of jury service," and here are some excerpts:

After 50 days of testimony and deliberations, the jurors who decided the fate of Oklahoma City bomber Timothy McVeigh emerged haunted. "Have you ever seen 12 people cry?" one juror told reporters about deliberations for the 1997 verdict, handed down in a federal courtroom in Denver.  "I'm 24," another said, "But I don't feel 24 anymore."

Pummeled with horrific accounts of the attack, freighted with finding justice amid tragedy, the jurors had been pushed to near shattering. "I personally felt subject to the same sort of trauma that some of the victims and survivors went through," another said.

Now, imagine if that trial had lasted twice — even three times — as long.  The trial of Aurora movie theater gunman James Holmes, which starts Tuesday with jury selection, is expected to be so lengthy and arduous that it could strain the very process of justice it seeks to uphold.

Nine thousand potential jurors — one of the largest pools in American history — have been summoned for the case.  If picked, jurors will be ordered to serve for as long as five straight months, longer than any state criminal trial in memory in Colorado. They will weigh whether Holmes was sane in July 2012, when he killed 12 people inside the Century Aurora 16 movie theater and tried to kill 70 others, and, if they find he was, they will decide whether he should be executed.

For their service, they will be guaranteed a wage of only $50 a day, a rate that could plunge their income to near the federal poverty level.  Even harder, during what will likely be the most stressful time of their lives, they will be forbidden from talking to anyone about the experience — not their family or fellow jurors or counselors.  Until deliberations begin sometime late this year, the jurors will bear that stress in silence, despite a growing body of research that shows jury service on traumatic cases can lead to mental and physical illness and impact jurors' decision-making....

Since the 1930s, perpetrators of public mass shootings nationwide are more likely to die at the scene than to be captured, according to research by Minnesota Department of Corrections official Grant Duwe.  Of the 45 percent who were arrested, only a fraction ever faced a jury.  And even fewer of those were charged with killing in an attack as devastating to the community as Holmes is for the Aurora theater shooting.

William Bowers, a researcher for the Capital Jury Project at the State University of New York in Albany, likens the theater shooting trial to that currently taking place for one of the suspected Boston Marathon bombers.  "There's nothing really comparable to these cases in modern experience, in terms of duration of the trial and effect on the jury," Bowers said....

But, at its most extreme limits, jury service can become less of a duty and more of an ordeal, legal experts say.  Studies have shown that jurors in traumatic trials can suffer from insomnia, anxiety, anger and depression.  One study documented cases of jurors who broke out in hives, developed ulcers or increased their alcohol consumption while serving at trials. And after the trial is over, some jurors have said they experienced flashbacks....

In recognition of the strains of jury service, courts across the country increasingly offer counseling to jurors. Jon Sarche, a spokesman for the Colorado Judicial Branch, said counseling will be made available to jurors in the theater shooting case once the trial is over.  But — because judges routinely order jurors not to talk about the case with anyone, to protect the trial's integrity — counseling is almost never available to help jurors manage stress during the case.

While this piece effectively highlights some economic and human costs to be borne the jurors in this case, the question in the title of this post also suggests thinking about the economic and human costs sure to burden the lawyers and the court system throughout this case.  And, as the question in the title of this post is meant to highlight, these costs are all endured in service now only to having Holmes sentenced to death; inevitable appeals and other factors will likely mean Holmes is unlikely ever actually to be executed by Colorado for his crimes.

I suspect these kinds of costs and uncertainties explain (and clearly justify?) why the feds were willing to cut LWOP plea deals for other mentally-challenged mass killers like Ted Kaczynski (the Unibomber) and Jared Lee Loughner (the Tucson shooter).  But Colorado prosecutors in this case appear quite committed to enduring all these costs in service to trying to get James Holmes sentenced to death. 

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January 20, 2015 at 10:11 AM | Permalink


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It is amazing that they won't plead this to LWOP considering the clear evidence of some significant level of mental illness. And we're not talking sociopathy, where the illness is basically defined as a desire to commit malevolent acts in an otherwise rational person, either; we're talking out-of-touch-with-reality, think-I'm-Batman stuff. Whether or not that rises to the legal level for an insanity plea or the Eighth Amendment level barring execution, it certainly seems like it should be a strong factor guiding the prosecutor's discretion -- especially considering what I understand are mixed feelings among the victims, as well as the above-noted practical concerns that probably limit the chances of ever actually carrying out an execution to the 50/50 range at best.

The jurors are just more collateral damage. I mean, can you even pick a fair jury under circumstances like these when 99.9% of sane, rational people will be scratching and clawing and marshaling every (hopefully truthful) fact about themselves that might disqualify them from service?

Posted by: anon | Jan 20, 2015 11:52:57 AM

The full airing out nature of a public trial has benefits as does (for those who believe it is justified) a death sentence. Just how much is a matter of debate, a cost/benefit calculus. Those less supportive of the death penalty, if accepting it in special cases (as would apply to the author of the piece), might be more concerned about costs than some others here who are more supportive. As anon notes, it is more questionable in this case.

Posted by: Joe | Jan 20, 2015 12:22:15 PM

The core problem is the 9,000 person venire pool and the 150 days to try assumption. Both indicate a process completely out of control. With a reasonable voir dire process (i.e. the judge keeping the attorneys within the bounds of proper voir dire and not letting it wander off on tangents) and attorneys who actually understood that done properly "less is more," there is no good reason why a pool of 1,000 venirepersons and thirty days total for jury selection, guilty phase, and penalty phase should not be adequate. In most cases, a day-long direct followed by a day-long cross is a waste of two days of court time as the jury will remember at most fifty minutes of the sixteen hours and using five witnesses to prove the same fact (whether that Holmes armed himself to the teeth and then shot as many as he could or that Holmes is a very sick individual) is using three witnesses too many.

This case is likely to go down next to the OJ trial as a textbook example of how not to try a case.

Posted by: tmm | Jan 20, 2015 2:26:42 PM

"Both indicate a process completely out of control."

Correct. The problem is that there is no unanimity on why it is out of control. One side argues that the underlying problem is American's desire to kill. The other sides argues that the underlying problem is people's obsession with actual innocence. Since neither side has been able to command a majority for its views, the result is dysfunction.

Posted by: Daniel | Jan 20, 2015 3:08:33 PM

think if I was on that jury I would slip a note to the da that if this case was dragged out for months because he/she was too fucking stupid to take a damn LWOP deal. He/she could look forward to a NOT GUILTY verdict across the damn board!

Posted by: rodsmith | Jan 20, 2015 10:49:04 PM

A spectacle of lawyer rent seeking.

A spectacle of juror enslavement and oppression.

A Twilight Zone worthy spectacle of irony and upside down logic calling paranoid schizphrenia a mitigating factor, when they kill 2000 people a year, many of them strangers.

The judge is the producer and is fully responsible for this spectacular theatrical production.

Posted by: Supremacy Claus | Jan 21, 2015 12:44:36 AM

One other point that bears noting: this absurdly large venire and laborious voir dire would not be necessary if the judge had properly transferred the case to a more neutral venue. I mean, if this case doesn't present grounds for change of venue, what case would???

Maybe this is part of the OJ analogy tmm suggests above -- like Judge Ito maybe this judge is too eager to enjoy his moment in the sun. (Although I don't actually know what happens with a change of venue in Colorado -- i.e., whether the case goes to a judge of the new county, or whether the Arapahoe judge would follow the case and preside in the new county...)

Posted by: anon | Jan 21, 2015 11:51:46 AM

Anon, my OJ analogy is more about a case being over-tried.

It's very, very hard to properly disqualify a venireperson on publicity. As long as the venireperson "credibly" says that they can judge the case solely on the evidence presented in the courtroom and ignore what they might have seen two years ago on the news, the venireperson is not properly subject to removal for cause (see Skinner v. United States).

If the judge correctly applies the law, there is no way that you need more than 1,000 venirepersons. (538 has just done an article on the size of the jury pool in other notorious cases, and almost all involved a pool of less than 500.)

Likewise, the length of cases like OJ (and maybe this one) has very little to do with the actual evidence or the seriousness of the case and a lot to do with attorneys who like to beat a dead horse. Extended appeals have a lot to do with the intractability of both sides on capital punishment (but a good chunk can be laid on procedural issues and judges not making decisions), but extended trials are about trial mismanagement by the attorneys and the judge.

Posted by: tmm | Jan 21, 2015 3:07:06 PM

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