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July 17, 2015

Previewing the penalty phase after James Holmes found guilty on all charges

This article, headlined "After the guilty verdict: What happens next in theater shooting case to decide James Holmes' fate?," provides a preview of what will define the penalty phase for the Colorado mass shooter after his conviction on multiple murder counts on Thursday. Here are the basics:

Now that the gunman has been found guilty on all 165 counts, the court is preparing to move to the part of the trial where a sentence will be determined. Prosecutors are seeking the death penalty for James Holmes, who on Thursday was found guilty of murdering 12 people, injuring 70 others and assembling incendiary booby-traps inside his Aurora apartment....

In the first portion of the penalty process, the prosecution must prove to the jury 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 might apply to 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 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

Based on the defense team's statements in court Thursday evening, that phase of the case is only expected to last a few hours but the jury does have to deliberate and agree to move on.

If they do move to the next phase, 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. They are 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, 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.

July 17, 2015 at 12:51 AM | Permalink


Not an easy task •

Posted by: Docile Jim Brady in Oregon | Jul 17, 2015 12:54:46 AM

Docile Jim Brady,

Considering that I believe execution to be the warranted outcome for crimes as relatively minor as the theft of a couple hundred dollars I don't think this one is difficult at all. I agree with SC regarding mental elements, they are not mitigation but instead further reason to cull.

Posted by: Soronel Haetir | Jul 17, 2015 3:17:44 AM

"I believe execution to be the warranted outcome for crimes as relatively minor as the theft of a couple hundred dollars"

Seriously? Many people in 1750 found that a bit much.

Further reason to cull? Okay. Well, as with not executing for a few hundred dollars, normal legal principles would see it as mitigation. So, there's that.

Posted by: Joe | Jul 17, 2015 9:56:28 AM


As I have said before I would only be troubled by execution when talking about thefts in the low tens of dollars (say $25 or less). And even then multiple offenses would stack. I do not particularly see execution as punishment but instead simply as getting rid of those who will not (or can not) conform their behavior to lawful norms.

Posted by: Soronel Haetir | Jul 17, 2015 1:52:50 PM

You medieval methods of crime control are duly noted.

They were seen as cruel and unusual by many in the 18th Century, but duly noted.

Posted by: Joe | Jul 17, 2015 4:23:31 PM

There is no point in entering into discussion with someone who advocates medieval justice. That's just not serious debate.

The main question here, it seems to me, for those who consider capital punishment appropriate for heinous crimes, is whether capital punishment should ever be applied to a person who is schizophrenic. Such persons are not necessarily violent, so that is not enough to explain the crime. Is it enough, in itself, to mitigate a heinous crime?

Posted by: Gary | Jul 18, 2015 3:59:15 PM

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