A Dark Night in Aurora

by Dr. William H. Reid

  For most people, most of the time, even severe mental disorders do not interrupt voluntary adherence to the law. I didn’t see an exception in this case. Although the chain of events that led to the shootings was no doubt affected by his psychiatric symptoms, there was little or no reasonable psychiatric evidence that Holmes’s symptoms kept him from being able to form the requisite culpable mental state (that is, knowing and appreciating legal, social, and moral aspects of his acts).

  Further, the totality of the record, examinations, and interviews conducted did not suggest that Holmes’s mental illness itself directly caused the shootings in any sense that interfered with the voluntariness of his behavior. The specific nature of Holmes’s disorder(s) may have been disputed, but to consider exculpation simply because his behavior was a product of his thinking is another matter entirely, and one that I opined against.

  I was asked to explore Holmes’s statements that he wished to keep the shootings and killings impersonal. “Impersonal” wasn’t quite the right term, I thought, and Holmes hadn’t really kept the killings impersonal in the way that he contended. He generally used “impersonal” to describe a lack of direct relationship with his victims, but there were many indications that his behavior during the shootings was to some extent personal, or at least individual. Some of what he described as impersonal seemed actually to have been indifferent, and indifference is considered a legally “aggravating factor” when Colorado juries are considering the death penalty.

  For example, Holmes carried out the shootings and killings at close range. Although he said he didn’t know the victims personally, listened to loud music through earbuds as he shot, and had trouble seeing through his gas mask in the theater, he sometimes picked out certain victims and tried to kill specific people before they could escape. One victim in a front row described Holmes walking up and shooting him at close range, within about five feet. However loud the iPod music, Holmes remembered hearing screams early in the shootings, then a fire alarm. He was able to see well enough to follow human targets and aim at them if he chose to do so. Before writing my report, I tested a similar rifle and close quarters sighting system while wearing a full-visor gas mask, admittedly not in a darkened theater; there was little problem with visibility.

  When I asked about his considering other, less personal ways to kill many people, such as bombing, Holmes dismissed the idea, rationalizing his choice of the relatively intimate, crowded theater, going through a bustling lobby, and sitting among the audience members he would later shoot. It is clear that his purpose was more victims, not less personal ones.

  One psychology expert invoked a concept of “warrior mentality” to explain things like Holmes’s firing huge amounts of ammunition in practice, selfies wearing his combat-like gear, and the completeness of his regalia. I concluded that the concept didn’t fit very well, and even if the idea of a warrior mentality were relevant to Holmes himself, the presence of such traits wouldn’t affect the question of his sanity.

  The court wanted further exploration of Holmes’s violent fantasies, their development, and their evolution. Everyone has violent fantasies. Very, very few people act on those fantasies in the way that Holmes did. His fantasies didn’t cause the shootings, though it’s reasonable to infer that some of them came from the same psychological sources as did his mission. It is tempting to imagine a sort of evolution of Holmes’s violent or homicidal thoughts from his childhood until 2012 and to use his memories and descriptions of fantasies as markers of that evolution, but such interpretation is highly speculative and depends on limited information from only one, potentially unreliable, source: Holmes himself.

  Finally, how the victims felt about dying was, Holmes said, irrelevant to his mission. He speculated that if he had been asked before the shootings about the victims’ feelings, he would have replied that “dying would probably matter a great deal to them.” He had planned to kill the people in the audience without regard to their rights, their feelings about dying, their wishes, their genders, their ages, or other individual characteristics.

  REID: “Did you think they wouldn’t mind being killed, shouldn’t mind being killed?”

  HOLMES: “I never considered it.”

  REID: “Didn’t consider whether they would mind or not?”

  HOLMES: “Right. I was focused on increasing my own value, not their needs.”

  REID: “Do you think that, do you speculate that they simply didn’t mind being shot?”

  HOLMES: “I never considered it from their point of view.”

  REID: “If I’d asked that question somehow on July 19, 2012, what would your answer have been?”

  HOLMES: “They probably will mind being shot.”

  The stage was set. The trial was approaching fast.

  ______________

  1 Think of an “acute” sore throat or stomach pain, something obvious, not subtle.

  2 He never actually blocked those doors.

  3 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).

  13. The Trial Begins

  Holmes was “floundering, … struggling with who he was and what was going to happen to him.”

  (From testimony by Dr. Jeffrey Metzner, the judge’s initial expert)

  On February 27, 2014, Judge Samour set the trial for mid-October of that year. The wheels of justice move slowly, however, and the Court approved a defense request to push the date back to December. Jury selection finally began January 20, 2015, after two and a half years of hearings on various pleas, settings, and even the constitutionality of the Colorado insanity defense statute.

  ____________

  The difficult process of finding jurors who could be objective about some of the most heinous criminal charges in American history led to some nine thousand people being summoned for the jury pool, the most ever in the United States. They came from all over Colorado. It took almost three months to choose twelve regular jurors and twelve alternates, more of the latter than usual because of the anticipated length and difficulty of the trial. Some parts of the process were routine, if time consuming.

  Most of the people in the huge pool had no direct connection to the case. Some, however, were from the neuroscience department where Holmes was a student, or were police officers who knew the first responders, or had friends who were in the theater during the shootings. Many opposed the death penalty. Jurors in potential death penalty cases must be “death qualified”—that is, not inalterably opposed to execution when it is warranted. In Colorado, they must also be willing to assess a penalty of life in prison without the possibility of parole if the evidence warrants it.

  Some juror candidates were dramatic, or simply odd. The Denver CBS affiliate reported that one woman who asked to be excused “fell to her knees, crying and pulling chunks of her hair out.” There was a man who put the death penalty into a context of “zombie apocalypse” and a woman who said she could actually “see” the truth but would refrain from using her clairvoyant skills during the trial. All of those, and several people who showed up intoxicated, were dismissed.

  Selection was a three-step process. Members of the initial juror pool filled out a lengthy questionnaire from which over a thousand were then chosen for individual questioning by the judge and the lawyers. From that group, more than fifty were told to return for further interviews.

  The questionnaire for prospective jurors was comprehensive. It first covered general background: forty questions on personal and family information, employment, legal and law enforcement experience, history of being a crime victim, television and Internet viewing habits, preferred news media, social media, even the kinds of bumper stickers they had on their vehicles.

  Then, after being given a written summary of the charges against Holmes, the possible verdicts, and some of the possible consequences of those verdicts, the prospective jurors were asked thirty-two questions about the case itself and the upcoming trial, many related to whet
her or not they could be objective about an insanity defense and whether or not they had already formed any opinion about Holmes vis-à-vis mental illness. There were questions about the effect of publicity on the candidates’ opinions and about whether or not they knew any of the victims, prospective witnesses, or court and legal personnel.

  A long trial is arduous for jurors. Candidates were asked about severe hardships that might keep them from being in court five days a week for several months, about whether or not they could tolerate viewing graphic crime photographs and video, and about health problems or medications that might decrease their stamina and concentration.

  Virtually all of the prospective jurors knew who Holmes was. Many, perhaps most, already had some level of opinion about what should happen to him. Having an opinion was not necessarily disqualifying if the person could reasonably be expected to set his or her opinion aside and be objective about the matters of fact and law that would be presented during the trial.

  After almost three months, twenty-four jurors, nineteen women and five men identified only by their juror numbers and brief descriptions, had been seated. The twelve who would eventually deliberate Holmes’s fate were known only to the judge and the attorneys (not even to themselves). There would be no difference between regular jurors and alternates during the trial; all would attend every minute, and all would follow the same rules. When deliberations finally began, the alternates would continue to be available in case any of the regular jurors had to be replaced but would not have any contact with them.

  The jurors were all Caucasian except for one Latina school clerk. The defense alleged racial bias in the prosecution’s choices, but Judge Samour researched the issue and ruled that the process was acceptable. According to the seated jurors’ own statements, two had connections to the 1999 Columbine High School killings; one was “best friends” with student killers Dylan Klebold and Eric Harris and had dated one of their victims. There was a lawyer, a physicist with explosives experience, at least one person who had been a mental hospital inpatient, a former victims’ advocate, and a woman who believed some people are evil and have no soul.

  Some of the jurors said they were against the death penalty or didn’t believe in the insanity defense, but they promised they could weigh the facts objectively and apply the law if either was adequately supported. A surprising number said they didn’t watch the news.

  Five of the twenty-four would not make it to the end of the trial.

  Courtroom 201 in the Arapahoe County Justice Center was renovated for the trial, with twenty-four juror seats, special security measures, and a media system to provide a “pool” broadcast. Although both the prosecution and the defense objected to any live broadcast of the trial, Judge Samour ruled that the Constitution required an opportunity for media presence and complete coverage was in the interest of fairness and transparency. He opted to allow one video feed for use by all media outlets rather than more disruptive traditional coverage by lots of local and network cameras.

  The video always showed the same view: the judge’s bench, witness stand, prosecution and defense tables, and exhibit area. Neither the jury nor the gallery, usually full of observers that included victims and their families, was ever shown. The video broadcast process was unobtrusive, never interfering with the trial, and Judge Samour could turn off the camera from the bench if necessary. Written materials, photos, and video in evidence were shown on wall monitors, one of which was behind the witness stand and could be seen in the pool broadcast; there was no other feed to the network trucks in the courthouse parking lot. Security was tight, with guards and a magnetometer just outside the courtroom to augment those at the courthouse entrance.

  The judge also barred the media from other parts of the courthouse. In previous trials, reporters and camera operators had been accustomed to setting up in a hallway, where they could photograph or briefly interview attorneys, witnesses, and even crime victims as they passed. This time, to minimize the possibility of victim or witness harassment or intimidation, they were restricted to a limited area outside the building.

  Part of the second floor of the courthouse was converted to a mental health center for victims and victims’ families. Counselors were present throughout the trial to help both those scheduled to testify and those who were there to observe. A service dog was there every day as well, getting lots of attention and giving lots of support. Much of my time during recesses or waiting to testify was spent in that suite, around people in various stages of the grief that was being rekindled by the trial. They knew not to interfere with my work, and I couldn’t sit with them because of my role in the case, but we were passing in the hall, nodding hello at the coffeemaker, being there.

  Robert and Arlene Holmes, victims in their own right, were in court every day. Their daughter, Chris, was present much of the time.

  Holmes was brought to court daily through a series of tunnels from the adjacent detention facility. He wore a dress shirt and slacks, not the familiar orange jail jumpsuit that might have prejudiced the jury, as he sat stoically, but often attentively, through the trial. He didn’t appear shackled, which might have biased jurors as well, but Judge Samour required some restraint because of the violent nature of the charges. The compromise was an unusual, perhaps unique, harness concealed under Holmes’s clothes and connected to a cable bolted to the floor. Neither the jury nor the public could see the restraint; I didn’t know it was there until after the trial.

  The trial in chief, in which guilt or lack of guilt by reason of insanity would be determined, began on April 27 with opening statements by the prosecution and the defense. The prosecution alleged that all of Holmes’s plans and actions had been criminal. The defense admitted—“stipulated”—all of his behaviors related to the shootings but alleged that he was schizophrenic and could not control his actions. Then the prosecution started its case.

  Trials of this magnitude move slowly; they are sometimes interesting, sometimes boring, occasionally exciting, and often interrupted by objections, legal issues that require attorney-judge conferences at the bench, lengthy judicial explanations or admonishments, and the time-consuming process of having the jury leave the courtroom several times a day while arguments take place about what they will be allowed to hear.

  Judge Samour made things fair inside the courtroom. Outside, however, trial watchers, almost everyone in Colorado and tens of thousands well beyond its borders, were anything but objective. Even the media, especially local news sites and television channels, sometimes seemed biased as they subtly supported prosecution points or played down defense ones. Perhaps the fierce competition for ears and eyeballs interfered with their objectivity. Be that as it may, the entire trial was covered every day on Denver television and the Internet, gavel-to-gavel, with no commercial interruption while court was in session.

  The prosecution began with five days of almost continuous survivor and first responder testimony, people who had been at the theater on the night of the shootings. For fifteen days after that, survivors’ testimony was peppered through that of investigators, law enforcement officers, and other fact witnesses.

  “Fact” witnesses are those who are allowed to report only what they personally saw or experienced, as contrasted with “expert” witnesses, who can offer professional opinions. Police officers, investigators, or computer technicians, for example, may offer expert testimony related to their professions if the court accepts their qualifications; other witnesses are limited to describing the facts as they observed them.

  After almost two hundred fact and expert witnesses had testified about scores of topics to establish the prosecution’s case against Holmes, District Attorney Brauchler called me as the first psychiatric expert. My work had been for the Court itself, the results available to both sides, but since my findings and opinions largely supported the prosecution the prosecution called me to testify. Brauchler himself would perform the direct examination—that is, questions asked by the side that calls the
witness.

  I offered various opinions, already described in earlier chapters, in response to Brauchler’s questions—generally that Holmes had the mental capacity to be responsible for his actions (which implied that he didn’t meet Colorado criteria for being legally insane)—and then testified about my review and interviews of various people to support those opinions. During my next six days on the witness stand, the jury watched my video-recorded interviews of Holmes, and Brauchler asked questions about them. Small segments of the video, about twenty minutes in all, were redacted—cut—from the video because Judge Samour deemed them unduly self-incriminating or they referred to material more relevant to the penalty phase of the trial, should that eventually take place.

  Among other things, Brauchler brought out the fact that my interviews had been video recorded, unlike those of the other psychiatric experts, and thus were completely open to scrutiny. Everything Holmes said, and everything I said, including nuance and context, was there for everyone to see and hear. Neither the court nor I had to rely on my memory or on written notes that would have been vulnerable to error or bias.

  When a witness (in this instance, an expert witness) testifies for one side in a trial, the other side can cross-examine that witness on the topics raised in the direct testimony. Then the first side may elicit “redirect” testimony, sometimes followed by “recross.” Direct testimony is usually straightforward, with questions from a lawyer who is friendly, in a sense, to the witness because his or her testimony is expected to be helpful to that lawyer’s side. Those questions have often been rehearsed to some extent.

  Cross-examination is much less predictable and usually much less pleasant. The lawyer for the opposing side tries to nullify the points made in the direct testimony. That can be done by challenging the testimony with contradicting information, by getting the witness to refute his or her own testimony, by obfuscating or diluting the testimony, or by impugning the witness in order to damage his or her credibility with the jury. If none of those is feasible and the witness has damaged the opposing lawyer’s case, that attorney may ask only a few questions to quickly end the witness’s influence on the jury.