A Dark Night in Aurora

by Dr. William H. Reid

  The “evidence” cited by those who espoused the sertraline theory was very thin. They admitted that sertraline and its medicinal kin are good drugs that serve an important clinical purpose. Somehow, they surmised, Holmes was literally one case in millions, and each piece fell exactly into place to create a perfect storm scenario of “the medicine made me do it.”

  While there is a tiny group of reported cases of people who appear to have rapidly changed and become very violent after taking sertraline, they number in the single digits compared with the millions who have taken the drug without incident over the past quarter century. It is reasonable to examine the possibilities and search for data, but it makes no sense to conclude that sertraline is the culprit, or even a significant cause of the shootings, based on the information available in the Holmes case.

  A couple of psychiatrists have said, for example in a BBC Panorama television special on the Holmes case, that sertraline’s adverse effects can, in rare instances, persist for up to two months and thus could have influenced the shootings. That having been considered, when I spoke with Holmes some two years later, he said that he still held his human capital belief and that people should still be “worried about him,” casting even further doubt on a sertraline defense.

  Was some sertraline link conceivable? Anything is possible, and it’s an idea tailor-made for people who oppose all psychiatric medications—there are lots of those folks around—and conspiracy theorists who allege that the government or some nefarious cabal framed Holmes in the first place. But the evidence wasn’t convincing, and the defense decided not to pursue it at the trial.

  After the defense rested its case on July 10, the district attorney was entitled to call rebuttal witnesses. The prosecution had hired and prepared several psychiatrists to counter the defense case and its possible extra experts. Dr. Resnick, who had reviewed all of the case records and materials, was ready to testify. Two other prosecution experts, one (Dr. Douglas Jacobs) well qualified to rebut any attempt to implicate sertraline, were prepared as well. But when the defense chose not to pursue the sertraline theory and didn’t call additional experts, Brauchler decided that launching a lengthy rebuttal was unnecessary and might do more harm than good to the State’s case. The prosecution had made its points, and the jurors were tired. There was no need.

  Closing arguments began on July 14, 2015, the forty-ninth day of the trial. After a morning of legal arguments and objections, the judge warned those in the gallery, which included many victims and victims’ family members, about emotional outbursts and brought in the jury. Each side was allowed two hours.

  The prosecution went first. DA Brauchler spoke for ninety minutes with soft-voiced passion about the crimes and the evidence, also arguing that defense experts had failed to do adequate forensic evaluations, much less support the case for insanity. A model of the auditorium where the shootings took place was prominent while Brauchler was talking.

  The defense had the auditorium model covered before the jury returned for Mr. King’s closing argument. “Facts do not cease to exist because someone wants to ignore them,” he began. He asked the jury to ignore the prosecution’s allegation that there was no mental illness and listen to the facts: “Dr. Reid told you” about his mental illness. Even the doctors that the prosecution used “say that he’s psychotic.”

  “Where’s the logic in the things he did, the mission, what he told his psychiatrist?” King continued. “It’s psychotic. You can’t attribute that to logic,” he said. “It defies logic. That’s the psychotic process. The district attorney wants you to defy logic. Mr. Holmes had lost touch with reality. He was consumed with a mental illness. He could not control his thoughts, his actions, his perceptions.” King pleaded with the jury to “accept the mental illness …, [that] Mr. Holmes was in the throes of a psychotic episode when this took place…. He’s not guilty by reason of insanity.”

  The prosecution was allowed a short rebuttal. Then the judge revealed which twelve jurors had been chosen, before the trial started, to deliberate. The other seven, who remained after five had been dismissed during the trial, would be isolated and ready to serve if needed.

  The judge had already read deliberation instructions to the jurors, each of whom had his or her own copy and verdict forms. The directions weren’t simple, and they weren’t short. There were sixty-two pages in all, with thirty specific instructions, admonishments about outside communication, and deliberation details for some 166 criminal counts, each with multiple elements and each including the element of sanity or insanity. If the prosecution had not proved sanity beyond a reasonable doubt—all the terms carefully defined under Colorado law—then the other elements would be irrelevant.

  The charges included twelve counts of murder with deliberation (“first degree”) and twelve counts of first-degree murder “with extreme indifference,” along with lesser included offenses such as second-degree murder and manslaughter, and over a hundred counts of attempted murder. The number of victims and the number of possible verdicts for each charge made it a dizzying document. The verdict forms, which would be completed by the foreperson on behalf of the entire jury for each charge, were complex, as well.

  What did the words mean to that jury? In Colorado, “reasonable doubt” means a doubt based upon reason and common sense that arises from a fair and rational consideration of all the evidence, or lack of evidence. It is not vague or speculative. “Reasonable doubt” would cause reasonable people to hesitate to act in important matters.

  “Extreme indifference” refers to knowingly showing an attitude of “universal malice manifesting extreme indifference to the value of human life, creating grave risk of death to others,” in the absence of insanity. “With deliberation” means intentionally and after reflection and judgment about an act such as murder or attempted murder.

  One of the jury instructions explained what would happen if they found Holmes insane. He would be committed to the Colorado Department of Human Services “until such time as the Court determines that he is eligible for release”—that is, until a judge finds that he no longer has an abnormal mental condition likely to cause danger to himself or others in the foreseeable future and is capable of distinguishing right from wrong and behaving legally. If Holmes were found not guilty by reason of insanity, he could never again be tried on the same charges.

  This set of deliberations completely ignored punishment. It was solely to determine Holmes’s sanity and, if he were found to have been sane at the time of each shooting, his guilt or lack of guilt for all elements of each of the crimes. Any finding of sane or guilty had to be beyond reasonable doubt.

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  Once the foreperson notified Judge Samour that juror deliberations were complete, the judge gave the parties and the media two hours’ notice before reconvening court to announce the verdicts. The jury had been out for less than two days, returning on July 16, almost three years to the day after the shootings and three months after the trial began. They had deliberated for about twelve hours in all, a very short time considering the amount of paperwork required for each of the charges.

  The courtroom was silent as Holmes stood beside his lawyers and Judge Samour read each of the verdict forms, beginning with the first:

  Phase Two Sentencing Verdict Form. Verdict form Count One, murder in the first degree after deliberation, Jonathan Blunk…. We the jury find the defendant James Eagan Holmes guilty of murder in the first degree after deliberation.

  The other verdicts followed suit. It took Samour an hour to read them all.

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  1 The records of early exchanges regarding who was told what about Holmes’s condition during the first week or so of his incarceration, and with whom the responsibility lay for his care, are confusing.

  15. Punishment

  “We don’t kill people for being sick.”

  (Attorney Rebekka Higgs, defending Holmes during the penalty mitigation phase of the trial)

 
The sentencing hearing began three days later. The same jury that had deliberated Holmes’s guilt would now hear testimony about how he should be punished for the murders. Any process that brings the death penalty closer is very serious. Up to three more steps, or phases, remained.

  The terminology is a little confusing. Judge Samour referred to the just-concluded guilty-or-not-guilty proceedings as the “trial.” Once the jury found Holmes guilty on all counts, a hearing ensued to determine punishment. Since twenty-four of the charges were associated with the death penalty, the jury remained a part of the decision process. The judge would deal with verdicts that brought prison sentences, but only a jury can sentence a defendant to die.

  First, the jury would hear testimony about “aggravating” factors related to the first-degree murder offenses (“phase one” of the sentencing process); then they would deliberate again. Phase two would follow, in which they would listen to “mitigating” factors, things the defense hoped would offset some of the horrors the prosecution had highlighted during the past three months, and deliberate once again to compare the aggravating and mitigating conditions.

  If they failed to agree unanimously that aggravation outweighed mitigation, the death penalty would not be authorized. The jury’s work would then be over, and the judge would decide Holmes’s sentences. If, however, all twelve found beyond a reasonable doubt that aggravation did outweigh mitigation, the jurors would return to hear arguments for and against the death penalty itself and then deliberate a final time to decide whether Holmes would live or die.

  No matter what their decisions, after the jury’s work was complete, there would be a final sentencing session at which the judge would formalize Holmes’s punishment.

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  Phase one of the sentencing process was very straightforward. Colorado law defined five kinds of aggravating conditions that the jury would consider. Had Holmes murdered more than two people in the first degree? Had he knowingly created a grave risk to additional people in killing his twelve victims? Had his first-degree murders had been committed in an especially cruel or heinous manner? Had he committed first-degree murder while lying in wait or from ambush? Had he intentionally killed a child? The prosecution needed for the jurors to agree with only one of those for the proceedings to continue toward the death penalty.

  Assistant District Attorney Rich Orman’s arguments for aggravation were, in the words of the Los Angeles Times, “brief, brutal, and riveting.” He showed the jury as much of the carnage as the judge would allow, graphic photos of those who had died and those who had survived to undergo sometimes-Herculean treatment and still be left disabled. He read every victim’s name. He argued that the killing of little Veronica Moser, shot four times, was absolutely intentional in spite of Holmes’s words of regret.

  Orman spoke of victims dying “surrounded by screaming and by pain and by anguish” from a “conscienceless … pitiless” killer. He cited the anguish that the victims, including those who were dying, must have felt for the loved ones who were with them, perhaps even greater than their own fear of dying.

  The defense knew that at least one of the aggravating factors had been proved even before the sentencing hearing began—far more than two people had been killed—and one factor would be enough.

  The jurors deliberated briefly on July 22 and returned with their decisions the next day. They accepted four of the five aggravating conditions, omitting only the intentional killing of a child. Some jurors had reasonable doubt that Holmes had purposely aimed at Veronica Moser. The process moved to phase two.

  Phase two was the defense’s best opportunity to humanize James Holmes for the jurors, to have them see something, anything, other than the single-minded killer and terrorizer of innocent moviegoers that the prosecution had relentlessly painted a few days before and throughout the trial. Attorney Rebekka Higgs told the jury that the defense accepted its verdict, then explained that a defendant can be legally sane but still seriously mentally ill. She would not describe that illness as justification or an excuse, she said, but as “a reason to choose life…. We don’t kill people for being sick.”

  The defense began to call its mitigation witnesses on July 27. Eighteen of Holmes’s former neighbors, friends, and classmates had been flown in from California for the trial. It would have been hard to find that many supporters in Colorado.

  Holmes’s sister, Chris, was among the first to testify, telling the jury about a gentle brother, the Jimmy she looked up to as a small child, who let her play with the big kids and protected her when bullies threatened. The brother and sister who built forts and threw things for the dogs to fetch. The day he finally allowed her into his secret tree house. The family closeness and Dad’s own shyness and difficulty expressing feelings. She talked about the changes she saw in Jimmy after the family moved back to San Diego from Salinas, and later as he moved into adolescence.

  The next day, Robert Holmes showed family photographs on the large screen behind the witness stand, Jimmy smiling in every one. Christmas, Disneyland, the beach, Big Bear Lake, the aquarium, camping, snorkeling. Times with Uncle Dexter and Aunt Terri, fishing, riding horses. A happy kid. A family kid. A human being.

  Arlene Holmes, perhaps the most poignant of the defense witnesses, spoke about Jimmy’s, and later James’s, mental changes, and especially about the signs that she and Robert didn’t see of his mounting problems and deteriorating ability to deal with them. She said, holding back a mother’s tears, “I didn’t realize that his loudest cry for help was his silence.”

  Other defense witnesses talked about the house on Foxtail Place, the Halloween parties where Jimmy helped the younger children through the family haunted house, playing little-kid basketball in the cul-de-sac, perfect attendance at Castroville Elementary. Former teachers used words like “helpful,” “sweet,” “exceptional,” and “a leader.”

  Martin and Katherine Barrett, neighbors in their Oak Hills suburb, spoke of family trips to a water park and a happy, shy, nonconfrontational Jimmy who fit in well. Their son Joe, now a lawyer, said Jimmy had been a good friend and a normal kid. Lori and Mark Bidwell had a son Chris’s age in Oak Hills. They talked about a shy, friendly Jimmy who was kind to younger kids and had a great sense of humor.

  Claire Vincent taught Jimmy piano for several years. He played in recitals and had duets with sister Chris. He was in the Mesa Verde Middle School band. Dad coached him at soccer. Pat Silva played on his team at Mesa Verde and Westview High; Silva said Jimmy was funny, sweet, quiet. He played other sports too, not great but a game kid, participating, trying.

  Things changed. A high school friend said Jimmy kept to himself except for a circle of quiet friends who went to movies and played paintball. A high school teacher said he was “tough to get to know.” But Barbara Martin, whose yard Jimmy mowed when he was seventeen, said he was a “model child.”

  One of the jurors became ill during the mitigation testimony. Judge Samour sent the entire jury home for the day while the defense continued to call its witnesses, their testimony video recorded and later played back for all the jurors to see and hear.

  Dr. Jeffrey Metzner was called again to testify, this time for the defense on mitigation. He reiterated his opinion, and his agreement with the other psychiatrists, that Holmes suffered from a severe mental illness, which he had diagnosed as schizoaffective disorder. That illness, he said, characterized in part by delusions that indicate psychosis, was a primary source of Holmes’s crimes. It was still present and is incurable.

  On July 30, the lawyers presented their final phase-two arguments. Judge Samour gave the jurors their instructions for their next set of deliberations.

  The jury’s task this time was to compare the aggravating and mitigating factors and determine whether or not the aggravating conditions outweighed, beyond reasonable doubt, the mitigating ones for the sole purpose of considering the death penalty. They would deliberate, discussing their thoughts and opinions with one another, but th
eir decisions were to be individual, each deciding for himself or herself. If even one juror did not find beyond reasonable doubt that aggravation outweighed mitigation, the death penalty would not be authorized, and the case would go to noncapital sentencing by the judge. If, and only if, the result was unanimously in favor of the aggravating conditions, the death penalty was authorized, and the sentencing hearing would proceed to phase three.

  This time there were twenty-two written instructions for the jurors, covering fifty-two pages. The judge read the instructions aloud, as well. They included both a short recap of the prosecution’s aggravating factors and a lengthy, detailed summary of the defense theory of mitigation, sixty-two items in all, touching on Holmes’s childhood and family life, his long history of kindness and respect for others, the absence of any other criminal history, many illustrations of his mental illness, the experts’ agreement that his illness contributed significantly to the crimes, his psychiatric treatment, wrestling with keeping his dark impulses at bay, and more.

  The instructions cautioned jurors not to consider any potential aggravating factors except the four that had been proved in phase one. They were free, however, to think of additional mitigating conditions beyond those offered by the defense and to consider mercy for the defendant if they wished. They were to scrupulously avoid information that was not part of the evidence presented during the trial, such as media coverage, public sentiment, or social prejudice.

  On August 3, the jury returned. Every juror found for aggravation for each of the twenty-four murder charges (which were eventually consolidated into twelve, one for each murder victim).

  The death penalty was authorized.

  The next step in the process, phase three, would begin the following day, after which the jury would deliberate a final time to decide between death for James Holmes and life in prison without possibility of parole. It consisted of two days of often-tearful prosecution testimony by twelve of the hundreds of victims and their family members affected by the shootings. The defense could not call witnesses in this phase.