Judge dismisses fifth juror in the Aurora theater shooting case

Judge Carlos Samour dismissed a fifth juror today in the James Holmes death penalty trial in Colorado. Holmes is accused of killing 12 people and wounding 70 at the premier showing of a new Batman film at a movie theater in Aurora, Colorado. Before I discuss the situation with the jurors, I am going to provide some context regarding what the jury will have to decide.

Hplmes entered a plea of not guilty by reason of insanity, which admits that he was the gunman. The trial is in the guilt/innocence phase now and the only significant issues for the jury to decide in this phase is whether he could distinguish right from wrong and knew that shooting those people was against the law.If the answer to those questions is yes, then the jury will reject the insanity defense and convict him of the charges against him.

Seems pretty clear to me that he was psychotic at the time of the shooting, but that’s not sufficient to satisfy the legal test for insanity. Therefore, that most likely means that the jury will convict him and the trial will proceed to a penalty phase. After both parties rest at the end of the penalty phase, the jury will then have to decide whether to sentence him to death or life without possibility of parole.

Now let’s take a look at what is going on with this jury. The fifth juror who was dismissed today volunteered that she recognized a witness in the case. She revealed that she know the witness because she works at a school where the witness’s son is a student. NBC News is reporting that the juror said she remembered that the witness’s child had been in therapy because of the shooting rampage.

Our judicial system recognizes that jurors who know witnesses and something relevant about their circumstances probably will be either biased or prejudiced against a party to the lawsuit and for that reason the should be dismissed. The juror’s knowledge of the witness, who is the mother of a child who was psychologically traumatized by the shooting, raises a legitimate concern that the juror’s personal knowledge of that situation may prejudice her against the defendant. Therefore, I agree with the judge’s decision to dismiss the juror.

This woman was the fifth juror dismissed by the judge during the trial. The first three were because they violated the prohibition against discussing the case during the trial. The fourth juror was dismissed because her brother-in-law was shot during am armed robbery. I agree with the court’s decision to dismiss her because that incident probably impacted her ability to fairly and impartially decide the case.

What impact will the dismissal of five jurors have on the case? It would be a problem if less than 12 jurors were left to decide the case. Fortunately, the trial started with 24 jurors (12 jurors and 12 alternates. Now, they are down to 7 alternates, so they have plenty to spare.

Incidentally, I disagree with the prosecutor’s decision to seek the death penalty in this case. Mental illness is a significant mitigating circumstance and I believe it’s unlikely that the jury will sentence him to death for the simple reason that he did not choose to be mentally ill. The accountability argument loses a lot of steam when the defendant is mentally ill. The decision to seek the death penalty despite strong mitigating evidence was irresponsible.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.


  1. Molly
    June 17, 2015 at 6:54 pm

    Fascinating as always, Fred. I have nothing intelligent to add, but I always read your posts.

  2. Frederick Leatherman
    June 17, 2015 at 8:54 pm

    Thanks, Molly. I probably see this case somewhat differently than most people because I’ve tried death penalty cases. The facts of the case do not appear to be in dispute and Holmes has already admitted that he knew that he was violating the law when he went on that shooting spree. That admission defeats the insanity defense. Therefore this is a penalty phase case and his mental illness constitutes strong mitigation evidence. It’s so strong that a death penalty is kind of a long shot. For that reason, most professional and ethical prosecutors would not be willing to commit substantial resources that are needed elsewhere in order chase a long shot outcome.

    This has always been a plea case and it likely could have been resolved long ago by a guilty plea in exchange for an LWOP sentence.

    The prosecutor’s refusal to agree to that outcome is selfish, unprofessional and unwise.

  3. dubinsky
    June 17, 2015 at 9:09 pm

    ” Incidentally, I disagree with the prosecutor’s decision to seek the death penalty in this case. Mental illness is a significant mitigating circumstance and I believe it’s unlikely that the jury will sentence him to death for the simple reason that he did not choose to be mentally ill.”

    WHY should you disagree? why shouldn’t it be up to the jury?

  4. Frederick Leatherman
    June 18, 2015 at 1:01 am

    We’re talking about 2 different things. You’re right in the sense that the jury will ultimately decide whether to impose the death penalty. However, the death penalty would not be an issue in the case, if the prosecutor had decided not to seek it.

    I disagree with his decision to seek it.

  5. dubinsky
    June 18, 2015 at 1:27 am

    and I asked why you disagree……. because I think that the decision should be made by the jury and not by the attorneys.

    attorneys aren’t any more qualified in medicine than are jurors, AFAIK.

  6. Frederick Leatherman
    June 18, 2015 at 3:50 am

    Our legal system doesn’t work that way and for good reason. Police make the arrests and prosecutors decide what charges, if any to file. A jury doesn’t enter the picture unless the defendant pleads guilty and demands a jury trial.

    Charging decisions should be made by lawyers because they are trained to examine a set of facts and identify what criminal laws may have been violated. After they figure out which crimes were violated, they have considerable discretion to decide which crimes to charge.

    In jurisdictions that use grand juries to charge people with felonies, a prosecutor will prepare an indictment listing the felonies they want to charge and present it to the grand jury together with the evidence that supports the charges. Then the grand jury votes to decide whether probable cause supports the charges. If the answer is ‘yes, the foreperson signs the indictment.

    In death penalty eligible cases, the prosecutor has an additional 30-60 days after the indictment is filed to decide whether they want to seek the death penalty. That decision usually will be based on whether they believe they can unanimously persuade a jury beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances.

    Experience has shown that most jurors are reluctant to vote for the death penalty, if the defendant was mentally ill when he committed the crime. Mental illness is not a matter of personal choice. It’s an illness and most people are reluctant to vote to kill someone who was sick when they committed the crime. It’s morally repugnant to kill someone whose brain functioning was impaired due to a mental disease or defect.

    That’s why I would not have filed the notice of intent to seek the death penalty in the Holmes case, assuming I were the prosecutor.

    Does that more complete explanation respond to your concerns?

    We death penalty lawyers refer to compromised brain functioning caused by a mental disease or defect as a hole-in-the-brain defense.