Russell Hebets June 10, 2015

On Tuesday, Judge Samour dismissed three jurors from the Aurora theater shooting trial, which is on its 29thday of proceedings. That leaves 21 jurors; 12 designated and 9 alternates.

Why were the three jurors dismissed?

Juror #673 gave the judge a note on Tuesday morning, indicating that she had overheard a few other jurors discussing social media related to the trial. Juror #872 allegedly talked on the phone with her husband about a tweet that District Attorney George Brauchler sent during court on Thursday, June 4th. Juror #872 then discussed this and a motion for a mistrial with jurors #412 and #495. When questioned, juror #412 denied any exposure to social media, but the judge ultimately found her answers to be untruthful. Juror #495 confirmed that juror #872 was using her phone to look up information about the trial. Juror #872 stated her husband did call her about Brauchler’s tweet, but denied that she knew what the tweet actually said. However, because of what she overheard, juror #673 was able to repeat the tweet almost word for word.

After discussing the matter with both the prosecution and defense teams, Judge Samour decided to dismiss jurors #872, #412, and #495 for ignoring his instructions on avoiding any news coverage about the trial. The defense moved for #673 to be excused as well, but the judge commended this juror’s honesty and had the juror swear she could still be unbiased during the remainder of court proceedings.

District Attorney’s tweet posted during trial

“I agree on the video. I hope the jury thinks so too,” is the tweet that District Attorney George Brauchler sent during court proceedings on June 4th, regarding evidence in the trial. The tweet was sent out during the defense’s cross examination of a psychiatrist called by the prosecution. Brauchler claimed he was trying to respond to a text message but sent the tweet as a mistake. He claims he then quickly deleted the tweet. On Friday, June 5th, a defense attorney brought the tweet to Judge Samour’s attention, arguing, “If the prosecution is seeking the execution of a man, perhaps the district attorney should pay attention to the cross-examination of a mental health expert rather than chatting on social media.” Allegedly, this post is what prompted the phone call from Juror #872’s husband, asking ‘why that idiot was tweeting from court.’ Judge Samour scolded Brauchler for the posting, while Brauchler called it “an embarrassing mistake.” An embarrassing mistake indeed, as this is potentially what prompted the dismissed jurors to discuss news coverage about the trial in the first place.

How were the 24 jurors selected?

The jury selection process for this trial took several months to complete. Initially, 9,000 individuals were summoned for jury duty in December 2014. After about 3,000 failed to appear, the remaining 6,000 filled out an extensive questionnaire that led to all being dismissed except for 1,300. These 1,300 potential jurors were then questioned individually by the judge, the prosecution team, and the defense team. By April, 115 potential jurors remained for a final phase of questioning. Ultimately, by April 14th, the final 24 jurors were selected, with 12 designated jurors and 12 alternates. Only the judge in this case knows which jurors are designated and which are alternates.

This process was so lengthy and arduous because of how high the stakes of this trial are. The trial is predicted to take 6 months to complete, and jurors have to be able to take off work during that time. Additionally, this case received national news coverage and many people have already formed opinions on James Holmes’ guilt and whether or not he should receive the death penalty. Throughout jury selection, the court needed to find jurors who either had not been significantly exposed to the media or who swore they could ignore what they already knew, and only consider the facts presented at trial.

Importance of an unbiased jury

The goal of the jury selection process was to find 24 jurors who were as unbiased as possible. In a case as high profile as this one, juries in the past have been sequestered, meaning they are asked to stay completely isolated from society and only be allowed to interact with each other and the court. Sequestration is meant to keep the jurors as unbiased and free from accidental or deliberate tainting as possible. Sequestration of this kind is rare, but judges attempt to mitigate the fear of a biased jury by instructing the jurors to not talk about the case with anyone and avoid the news. The 24 jurors in the Aurora theater shooting trial are not being sequestered, so Judge Samour has repeatedly instructed the jurors to avoid any news coverage as well as refrain from discussing the trial with anyone, including family and fellow jurors.

Grounds for a mistrial?

If it was truly the reason the dismissed jurors were discussing the case against Judge Samour’s instructions, Brauchler’s tweet is both an embarrassing mistake and a costly one. If there is evidence of the jury being biased, the defense will have grounds for a mistrial. A mistrial is essentially the cancellation of a trial before a verdict has been given. The prosecution could pursue the charges again in a new trial. This however would be very costly for the state to do. The Aurora theater shooting trial has already cost Colorado tax payers $2.2 million just for the pre-trial phase of the proceedings. That price tag only includes the prosecution’s costs, as the Public Defender’s Office refuses to disclose their financial statements, citing attorney-client privilege. Additionally, the $2.2 million does not include any trial costs. This includes jury compensation, which is $50 per juror per day of trial. If the defense moves for a mistrial on the grounds of jury bias, the judge would have the grounds to declare a mistrial. This would cost Colorado even more in taxpayers’ d