Russell Hebets Jan. 15, 2015

Jury selection for James Holmes, the man accused of killing 12 and wounding 70 others in an Aurora movie theater, is scheduled to begin on January 20. However, in a motion filed yesterday, his defense attorneys are once again seeking to continue the trial, citing the need to review new discovery that has been recently provided to them by the district attorney. The trial in the case has already been delayed multiple times, mostly at the request of Holmes’ defense team, who are public defenders. Many have expressed frustration at the multiple delays of the case and wonder how a judge can let it happen, especially in the face of overwhelming evidence against Holmes. Welcome to the world of death penalty litigation in Colorado.

Death Penalty In Colorado

In Colorado, much more so than in other states, the death penalty is a very hot button issue. While the death penalty exists on the books, Colorado has executed only one person in the last half century. Only three prisoners are currently on death row. Nathan Dunlap was scheduled to be executed last year, but in a controversial decision, Governor John Hickenlooper indefinitely postponed his execution.Whenever a district attorney announces that he or she is seeking the death penalty, the defense team will go into hyper drive and attempt to bury the state in paperwork. They will file every single motion they can think of. Literally hundreds and hundreds of motions are filed in death cases. The defense will challenge everything from the number of jurors in jury selection to the admissibility of evidence and to the constitutionality of the death penalty. Motions are particularly abundant in the Holmes case because of all of the mental health issues that surround the defendant. Even where issues of law are well established, the defense will attack these principles. The purpose behind this kitchen sink approach is to create a substantial record for post conviction appeals. If a judge makes an incorrect ruling on just one of these motions, it could overturn the conviction on appeal and result in a new trial for the defendant. Even if appeals are lost, it takes years and years for a person on death row to finally exhaust their state and federal appellate rights. In short, every day that a man on death row lives is a victory for him and his lawyers. Delay is good for the defendant- the more the better.

This defense approach creates a dilemma for judges and prosecutors alike. Both generally want to get the case resolved expeditiously. However, the last thing either wants is for a case to get reversed on appeal where they have to do the whole thing over again. Because of this, a judge will always err on the side of providing more time to the defense if they request it. They know that a higher court will carefully review the record to make sure the Defendant is treated fairly. Thus, in the Holmes case to date, the judge has granted every motion to continue the defense has submitted, even though he appears to grow more and more frustrated with the delays, and even though two and a half years have gone by.

Time is Money

An aside to these considerations is this- many who are familiar with these issues of capital punishment litigation in Colorado are opposed to the death penalty not because of the moral or ethical considerations involved, but because of the cost, in terms of time and money. The district attorneys and public defenders assigned to the Holmes case are working on nothing else. So are the multitude of victim advocates, investigators, paralegals and police officers and court staff who are preparing for the trial. All of these people are funded by Colorado taxpayers. The trial will take months, say nothing of the motions hearings and other court proceedings that accompany the trial. And this is just the trial phase. Assuming Holmes gets convicted and receives the death penalty, it remains to be seen how many years of appellate litigation will take place before any execution occurs, if it ever does.

In short, a death penalty case in Colorado will always move at a snail’s pace. We shall soon see whether the Honorable Carlos Samour continues to give the defense latitude, or whether he has had enough.