DA Seeks Death Penalty for James Holmes

Arapahoe County District Attorney, recently elected George Brauchler, has advised the Court his office will seek the death penalty against James Holmes, charged with the Aurora theater killings.

Chief Judge William Sylvester's response: He assigned the case to another judge due to the amount of resources that will be necessary now that the death penalty is being sought. [More...]

The 2008 movie, The Life Penalty, honors former Colorado Public Defender David Wymore, who made the state defender's death penalty defense division one of the most successful in the nation through his creation of The Colorado Method, an approach to jury selection in which the defense attempts to life-qualify jurors.

How did a rebel public defender from Boulder, Colorado, throw a monkey wrench into America’s "death machine"? Slip into a juror’s seat as David Wymore and other nationally recognized criminal defense attorneys bring their fight against the death penalty to the front line: the courtroom.

Casting a revelatory and often uncomfortable light on our justice system, The Life Penalty shakes the ethical and moral foundations of capital punishment in the contemporary United States.

You can watch the trailer here.

Holmes trial is now set for Feb. 2014. In May, 2013, the University of Colorado will be host to Wymore (and NACDL's and the SCHR) death penalty training program at which the Colorado Method, which is widely credited for lowering Colorado's death row population, will be taught to capital defenders.

Join NACDL, the Southern Center for Human Rights, and the University of Colorado School of Law for this unique hands-on training program. Participants will work with David Wymore, the originator of this method of capital jury selection, and a faculty of masters of capital voir dire for two and a half packed days to learn, refine and master the art and science of death penalty jury selection.

The program teaches the Colorado Method of capital voir dire by using a combination of lecture, demonstration, and small group exercises involving real jurors. This proven method has nearly emptied Colorado’s death row and has saved capital defendants across the country. Students will learn the core Supreme Court jurisprudence and how to use it to make the judge let you ask what you need to ask.

The main components of the Colorado Method :

  • Ranking the prospective jurors on a 1-7 scale from, "Would never give the death penalty," to, "would always give the death penalty," and working to keep as many low-scoring jurors as possible.
  • Teaching the jurors that a penalty phase deliberation is not a fact-based argument, but is instead based on one’s personal moral judgment requiring each juror to answer the question, “Who do I kill?”
  • Teaching the more death-oriented jurors that they should respect a vote for life from other jurors and not try to talk them out of it.
  • Teaching the life-giving jurors that their vote for life should be respected, that they should not let other jurors talk them out of it, and that the state is always satisfied with a life sentence.
  • Teaching defense counsel that they need to "come into conflict" with jurors in order to get them to reveal their true feelings about the death penalty, something many lawyers are uncomfortable doing.

There is no question that Holmes will face an uphill battle in conservative Arapahoe County. As is the case everywhere, only death-qualified jurors can be selected to serve. Courts must exclude potential jurors who do not believe that death is an appropriate sanction in any case. Former Supreme Court Justice Stevens pointed out the pro-death bias this causes:

Most judges who preside at capital trials are elected, creating a "subtle bias in favor of death" -- since it's hard to face reelection having given a break to a killer. The jury selection process does the same. Prosecutors question jurors at length about their willingness to impose death; this creates an imbalance in juries, when prosecutors strike those with anxiety about capital punishment, and it creates an atmosphere “in which jurors are likely to assume that their primary task is to determine the penalty for a presumptively guilty defendant.”

Brauchler and his crew, which include a recently hired experienced death penalty prosecutor from Colorado Springs, may be no match for the Colorado public defender's death unit.

There are only 3 inmates on Colorado's death row. All are African-American and were charged and convicted in Arapahoe County. No one has been executed in Colorado since 1997. If Holmes is sentenced to death, it will be decades, if ever, before the sentence is carried out.

Brauchler said today that justice for James Holmes is death. He's wrong. It is merely revenge.

As the Supreme Court has said, "Death is different" from every other form of punishment, requiring additional safeguards for the defendant. Coloradans are about to relive just how different -- and expensive-- it is.

Brauchler's decision does not preclude a future plea agreement for life without parole which is what the defense has been seeking. The Aurora Sentinel and the Denver Post have both written editorials as to why life without parole is a better solution in the Holmes case, for everyone involved.

A bill introduced in the Colorado House in February to repeal the death penalty (which would have been prospective and not applicable to Holmes) has died.

A sentence to life without parole is a death sentence. Either way, Holmes would not leave prison except in a pine box. Unfortunately, the entire state will now pay for Brauchler's ill-advised decision to seek the death penalty.

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  • Display: Sort:
    This latest development is ... (none / 0) (#1)
    by Donald from Hawaii on Mon Apr 01, 2013 at 03:46:33 PM EST
    ... really a shame, given that the defendant has purportedly offered to plead guilty, simply in exchange for taking capital punishment off the table. The entire raison d'etre for city prosecutors and district attorneys is to both represent and protect the public.

    Setting aside by own personal feelings about the morality of capital punishment for the moment, I'd argue that vainglorious prosecutors in this instance are doing anything but representing the public's interest, and are further wasting both time and public resources by pushing this case to an unnecessary trial when the defendant already offered to plead guilty to felony murder. At this point, it really ceases being all about ensuring public safety, and much more about someone's pursuit of his or her personal agenda.

    And as we all saw practically first-hand during the respective murder trials of Dan White and O.J. Simpson (and others, undoubtedly) in years past, any number of things can go terribly awry for the prosecution during a "slam dunk" high-profile trial. Nothing should ever be taken for granted in court, particularly a jury verdict that's yet to be rendered.


    Objection re "vainglorious (5.00 / 1) (#3)
    by oculus on Mon Apr 01, 2013 at 06:10:04 PM EST
    prosecutors."  First of all, I am confident the responsibility rests solely on the elected District Attorney of the county in which the alleged crimes were committed, not his/her deputies. Secondly, is there information publicly available as to content of the communication of the opinions of the victims regarding charging DP/LWOP?  

    I suppose the D.A. Could poll the residents of the county. Do an IA Governor Branson maneuver (he is asking IA voters whether to release an inmate.)


    Well, (none / 0) (#5)
    by jbindc on Tue Apr 02, 2013 at 07:16:24 AM EST
    Pontius Pilate did the same thing.

    Except there was no jury trial. (none / 0) (#6)
    by oculus on Tue Apr 02, 2013 at 08:51:33 AM EST
    No, very unlikely (none / 0) (#10)
    by MKS on Tue Apr 02, 2013 at 01:09:55 PM EST
    the Gospel of John was written most likely well after 100 C.E. And defintiely after Masada and the destruction of the Jewish Temple and brutal end to the Jewish revolt.

    Pilate was a brutal dictator who according to Josephus was recalled to Rome for crucifying thousands of Samaritans.  That he would listen to a Jewish crowd on how to deal with a threat to Rome makes no sense.

    Few historians believe the Gospel accounts that absolve Pilate and places the blame on Caiaphas alone.  The accounts blaming the Jews is viewed as a political attempt to curry favor with Rome.  After the brutal end to the First Jewish War circa 70 C.E., throwing blame on the Jews and absolving Rome made a lot of sense.   Witness Jewish Josephus's own conversion to all things Roman.  



    It was a metaphorical statement (none / 0) (#11)
    by jbindc on Tue Apr 02, 2013 at 01:42:36 PM EST
    You know - based on the story.

    Barabas, the murderer was allowed to go free and all that.


    And interestingly enough, (none / 0) (#13)
    by Zorba on Tue Apr 02, 2013 at 03:35:41 PM EST
    the Aramaic translation of "Barabbas," or "bar-Abbas," means "son of the father."
    Take this in what sense thou wilt.   ;-)

    Well, what is a district attorney, if not ... (none / 0) (#18)
    by Donald from Hawaii on Wed Apr 03, 2013 at 03:45:12 PM EST
    ... a vainglorious prosecutor? Most of them are elected officials, and many have an eyeball turned toward higher office. Show me a politician without an ego, and I'll show you a loser.

    Polls out here regularly find that 70-80% of island residents oppose capital punishment. Such opposition is firmly rooted in the local socio-political culture, and those persons who advocate its reinstatement in Hawaii statute are generally ignored and dismissed as fringe.

    However, it's another political matter entirely in most states on the U.S. mainland, and as of right now, it's generally not good P.R. from an electoral standpoint for a candidate who's standing for election as D.A. or City Prosecutor to be perceived publicly as anti-capital punishment.

    Further, this has historically been such a visceral black-and-white issue with most people that it's not even wise for the candidate to play coy in an effort to avoid disclosure of one's position, because voters generally don't appreciate it when a prospective or incumbent district attorney prevaricates.

    (If that candidate is opposed to capital punishment, far better to state that opposition forthrightly and then take one's chances at the polls accordingly, in the hope that it's not a really big deal with voters in this race at this particular time.)

    I think that's what's actually in play in Aurora, which is very much a swing district in Colorado. I've long opposed capital punishment myself, for reasons having been already stated ad nauseum. But I bet most residents of Aurora and neighboring communities are probably thinking that if there was ever a case where capital punishment statutes might apply, it's this one. Thus, the legal decision to seek the death penalty against James Holmes is also a poitical one, and it came from the top.

    That said, I do have a real sense that public opinion in states such as California and Colorado is gravitating toward a more enlightened position on the subject of capital punishment, albeit grudgingly and not fast enough for me. Voters in California narrowly rejected an initiative last November which would've provided for its statutory repeal. Give it five years, put it on the ballot again, and I bet it'll pass.



    All of this confirms my feeling the other day, (none / 0) (#2)
    by scribe on Mon Apr 01, 2013 at 04:19:13 PM EST
    when the DA displayed a rampant ignorance of the law of offer, counteroffer and acceptance.  

    This DA is an ambitious pol, looking to further his career, and sees that getting a literal kill to his credit will make him that much more attractive to the likely voter in some future election.  He doesn't care how much it costs the government, the families, or anything else.  his career is paramount.

    Under a LWOP sentence, the defendant would die in prison.

    Under a capital sentence, the defendant would die in prison.

    There is some room for discussion between the two - under LWOP he might (assuming another inmate or a guard doesn't get him first) live a bit longer.  But, even at today's expensive prices for incarceration, going capital will still cost orders of magnitude more.  And this guy wants further office, with bigger budgets and greater responsibility.

    The Cost... (none / 0) (#7)
    by ScottW714 on Tue Apr 02, 2013 at 10:21:10 AM EST
    ...of a DP trial is about a million dollars.  The cost of the related appeals is about a million dollars.  The cost of housing a DP inmate is about a million dollars.

    The cost of housing a LWOP prisoner is about $50k/yr.

    These are low estimates based on this and this.  Not sure why Colorado isn't specifically addressed, but most DP states are.

    Even Fox News states this "Every time a killer is sentenced to die, a school closes." LINK

    Keep in mind, the trial itself costs the same regardless of outcome.  So if they give him LWOP they still pay the DP costs.  Ditto for the DP prisoners who die of 'natural' causes before they can be executed which is not rare.


    I'm hearing Arlo Guthrie as the D.A.'s inner voice (none / 0) (#4)
    by Mr Natural on Mon Apr 01, 2013 at 07:54:12 PM EST
    specifically, Arlo's rant at the Draft Board Shrink. Nuf said.

    One of the issues with not executing (none / 0) (#8)
    by sarcastic unnamed one on Tue Apr 02, 2013 at 12:55:38 PM EST
    convicted murderers is that they have the opportunity to kill again.

    Here are a couple quick examples:

    Female prison guard stabbed to death by convicted murderer while investigating report of contraband SHOES

    By Associated Press
    UPDATED: 14:56 EST, 21 January 2012

    Latavious Johnson stabbed and killed a female guard, police say

    A convicted murderer stabbed a female guard to death at an east Arkansas prison Friday while she was investigating whether he had an unauthorized pair of shoes.

    Police: Convicted murderer kills again

    Updated: Monday, 25 Feb 2013, 11:08 AM EST
    Published : Sunday, 24 Feb 2013, 3:46 PM EST

    DAYTON, Ohio (WDTN) - Police were called to the 2500 block of Home Avenue in Dayton Sunday afternoon on reports of a shooting.

    Police said Dameon Wesley, 39, shot two people inside the home, killing one and severely injuring another.

    Wesley was recently released from prison after serving 20 years for murder. He is on parole.

    Still, the overarching issue (5.00 / 1) (#12)
    by jondee on Tue Apr 02, 2013 at 03:04:41 PM EST
    is whether the Death Penalty contributes in any way to a decreasing of homocides, or if it just does more to perpetuate an ethos and culture of brutality and retribution that so many murderers operate under..



    commit homicides after their convictions at a higher rate than the rest of society, would not the execution of convicted murderers contribute to decreasing of homicides?

    Are there even facts (none / 0) (#15)
    by Tamta on Tue Apr 02, 2013 at 04:49:01 PM EST
    that support the deterrent  effects of capital punishment in regard to homicides?  
    capital punishment and the murder rate

    "deterrent effects" are (none / 0) (#16)
    by sarcastic unnamed one on Tue Apr 02, 2013 at 05:11:49 PM EST
    a completely different issue than what I was discussing.

    But it takes so long (none / 0) (#9)
    by MKS on Tue Apr 02, 2013 at 12:59:03 PM EST
    to execute someone that a death penalty sentence would not do much to prevent one from killing someone in prison.

    And not too many are in favor of speeding up the process given the record of wrongful convictions.