Lawyers for Aurora theater shooter James Holmes filed a flurry of motions Tuesday seeking to find Colorado’s death penalty unconstitutional.
The lawyers, who admitted in an earlier filing that Holmes committed the July 20, 2012 massacre that left 12 dead and 58 injured during the midnight showing of “The Dark Knight Rises,” argue that Colorado’s application of the death penalty is “unguided, arbitrary and capricious” and, in some cases, “freakish.”
One motion cited years of evidence gathered by the Capital Jury Project showing that jurors in capital cases often decided to vote for execution before all the evidence had been presented, failed to understand the penalty instructions from the judge, and were predisposed to vote for death, often disregarding alternative sentences.
“At the conclusion of the evidentiary hearing, and upon review of each report submitted and testimony provided, this court will conclude what is now a sobering but undeniable reality,” the motion reads. “[I]n the real world of capital trials, real capital jurors are not making sentencing decisions consistent with state and federal constitutional mandates.”
In total, defense attorneys filed 21 motions on Tuesday, nearly all of them having to do with the death penalty. They include a motion requiring the jury to visit death row and the execution chamber in order to make a “fully informed moral choice” about imposing death. Another seeks to prevent victims and their families from testifying about the impact of Holmes’s crimes during the penalty phase. And another seeks to toss out the requirement that the jury be “death qualified,” meaning that they are screened to ensure that they could vote for the death penalty. That requirement would result in a jury predisposed to vote for death, the lawyers argued.
The defense also argued that Colorado’s capital punishment system is arbitrary because 90 percent of all murders committed in Colorado qualify for the death penalty. But in only 2.78 percent of those cases is death actually sought by the prosecution. The motion points out that of the 11 death penalty cases heard in Colorado in the past decade, eight of them were in the 18th Judicial District, where Holmes is being tried.
The defense also drew Gov. John Hickenlooper into its argument, citing his indefinite stay of execution for convicted mass murderer Nathan Dunlap earlier this year as evidence that the application of the death penalty can be unfair.
“Having described the facts of various cases in which aggravated murders have been committed but in which defendants had been given life sentences rather than death, Governor Hickenlooper found that the Colorado death penalty is arbitrary and that it is not fairly or equitably imposed,” the motion said.
It went on to quote Hickenlooper saying that whether a defendant in Colorado faces the death penalty is “simply the result of happenstance.”
The Dunlap case also took place in the 18th Judicial District. District Attorney George Brauchler told The Daily Caller News Foundation in early August that Hickenlooper’s decision to grant an indefinite stay — which can be undone by a future governor — is a sign of his weakness as a leader.
Brauchler, who is considering running for governor, is prevented by a gag order from commenting on Holmes’s motions. Earlier this year, his office rejected a proposal by the defense that Holmes plead guilty in exchange for life without the chance for parole.
Holmes has entered a plea of not guilty by reason of insanity.
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