CENTENNIAL–James Eagen Holmes was charged Monday with 142 felony counts related to the Aurora theater massacre, intensifying speculation as to whether prosecutors will seek the death penalty.
District Attorney Carol Chambers charged Holmes with 24 counts of first-degree murder and 116 counts of attempted murder, as well as one count of possession of an explosive device and one count of unlawful use of a deadly weapon, known as a sentence enhancer.
Twelve people were killed and 58 were wounded in the shooting. The 24 first-degree murder counts represent two counts for each of the 12 deaths: one count of premeditated murder and one count of murder with extreme indifference to the value of human life.
First-degree murder carries a maximum sentence of death and a minimum sentence of life in prison.
That Chambers refrained from filing additional charges, such as explosives violations related to the booby-trapping of Holmes’ apartment, indicates the prosecution’s confidence in its case, said legal experts.
Indeed, at this point Holmes’ role as the gunman is not seriously in doubt. Consequently, the critical question becomes whether the prosecution will push for the death penalty, and if so, whether the defense can raise enough red flags to bargain down the sentence to life in prison.
“This is hardly a whodunit,” said former Denver chief deputy district attorney Craig Silverman. “You don’t just have premeditation, you have months and months of premeditation. That’s all this case boils down to: Is he going to be sentenced to death or not?”
Chambers has said she will consult with the families before making that decision, but few doubt that she will pursue the death penalty. Two of the three men on Colorado’s Death Row were put there by the Republican Chambers, who has established a record as a strong supporter of capital punishment in appropriate cases.
“She is by far the most aggressive prosecutor in seeking the death penalty in our state,” said Sam Kamin, director of the Constitutional Rights & Remedies program at the University of Denver law school.
Race could also play a factor in the decision. The three men on Death Row are black, and none of them was accused of killing as many people as is Holmes, who is white. The closest is Nathan Dunlap, who was convicted of murdering four employees at a Chuck E. Cheese restaurant in 1993.
“My theory is that there will be profound consequences for capital punishment in Colorado and elsewhere if Holmes doesn’t get the death penalty,” said Silverman. “There are three black guys on Death Row. None of them killed 12 people. The question that will be raised is, ‘How can you let this white guy off?’”
Experts say the defense’s best bet lies with having Holmes undergo a mental-health evaluation. If his attorneys can show him incompetent to stand trial, they can delay his day in court indefinitely. If Holmes is found not guilty by reason of insanity, he cannot be sentenced to death.
The wild card is that Chambers is term-limited and won’t be running the prosecution for long. Voters will select her replacement as district attorney in the 18th Judicial District in the Nov. 6 election, with the newly elected prosecutor taking office in January. Given the hearing schedule set forth Monday, it’s likely that Chambers will have packed up her office before the prosecution is required to make the death-penalty call.
District Court Judge William Sylvester set the preliminary hearing in the case for Tuesday, Nov. 13. The deadline for a decision on whether to seek the death penalty is 60 days after the arraignment, which has not been scheduled but will come after the preliminary hearing.
Even if Chambers does have time to enter a motion for a death sentence, her successor is not obligated to abide by that decision. The two candidates vying to replace her are Republican George Brauchler and Democrat Ethan Feldman, both of whom have declined to discuss the specifics of the case, saying it would be inappropriate while Chambers remains in charge.
At a candidates’ forum Monday conducted by KUSA-TV, both said they would be willing to pursue capital punishment under the right circumstances.
“I think there are cases where it’s appropriate to seek the death penalty from a jury,” said Feldman, a former deputy chief prosecutor and chief judge in the 18th Judicial District. “If I see that a case is appropriate, then I will make the appropriate decision.”
Brauchler, who worked on prosecutions related to the 1999 Columbine High School shooting as a deputy district attorney in Jefferson County, said that he had sought the death penalty in a case during his tenure as a military prosecutor in Iraq.
“It’s not theoretical for me,” said Brauchler. “In the right case, I’m willing to pursue the death penalty.”