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James Holmes prosecutor: "For James Eagan Holmes, justice is death"

Update: After DA George Brauchler announced at today's Aurora theater shooting hearing that he plans to seek the death penalty against James Holmes, Judge Carlos Samour turned his attention to defense attorneys' desire for Fox News reporter Jana Winter to reveal sources who gave her information about a notebook the suspect allegedly sent to his psychiatrist; see our previous coverage below. That meant more testimony from Sergeant Matthew Fyles, who revealed the existence of post-it note with a drawing on it in found in the same package as the notebook.

After Fyles took the stand, he was questioned by lead Holmes attorney Daniel King. During the conversation, he said he was not present at the Anschutz Medical Campus, where the package containing the notebook was received. Rather, he was at Aurora police headquarters when he was informed about the package's existence by Aurora Detective Alton Reed.

Attorney Daniel King.
Attorney Daniel King.
Photo by Sam Levin

During a telephone conversation, Fyles said, Reed told him that the package contained a notebook with unknown writing on an unknown number of pages. However, Reed also told him about other items in the package, including burned currency and a single sticky-note with a drawing on it. He did not describe the drawing.

In response to a question from King, Fyles revealed that he mentioned the notebook to a number of his colleagues at the Aurora Police Department. He advised members of the command staff and the homicide unit.

Shortly thereafter, Dori Ann Hanswirth, attorney for Fox News and Winter (who was in the courtroom for today's hearing), asked Fyles about the sticky note. But before she could get very far, prosecutor Rich Orman objected, saying the note didn't have anything to do with the contents of the notebook -- and Judge Samour agreed.

At that point, Hanswirth transitioned into a question about the unknown writing in the notebook. "I've never seen the inside of that notebook," Fyles told her.

Once Fyles finished testifying, Judge Samour deferred a ruling about whether to quash the subpoena for Winter, saying he wanted to give the defense a chance to question Detective Reed about whether he talked to anybody about the notebook. A hearing for this conversation was set for 1:30 p.m. on April 10.

Judge Samour said the hearing was important because he wanted to give the defense an opportunity to exhaust all reasonable efforts to learn the information without presenting Winter with what he referred to as a Hobson's choice -- either burn her sources and possibly ruin her journalism career or go to jail.

Winter was ordered to return to Colorado for the April 10 hearing.

Afterward, Judge Samour asked attorneys for Holmes to draft a written document waiving his right to a speedy trial, so that the new trial date could be set for February 2014. He then called a thirty-minute recess, but unexpectedly restarted the hearing sooner. As a result, some reporters were locked out of the courtroom, and by the time they got to the overflow room, the hearing was just ending.

Representatives of the court subsequently said that the waiver, signed by Holmes, was turned in to Judge Samour. It requires that the trial get underway no later than April 1, 2014.

A court spokesman also said Judge Samour encouraged the defense attorneys to decide soon whether they would like to change a not-guilty plea entered on Holmes's behalf by Judge William Sylvester, Samour's predecessor, to not guilty by reason of insanity. Samour didn't set a date by which such a change would have to be put in place, but he said the longer the defense team waited, the harder it would be for members to convince him.

Continue for our previous coverage of the April 1 hearing in the Aurora theater shooting case.

Update, 2:28 p.m. April 1: At the outset of today's hearing in the Aurora theater shooting, 18th Judicial District DA George Brauchler revealed that the state would be pursuing the death penalty against suspect James Holmes; our previous coverage is below. A new judge, Carlos Samour, subsequently took over as the topic turned to Fox News reporter Jana Winter and her potential testimony. That debate continued throughout much of the morning session -- and during a break, a shooting victim addressed his views about capital punishment in this case.

Winter reported that Holmes had sent psychiatrist Dr. Lynne Fenton a notebook containing sketches and plans for the attack -- and the defense wants to find out who leaked the information. During a January hearing, attorneys questioned the law enforcers who actually had knowledge of the notebook, including Aurora police detective Alton Reed and Aurora police Sergeant Matthew Fyles, if they had provided the information to Winter. All of them denied doing so.

At today's hearing, attorney Dori Ann Hanswirth, representing Winter and Fox News, called the matter a "side issue" that didn't have a direct bearing on the main facts of the case -- but it had impacted Winter negatively. According to her, Winter's sources are now reluctant to speak with her due to the investigation, and she's had to increase her personal security. She didn't elaborate on whether the reporter had been threatened.

Hanswirth added that when trying to determine the source of a leak, compelling testimony from a reporter should be a last resort to be undertaken only after other reasonably available sources had been exhausted.

This wasn't the case, Hanswirth maintained. Moreover, she maintained that defense attorneys didn't ask the right questions when quizzing the law-enforcement representatives who said they had knowledge of the notebook. For instance, she stressed that Winter might not have gotten her information from a firsthand source, but rather than from someone with whom that source had spoken.

"They didn't get to the main investigative points: who is talking about it," Hanswirth said. For that reason, in her view, "We are not at that last resort point."

Rebekka Higgs, a defense attorney, disagreed. She said reasonable questioning had indeed been exhausted, leaving Winter as the only person who could identify her sources. Regarding the "side issue" assertion, Higgs argued that without knowing the identity of the persons who spoke with Winter, it's impossible to determine whether the leak might have significance for the case as a whole.

Judge Samour took an active part in the discussion of these issues. He said he'd read the testimony from the previous hearing and pointed out that some of those questioned about the notebook had been asked directly if they'd shared the information with anyone else, but two officers -- Reed and Fyles -- had not been. He added that both of the latter were available for questioning. In fact, Fyles was in the courtroom at today's hearing, and when asked if he would be available should attorneys wish to question him, he said that he would.

Deputy District Attorney Rich Orman also made brief remarks about the leak inquiry. He said prosecutors don't have a dog in this particular hunt, but he offered some observations -- among them, that there's on absolute proof Winter's story is true.

Note: The original version of this post quoted Judge Carlos Samour as mentioning a specific number of law-enforcement representatives who had seen the notebook. During the afternoon session, he mentioned some others who had knowledge of it as well. We've adjusted the text above to reflect that clarification.

Continue for our previous coverage of the April 1 hearing in the Aurora theater shooting case.

During a break in the hearing, Marcus Weaver spoke to the media about DA Brauchler's decision to seek the death penalty against Holmes. Weaver was one of seventy people injured in the attack on the Aurora Century 16 theater; twelve others died.

Marcus Weaver speaks to the press earlier today.
Marcus Weaver speaks to the press earlier today.
Photo by Melanie Asmar

In Weaver's opinion, Holmes has already admitted to this guilt. The venue, he feels, was last week's court filing by his attorneys, who revealed that he was willing to plead guilty and agree to spending the rest of his life in prison without the possibility of parole if the prosecution would drop the death penalty.

Weaver conceded that hearing about the long schedule -- the trial date has been pushed back to February 2014 -- was disheartening for him.

"Mr. Holmes, if you're listening to a victim.... If you just plead guilty, we could all move forward," he said.

He also asked, "We feel you already know you're guilty, so why not just plead guilty and accept your fate?"

The time needed to pursue a death penalty case against home seemed to concern Weaver most. He didn't specifically object to Brauchler's announced course of action, and emphasized that it wasn't his decision to make -- that the other victims, as well as the prosecutors, needed to have their voices heard as well. But he implied that he could accept a sentence that would keep Holmes behind bars for the rest of his life.

Whatever the case, he urged Homes to "save us all the drama, the trouble, the court hearings" and admit what he did.

Continue for our previous coverage of the April 1 hearing in the Aurora theater shooting case.

Update, 11:30 p.m. April 1: After 18th Judicial District DA George Brauchler announced at a hearing this morning that he would seek the death penalty against suspect James Holmes in the Aurora theater shooting case (see our previous coverage below), Judge William Sylvester called for a brief recess before tackling other issues. In the time since the hearing resumed, two significant developments have taken place. The first involves the decision of Sylvester to hand over the case to one of his colleagues. The second pertains to a new trial date for the proceedings.

During the first recess, a court spokesperson informed the media that Judge Sylvester would not oversee the case in the future. His official title is Chief Judge of the 18th Judicial District, and according to a motion provided to the press, he has many responsibilities that go beyond the courtroom. His primary duty is "to ensure the smooth operation of our courts and probation department," the document says.

For this reason, Sylvester is reassigning the theater shooting case to a new judge, Carlos Samour.

The Judgepedia website notes that Samour received his undergraduate degree from the University of Colorado Denver and his Juris Doctor from the University of Denver. Prior to his appointment, he served as a Denver deputy district attorney; he's also spent time in private practice and served as a clerk in the Tenth Circuit Court of Appeals.

Samour was retained to a six-year term in his current position in 2010.

When the hearing resumed, Samour was serving as judge. Among the topics he tackled was the question of a trial date.

The trial was previously scheduled to get underway on August 5, 2013. But last week, defense attorneys argued in a motion that if the prosecution went forward with a death-penalty prosecution, the team working for Holmes would need more time to prepare.

With that in mind, Judge Samour set a new trial date for February 3, 2014. The reason, he said, was to give attorneys on both sides more time to file motions, whether they pertain directly to the death penalty or other trial issues.

The hearing then moved to the question of whether Fox News reporter Jana Winter should be compelled to testify about the law-enforcement sources who provided her information about a notebook Holmes sent to a psychiatrist. It's said to have contained "details about how he was going to kill people."

As we've reported, Holmes's attorneys want to know who violated a gag order in the case and "leaked" that information to Winter. At a hearing in December, they attempted to find the sources by questioning several law enforcement officers who had access to the notebook, which was discovered in the mailroom at the University of Colorado Denver Anschutz Medical Campus, where Holmes was a student.

The package was addressed to Dr. Lynne Fenton, a psychiatrist who had seen Holmes. Witnesses have said it contained both a notebook and burned money. A few officers admitted to leafing through the pages of the notebook, but said they didn't linger on any particular page. "I just sort of fanned through the pages with my thumb," Aurora police detective Alton Reed testified in December. Neither he nor any of the other officers said they spoke to the media about the notebook or its contents.

A Fox News attorney was arguing why Winter shouldn't be forced to testify when Judge Samour called for another recess.

Note: A previous version of the post stated that Sylvester, not Samour, served as judge after the first break. The copy above has been corrected. We regret the error.

Continue for our previous coverage of the April 1 hearing in the Aurora theater shooting case.

Original post, 9:27 a.m. April 1: Shortly after the start of today's 9 a.m. hearing in the Aurora theater shooting, prosecutor George Brauchler said that in the case of James Holmes, his office would be seeking the death penalty.

Holmes is suspected of killing twelve people and injuring seventy others at a midnight screening of The Dark Knight Rises at the Aurora Century 16 theater on July 20.

"For James Eagan Holmes, justice is death," Brauchler said.

"Prior to this moment," Brauchler continued, "I have revealed this decision to no one. Not family, not friends, not the people at the table to my right." With this last remark, he gestured to other members of the prosecution team.

Robert Holmes.
Robert Holmes.

According to Brauchler, he came to his conclusion after weighing all the input and information available to him at this time.

Brauchler pointed out that he had personally spoken to sixty family members of the twelve deceased victims, and his office had reached out to more than 800 individuals, including people who were in the theater at the time of the attack, as well as members of their families.

He took their input into account as well, he said.

Holmes was in court to hear this explanation. He did not appear to have a reaction to the statement. He was wearing a red jumpsuit and his dark hair and beard are very bushy.

As Holmes shuffled into the courtroom prior to Brauchler's remarks, he glanced briefly toward the gallery in the direction of his parents, Robert and Arlene Holmes, who were present. They were seated in the second row of the courtroom, behind the defense table.

After Bruachler's announcement, Judge William Sylvester called court into recess until 9:30 a.m. As Robert and Arlene Holmes stood, they were holding hands. While filing out, Robert put his arm around Arlene and comforted her by rubbing her back.


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