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Update: Aurora theater shooting witness-victims won't be barred from watching trial

James Holmes in court in June 2013.
James Holmes in court in June 2013.
Andy Cross/Denver Post

Update: The Colorado Supreme Court has declined to hear the petitions filed on Monday by James Holmes's attorneys. Read the high court's (brief) orders at the end of this post.

Original post: Attorneys for Aurora theater shooting gunman James Holmes have filed two petitions with the Colorado Supreme Court. One seeks to overturn an order that Holmes undergo a second sanity evaluation. That petition has been filed under seal.

Another asks the high court to reverse a ruling that victims who are also witnesses can watch the trial. In that petition, which is not sealed, Holmes's attorneys argue that allowing the victims to hear testimony will re-traumatize them and influence the way they testify.

Due to the nature of the crime, there are many victims in the case. Holmes is accused of murdering twelve people and injuring seventy more by opening fire during a midnight showing of The Dark Knight Rises at the Century 16 theater in Aurora on July 20, 2012. He has pleaded not guilty by reason of insanity.

In August 2013, Judge Carlos Samour ruled that anyone who was present in Century 16's Theaters 8 and 9 when the shooting occurred will be allowed to watch the trial, regardless of if they're one of the 82 named victims in the case or whether they'll be called as a witness to testify. In other words, they will not be sequestered.

Judge Carlos Samour in court in June 2013.
Judge Carlos Samour in court in June 2013.
Andy Cross/Denver Post

Holmes's attorneys disagree with Samour's ruling. In a petition filed on Monday (and on view below), they asked the Colorado Supreme Court to review his decision.

"There are two primary reasons why exempting victim-witnesses from the sequestration order threatens Mr. Holmes's right to a fair trial," Holmes's attorneys wrote. "The first is the risk that these victim-witnesses will improperly influence jurors and sway their decision regarding conviction and punishment. The second is the risk that attending the trial will adversely affect the testimony of these victim-witnesses."

Holmes's attorneys argue that seeing victims in the courtroom will prejudge the jurors against their client. "Because of the sheer magnitude of the tragedy that has occurred in this exceptional case," they wrote, "the presence of the sheer number of victim-witnesses who will be allowed into the courtroom...is likely to have a significant impact on the jury."

They're also concerned about emotional outbursts from victims, such as the time in January 2011 that the father of Rebecca Wingo, who died in the shooting, loudly said, "Rot in hell, Holmes!" in court shortly after a hearing was adjourned.

"Viewing the anger and sadness of the victims and their family members toward Mr. Holmes day after day for months will make the jury less able to presume Mr. Holmes innocent," they wrote, "or conduct their deliberations with fairness and impartiality."

Continue for more on Holmes's petition to the state Supreme Court.

Sitting through the trial will also re-traumatize victims, Holmes's attorneys argue. An expert hired by the defense previously opined that such trauma could influence the victims' own testimony. "Victim-witnesses attending legal proceedings in this case...are likely to have their memories modified or contaminated prior to their own testimony," Holmes's attorneys wrote in the petition.

James Holmes and defense attorney Daniel King in court in June 2013.
James Holmes and defense attorney Daniel King in court in June 2013.
Andy Cross/Denver Post

Furthermore, they say, this is a death penalty case. If Holmes is found guilty, the victims will have a second chance to testify during the penalty phase of his trial. Holmes's attorneys argue that sitting through the entire trial could change the victims' penalty-phase testimony, making it "more emotional" -- though it might be hard to know for sure.

"It would be virtually impossible, not to mention undesirable, for the defense to 'cross-examine' victims in any sort of meaningful way during any potential penalty phase...about the effect that sitting through the trial has had on their victim-impact testimony," Holmes's attorneys wrote.

They also disagree with Samour's ruling that everyone who was present in Theaters 8 and 9 on the night of the shooting should be considered a "victim" in the case. "The question is not whether the other individuals who were present in Theaters 8 and 9...should be recognized as having suffered a harm or should be treated with recognition and respect," Holmes's attorneys wrote. "Clearly, they have indeed suffered harm and are entitled to respect.

"Rather, the question is whether they meet the legal definition of 'victim' as defined in the Victim Rights Act and the answer is that they simply do not."

And even if they did, Holmes's attorneys argue that the law does not grant all victims an automatic seat in the courtroom. Instead, they claim that the law simply says that victims "may be present at all critical stages of a criminal proceeding."

Continue to read Holmes's full petition to the state Supreme Court regarding victims watching the trial and a short notice of his petition regarding the second sanity evaluation, which was filed under seal -- as well as the Supreme Court's orders declining to hear those petitions.

Petition to Reverse Ruling Exempting Victims From Sequestration

Notice of Petition to Show Why Ruling Re: New Sanity Examination Should Be Reversed

Order Declining to Hear Petition Re: Victim-Witnesses Watching Trial

Order Declining to Hear Petition Re: New Sanity Examination

More from our Aurora Theater Shooting archive: "James Holmes's attorneys ask judge to move theater shooting trial out of Arapahoe County."

Follow me on Twitter @MelanieAsmar or e-mail me at melanie.asmar@westword.com