And so it starts: Six things to watch for in the Aurora shooting trial

We all remember hearing the news. Coloradans woke one hot July morning to word of another mass murder in Denver’s suburbs. Thirteen years after Columbine, terror again struck a place folks figured they were safe – a theater packed with Batman fans. They were there to watch a fictitious mercenary plot to destroy Gotham City. But that night the bad guy was real. And so were his bullets, hundreds of rounds of them, and the holes they made. So many holes. Twelve people died. Seventy were injured. And the rest of us were haunted by the mugshot of the orange-haired gunman in the orange jumpsuit, his eyes at once wide yet blank.

Thousands of news stories have been written about The Dark Knight Rises shooting. Still, nearly three years later, big question marks still punctuate the case.

Unlike Columbine shooters Eric Harris and Dylan Klebold, James Holmes lived to make it to trial. It starts today in Centennial. Over the coming months, he’ll sit day after day in a courtroom watching details spelled out in slow motion from his victims’ memories.

Holmes’ guilt or innocence pivots not on whether he was the shooter. He was, no question. The question is whether he was legally insane, a determination that dangles on the thin line between two words: right and wrong. Mental illness – which Holmes clearly has – isn’t enough to save him. If a jury finds he was mentally ill yet knew shooting up a crowd of theater-goers was wrong, he could face the death penalty. Right or wrong. That’s the law in Colorado.

Here’s what to know, watch for and consider as the trial begins:

The basics

Holmes faces 166 charges, including 24 counts of murder — two for each person killed at the Century 16 theater on July 20, 2012. Opening statements begin at noon today at the Arapahoe County Justice Center, where the crowd will be big and security extra tight. The guilt/innocence phase is expected to last three months. The witness list will include victims’ families, survivors, law enforcement officials, forensics specialists and lots of mental health experts. Should the jury hand down a guilty verdict, the sentencing phase would follow. Because it’s a death penalty case, that phase could take months.

The lights are on. Is anybody home?

Holmes’ affect has been eerily flat during the many court hearings leading to trial. He isn’t expected to take the stand and has done little to help with his defense. But all eyes will be on him, on his own eyes, and what – if anything – jurors see behind them. Holmes’ brain will be on trial.

Among the key evidence is a journal notebook he wrote before the shooting and reportedly sent to a University of Colorado psychiatrist. His psychiatric evaluations and testimonies by brain experts will take weeks to present at trial. Holmes’ defense will do its best to impart his humanity, focusing mainly on his mental illness – schizophrenia that’s genetically wired in his family.

District Attorney George Brauchler will, in contrast, portray Holmes as a fully competent evildoer and plotting puppet master who’s smart enough to have excelled academically and to know that shooting up a crowded theater is wrong. The narrative will be that, by virtue of his intelligence, Holmes is capable of hoodwinking us into thinking he’s insane.

The jumbotron

Let’s face it.: This trial is as much political as it is legal. Dozens of survivors, victims’ families and law enforcement officials have been waiting nearly three years for the catharsis of having their day in court. To illustrate their stories, there will be screens, big ones, with images of Holmes’ weapons, body armor and high-round magazines. There will be photos of bullets strewn all over the theater and the explosive booby-trap Holmes built to mess with police who’d inevitably comb through his apartment. There will be pictures of bullet wounds and dead bodies in pools of blood. And there will be testimony – weeks of it — by survivors and first responders not just about the horror of the shooting, but of its three-year aftermath.

DA Brauchler’s goal will be to supersede jurors’ natural religious and social beliefs not to kill people with a sense of righteous retribution. Noted criminal justice psychologist and scholar Craig Haney wrote about this strategy in his book, Death by Design: Capital Punishment as a Social Psychological System.

“The structure of a capital trial ensures that the ‘weapons and wounds, instrumentalities and effects’ of the defendant’s violence will always precede any acknowledgment of the humanity or personhood of the one responsible for it,” Haney wrote. “Accordingly, many capital jurors will be frightened of the defendant and provoked to punitive and vengeful feelings, long before they are exposed to any other information about him.”

Taking sides

If you didn’t directly know any of the Holmes’ victims, chances are you know somebody who knew one once- or twice- removed. There was the affable sports writer, the toothless six-year-old, the veteran who saved his girlfriend by pushing her under a seat, the divorced real estate appraiser, the high school lacrosse player, and the would-be school guidance counselor. And the list goes on.

In their memory, and in solidarity with the longer list of survivors, there’s wide support for Brauchler – a politically ambitious Republican — and, for the most part, for his efforts to seek the death penalty.

Holmes, for his part, has almost no constituency. His parents Robert and Arlene Holmes live in southern California and have been publicly silent and privately unhelpful to their son’s defense team. Arlene Holmes recently published a book of prayers that illuminates nothing about her son other than the pain he has caused her.

Ideologically, the defense team has backing among opponents of capital punishment. Still, despite the potentially mitigating factor of Holmes’ mental illness, death penalty abolitionists are staying mostly mum about the case, figuring that what happened in Aurora was too big and bloody to help their cause. In the meantime, Gov. John Hickenlooper, who two years ago called for a “statewide conversation” about the death penalty, hasn’t started to converse. The fact that Colorado’s most notorious capital case is going to trial apparently isn’t forcing any such policy discussion.

That leaves one rather small and softly spoken group of sympathizers: members of the mental health community who are concerned the jury will overlook Holmes’ schizophrenia. Psychiatrists and psychologists, by nature of their work, are apt to keep quiet. None interviewed agreed to have his or her name attached to their comments. “We worry about a lynch mob mentality that clouds the view of how truly sick this man is,” one Denver psychiatrist told The Independent. “Putting James Holmes on death row doesn’t address the core problem here – the dark truths about people walking among us with serious mental illness.”

The jury

It took months to pick the twelve jurors and twelve alternates from a pool of 9,000 potential candidates. There are 19 women and five men. Despite pro-death penalty leanings in the 18th Judicial District – which encompasses much of southeast Denver suburbia – the jury consists heavily of educated professionals who rate fairly neutral about capital punishment. Seven of the 12 seated jurors are “threes” on a one-to-five scale that rates their propensity for the death penalty. The scale is part of what’s known nationally as “the Colorado Method,” a strategy for picking jurors who won’t mete out death. If jurors find Holmes guilty and lean toward a death sentence, Holmes’ defense needs just one holdout to keep him off death row. Jurors in the sentencing phase may ultimately have to weigh the mitigating favor of Holmes’ schizophrenia against the magnitude of the shooting.

Potential fallout

DA George Brauchler made a potentially career-defining calculation to seek death – and, therefore, go to trial — despite Holmes’ known mental illness. If the up-and-coming Republican wins in court, he’ll be the face behind an effort to kill a sick man – hardly a political badge of honor in a state with mixed feelings about capital punishment. If Brauchler loses, there will be no closure for many victims, their families and others who want Holmes on death row. What Brauchler has most to gain is the name recognition that comes with trying a several-month capitol trial the nation will be watching.

Aside from political fallout, there’s potential fallout from civil liability. There’s no doubt that one of the worst acts of violence in Colorado history will trigger a long string of civil suits. Evidence in those lawsuits will stem largely from the Holmes criminal trial. A major target of civil litigation likely will be the University of Colorado, where Holmes was a graduate student studying neuroscience. In question is what, if anything, CU’s faculty – including a CU psychiatrist Holmes reportedly forewarned of the shooting – could have done to prevent the attack. Also in question is how the state’s premier university system whose public funding is relatively low could withstand a spate of civil liability suits.

Photo Credit: Luis Rasilvi, Creative Commons, Flickr.