Mitigating factors won’t save James Holmes from possible death sentence

The trial of Aurora theater shooter James Holmes in August 2015.

James Holmes is still eligible for the death penalty, a jury determined Monday.

After three hours of deliberation, all 12 jurors have decided that the mitigating factors of the case, including Holmes’ mental illness, normal childhood and relationships with family and friends, do not outweigh the aggravating factors of his crimes. During the next phase of the sentencing trial, each juror must make the individual decision, answering the moral question of whether to sentence Holmes to death.

“When does mitigation outweigh aggravation?” defense attorney Tamara Brady asked jurors during her closing arguments Thursday. “When the mitigation is the cause of the aggravation. The mental illness…the psychosis is what caused James Holmes to shoot the people in the Century 16 theater.”

Brady encouraged jurors not to drag out the trial unnecessarily, urging them to speak up now if they don’t think they will be able to sentence Holmes to death. Monday’s verdict shows that not a single juror spoke up.

In a case like this, that’s not uncommon at this stage, said defense attorney David Lane.

“Jurors will frequently say, ‘Yes, the crime was so horrendous that there could be nothing worse. The aggravation outweighs the mitigation,'” he said.

But Holmes’ mental illness may still save his life in the next phase.

“A number of jurors might feel, in their own personal judgements, that it would be wrong to sentence a mentally ill person to death,” Lane said.

Former prosecutor Bob Grant disagrees. “I think it’s odds on that they will find a death penalty verdict,” he said.

To Grant, the best argument in Holmes’ defense is one his attorneys failed to make. “I don’t think they’ve made the right argument, and that argument is that society could have prevented this. I think they were just banking on the sympathy factor.”

The defense is unlikely to present any more evidence during Phase 3, Grant said. Jurors can expect to hear more emotional testimony from shooting victims about how the crime has impacted their lives.

Court will resume Tuesday at 10 a.m.

Correction 8/3/2015: Initially, this article identified Bob Grant as a prosecutor. He is actually a former prosecutor. 


  1. Gotta love “death qualified” juries: It’s the way blood thirsty prosecutors kills the mentally ill (and previously, the mentally handicapped) by unconstitutionally denying a defendant a jury of his peers. Instead, the defendant gets a jury of 12 biased in favor of the prosecution.

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